A Missouri woman who claims a Chuck E. Cheese mascot groped her breast has sued the operator of Chuck E. Cheese restaurants in a case that could hinge on whether the alleged groping “naturally arose” from the mascot's patron-greeting duties.

Cases involving employer liability for an employee's sexual assault on a patron tend to be very fact-specific. And it's probably safe to say there hasn't been a case with facts quite like the alleged assault on Jennifer Sorbello by a man dressed as a mouse.

Sorbello alleges in a complaint filed April 28 that William Thigpen “touched and groped [her] breast with his hand” while performing as the Chuck E. Cheese mascot at a Chuck E. Cheese restaurant in St. Louis. The restaurant's operator, CEC Entertainment (NYSE: CEC), is named as a defendant under the common-law theory of “respondeat superior” or vicarious liability.

“Greeting patrons ... while costumed and disguised as 'Chuck E. Cheese' was a task within the course and scope of Thigpen's employment,” the suit says, and Thigpen was “engaged in such duty” when he allegedly groped Sorbello.

There is no allegation that Thigpen had previously been inappropriate, which could have made CEC liable for negligent supervision.

UPDATE The Riverfront Times, an alternative newsweekly in St. Louis, has posted a purported photo of the groping. The mascot appears to have his right hand on the left breast of a startled-looking woman identified as Sorbello.

Missouri jury instructions define the phrase "scope and course of employment" as acts which “even though not specifically authorized are done to further the business or interests of the employer” and which “naturally arise from the performance of the employee's work.”

In a case involving a bouncer's assault on a bar patron, the Missouri Court of Appeals said the second requirement of the instructions, “by its use of the word 'naturally,' implies that the employee's conduct must be usual, customary and expected. This amounts to a requirement of foreseeability.”

Applying that test, it found the owner of the Shady Grove Saloon was not liable for the patron's injuries because the assault “exceeded reasonable bounds and was excessively violent and not to be expected by his employer.” Noah v. Ziehl, 759 S.W.2d 905 (1988).

But the same court earlier upheld a $20,000 award against the employer of a retail store security guard who squeezed a customer's breasts while searching her for stolen merchandise. “[T]he evidence was such that reasonable minds could in fact differ” over whether the guard was acting to benefit his employer's business, the court said in Clark v. Skaggs Companies, 724 S.W.2d 545 (1986).

The Chuck E. Cheese mascot's alleged misconduct seems closer to that of the security guard than the Shady Grove bouncer. But cases in which massage therapists molested clients suggest Thigpen acted outside the scope of his employment.

In Stern v. Ritz Carlton Chicago, 702 N.E.2d 194 (1998), for example, the Illinois Appellate Court  said a hotel was not liable for the conduct of a masseur who assaulted two guests during each of their massages.

“[I]t is not expected that a masseur will sexually assault a client during the course of a massage,” the court concluded. “Although a massage involves physical contact with the client, it cannot reasonably be said that sexual assault by masseurs at the Ritz was encompassed in their duties, was similar to those duties, or was reasonably foreseeable by the Ritz.”

Greeting Chuck E. Cheese patrons may involve physical contact, but CEC could certainly argue it was not reasonably foreseeable that its mascot would grope a patron's breast.

Earlier this week, Chuck E. Cheese settled a proposed $5 million class action in which an Asian-American patron alleged the manager of its Castleton, Ind., location called him a “rice picker” and “yellow man” when he tried to return a defective toy. According to the complaint, the manager had previously “offended other patrons [of] the restaurant and discriminated against Afro-Americans and elderly people.”

By Matthew Heller
5/2/09