Were the Texas Rangers Negligent in Failing to Control Kenny Rogers?

My dean, Jim Rosenblatt, alerts me to a recent personal injury lawsuit filed by Larry Rodriguez, a cameraman for Dallas-Fort Worth television station KDFW, against both the Texas Rangers and their pitcher, Kenny Rogers, for civil liability arising from Rogers' attack of Rodriguez on June 29, 2005. Following the attack, Major League Baseball suspended Rogers for 20 games, and he has also been arraigned on misdemeanor assault charges related to the incident.

This case presents an interesting issue in tort law: Did the Texas Rangers have a legal duty to prevent Rogers from attacking the cameraman, particularly when the Rangers might have known of Rogers' unique proclivity for violence (i.e., Rodriguez claims that Rogers had shown previous signs of anger, and the Rangers did not act)? In other words, were the Rangers negligent in their supervision of Rogers? Did they assume the risk by not taking earlier actions to regulate Rogers' behavior, as well as actions to prevent Rogers from close, physical contact with media?

As a general matter, an employer may be liable for the actions of an employee through the principle of vicarious liability, which arises when the negligent actions of an employee are within the scope of his/her employment. Vicarious liability is premised on the notion that employers are in the best position to monitor their employees, and the law should create economic incentives for employers to safeguard against their employees' tortious behavior. For that reason, employers have powerful incentives to conduct employee training, as well as to conduct early intervention should an employee engage in improper behavior -- otherwise, those employers may be held liable, particularly if the "reasonable" employer would have conducted such training or engaged in such intervention. Vicarious liability is also premised on a separate, and far more pragmatic notion: employers typically have "deeper pockets" than their employees, and courts prefer redress for wrongfully injured plaintiffs through economic redistribution (rich company pays off injured person) rather than personal retribution (injured person seeks revenge against poor employee).

As you can imagine, there exists a great deal of debate as to which activities are "within the scope of employment" and which are not. In the case of Rogers, however, his attack occurred during pre-game stretching, an activity which appears almost certainly within the scope of his employment. Therefore, the two key questions are: 1) To what extent were the Rangers aware of Rogers' alleged proclivity for violence, and did they do anything about it?; and 2) Are the Rangers' "standard operating procedures" for employee training and early intervention sufficiently similar to other pro sports teams and particularly baseball teams?

At first glance, the first question does not appear to generate an answer adverse to the Rangers' interests. Granted, in July 2003, Rogers was suspended five games for throwing at Milton Bradley of the Cleveland Indians. But that doesn't prove much; many pitchers have thrown at batters and been suspended, and I don't believe that is evidence of proclivity for violence. Also, back in 1995, Rogers said that he would sit out the season rather than accept a one-year contract offer from the Rangers. Those comments may have damaged his reputation as a "team player," but, again, they prove irrelevant in determining proclivity for violence. If anything, actually, Rogers appears to be well respected by his teammates: In a 2004 interview with the Chicago Tribune concerning which athlete would make a good President of the United States, Rogers' teammate, Jeff Zimmerman, nominated Rogers, saying, "Kenny Rogers is very influential in the clubhouse. I really, really respect what he has to say." (Jimmy Greenfield, "What Major Leaguer Would Make a Good President?," Chi. Trib. 9/24/2005).

There may be one notable exception, however: On June 17, 2005--a mere 12 days before his attack of Larry Rodriguez--Kenny Rogers attacked a water cooler after not pitching well against the Washington Nationals. On the other hand, attacking a water cooler and attacking a human being seem quite distinct, and I'm not sure the Rangers should have perceived his water cooler attack as a forerunner to a human attack.

As to the adequacy of the Rangers' standard operating procedures for ensuring safety, it might prove revealing that in July 2004, Rangers' reliever Frank Francisco threw a chair at a fan, which led to criminal liability -- particularly given its recency, that incident might undercut the Rangers when advocating their player control effectiveness. Then again, there does not appear to be other evidence that casts the Rangers as uniquely bad in their safety training or intervention activity; perhaps the Francisco and Rogers incidents are sufficiently isolated.

We'll continue to monitor Rodriguez v. Rogers & the Texas Rangers.

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