A bank is not liable to its customer’s employee, who was fired for negligence with respect to the employer’s deposits, the Appellate Division recently held in Dennen v. TD Bank Gloucester, 2013 WL 865318 (2013).
Plaintiff Frederic Dennen sued TD Bank after being fired from his job supervising parking lot attendants at Wingaersheek Beach in Gloucester. A City of Gloucester employee, Dennen was responsible for collecting parking fees and depositing them into the City’s account with TD Bank. Dennen executed his job responsibilities in a haphazard fashion, failing to keep the cash in a secure location and often failing to count the money he deposited or recording incorrect amounts on the deposit slips. On busy days, when his supervisor collected cash in the middle of the day, Dennen didn’t bother to count the funds before handing them over and relied on the supervisor’s report of the amount. TD Bank tellers who processed the deposits reported that the money was often “crunched in” the deposit bag with sand and that the deposit slips often recorded the wrong amount or were simply missing.
Dennen acknowledged that counting the cash, maintaining it in a secure location and making deposits was his responsibility. When $1,750 went missing over a period of several weeks in June 2010 and Dennen could not explain the shortages, he was fired. Unwilling to take responsibility for his own poor job performance, Dennen sued TD Bank claiming it had been negligent, had interfered with his employment relationship with the City of Gloucester and had made negligent representations.
However, like his job performance, Dennen’s claim against TD Bank was deficient. The Court found that Dennen failed to produce evidence of any false information that the bank supplied and dismissed his negligent misrepresentation claim. Addressing the claim of intentional interference with an advantageous relationship, the Court pointed out that not only was there no evidence that TD Bank had interfered with Dennen’s relationship with his employer but there was no evidence that TD Bank even knew Dennen existed.
Perhaps most significantly, the Court pointed out that TD Bank had no duty to Dennen on which a claim of negligence could be based. Dennen was not a TD Bank customer and had no relationship to or interaction with the bank other than through the City of Gloucester, nor was there any other aspect of his position relative to the bank that imposed a duty to him. Even in the absence of a relationship from which a duty of care might ordinarily arise, courts have held that a “special relationship” might arise if a defendant could reasonably foresee that it would be expected to take affirmative action to protect a party and could anticipate that party would be harmed if it didn’t. Irwin v. Ware, 293 Mass. 745, 756 (1984). However, in this case, the Court held that Dennen had no such special relationship to TD Bank and, in the absence of any evidence of wrongdoing on the part of the bank, the Court dismissed Denner’s claims against it.
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