A California court has agreed to hear a claim for vicarious liability against US airline Virgin America following an alleged sexual assault by one of its former executives.

Judge Donna Ryu in the US District Court for the Northern District of California held on 22 October that the plaintiff had adequately argued that the man’s conduct fell within the scope of his employment, rejecting attempts to have the case thrown out by Virgin America and its soon-to-be parent Alaska Airlines.

The plaintiff, an unnamed Texas resident, alleged that Virgin’s former director of loyalty Stuart Dinnis sexually assaulted her in a hotel after they had both attended a conference and trade show in Toronto in late 2016.

She claimed that, at the time the incident took place, Dinnis was known at Virgin for “lewd and drunk behaviour in front of business associates” and for “sexually assaulting business associates”, but that the airline had taken no action against him.

As Dinnis was acting as a representative of Virgin when he attended the event where the alleged assault took place, his conduct was “broadly incidental to the enterprise undertaken by Virgin”, the plaintiff claimed. As such, his actions were “an outgrowth” of his employment and the “risk of tortious injury” due to Dinnis’ alleged behaviour at the event was “inherent in the working environment”.

The plaintiff filed a complaint against Dinnis, Virgin and Alaska, on 23 April 2018 under the doctrine of respondeat superior, which allows employers to be held vicariously liable for acts committed by employees in the scope of their employment.

The airlines argued that they could not be found vicariously liable for Dinnis’ alleged actions as sexual assault was “outside the scope of his employment” and “did not serve any purpose” of his employer.

The court noted that, under Californian law, the test to determine if an employee is acting outside the scope of their employment is whether their conduct is “not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business”.

An employer can be found vicariously liable for an employee’s act if the incident was an “outgrowth of the employment” or if the risk of injury was “inherent in the working environment” or “typical of or broadly incidental to” their business, the court said.

The respondeat superior doctrine is intended to prevent further injuries, assure compensation to victims and spread losses equitably, the court noted in its analysis, adding that it needed to look at “the foreseeability of the employee’s conduct” in making its final decision.

Nevertheless, the court found that the plaintiff had “alleged sufficient facts supporting her claim that Dinnis was acting within the scope of his employment at the time of the alleged assault” for the case to proceed.

The court emphasised that it had not expressed an opinion as to whether allegations that the airlines employed Dinnis in California or made the decision in California to send him to the conference were sufficient to make claims against them in the state.

Whether an employee was acting within the scope of their employment becomes a matter of law, rather than a matter of fact, only when “the facts are undisputed and no conflicting inferences are possible”, the court added.

In the United States District Court for the Northern District of California

Jane Doe v Virgin America Inc. et al.

  • Judge Donna Ryu

Counsel for Plaintiff (Jane Doe)

  • Andrus Anderson

Partners Jennie Lee Anderson and Lori Erin Andrus

Counsel for Virgin America Inc. and Alaska Air Group Inc.

  • Cornerstone Law Group

John Calvin Brown III and Paul Joseph Byrne, Esq.