specially concurring:
Today, the majority holds that Molalla Transport System, Inc. (Molalla) had no duty to investigate the criminal record of an applicant for employment before hiring him as a long-haul truck driver. I specially concur in order to emphasize what I believe to be the narrow scope of the majority opinion. As the majority correctly recognizes, the determination of duty requires a sensitive case-by-case analysis. Maj. op. at 1320. Under the facts of this case, the majority finds it inappropriate to recognize a duty. Maj. op. at 1318. While the majority addresses some potential implications of its decision today, the opinion necessarily is based upon the facts of this case. The majority’s conclusion does not foreclose the possibility of recognizing an employer’s duty to investigate the criminal records of potential employees in other circumstances.
A brief review of some pertinent facts should illustrate the limited scope of our decision. Molalla employed Terry Lee Taylor as a long-haul driver for its trucking business. His primary duties centered on transporting cargo on interstate highways. According to Molalla policies, long-haul drivers could make only infrequent stops for servicing the vehicle, obtaining food, and sleeping. Drivers were to sleep only in the compartments located behind the driver’s seat. Thus, Taylor’s employment simply placed him in contact with members of the general public. The victim of Taylor’s sexual assault, Grace Connes, worked in a hotel lobby, an area of widespread access.
In considering the appropriateness of recognizing a duty, a court must perform a careful weighing of these facts. The sensitive question of whether a defendant owes a plaintiff a duty to act to avoid injury is a threshold question of law to be determined by the court. E.g., Casebolt v. Cowan, 829 P.2d 352, 356 (Colo.1992); Smith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo.1986). “A court’s conclusion that a duty does or does not exist is ‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.’ ” University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987) (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 53, at 358 (5th ed. 1984)). In determining whether a duty should be recognized, a court must consider many factors, “including, for example, the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor.” Smith, 726 P.2d at 1127; accord, e.g., The Observatory Corp. v. Daly, 780 P.2d 462, 466 (Colo.1989).
Applying the foregoing factors to the hiring of employees, the risk involved, and the foreseeability and likelihood of injury will vary depending upon the nature of the employment duties and the extent of special access to vulnerable persons or valuable property. Evidence of the ease or difficulty of obtaining criminal records can have relevance to the magnitude of the burden of guarding against harm and the consequences of placing the burden upon the employer. In short, individualized assessment of the circumstances of particular employment is essential in determining the existence and scope of a duty to investigate the criminal records of prospective employees.
We may take instruction from the approach of other jurisdictions in analyzing the extent of an employer’s duty to third persons injured by the acts of unsuitable employees. In recognizing a potential duty, other jurisdictions focus on a special relationship between the employer and the injured party or center on a factual scenario where the employer sent the employee to the injured party’s residence. E.g., D.R.R. v. English Enterprises, CATV, 356 N.W.2d 580, 584 (Iowa App.1984) (in case arising from rape of apartment owner by cable TV installer, if installer’s employer furnished master key to installer, a special duty to apartment owner arose and could have been breached by hiring installer without checking his criminal record); Bennett v. T & F Distributing Co., 117 N.J.Super. 439, 285 A.2d 59, 62 (App.Div.1971) (in negligence action brought by victim assaulted in *1325her home by door-to-door vacuum cleaner salesman, issue of whether vacuum cleaner distributor had a duty to investigate salesman’s background, including criminal record, involves important conflicting interests and should be resolved after trial rather than on summary judgment); see Malorney v. B & L Motor Freight, Inc., 146 Ill.App.3d 265, 100 Ill.Dec. 21, 23-24, 496 N.E.2d 1086, 1088-89 (1986) (failure of trucking company to investigate prior criminal record of employee who denied a criminal history on application- and proceeded to rape a hitchhiker presented a negligence question for jury’s determination); Estate of Arrington v. Fields, 578 S.W.2d 173, 179 (Texas Civ.App.1979) (evidence of criminal record of employee admissible in jury trial of action against security guard service based on negligent hiring; evidence was relevant to issue of reasonable care in hiring); cf. Haddock v. City of New York, 140 A.D.2d 91, 532 N.Y.S.2d 379, 382 (1988), affd, 75 N.Y.2d 478, 554 N.Y.S.2d 439, 553 N.E.2d 987 (1990) (finding that “employer must conduct a reasonable inquiry in evaluating an employee’s past criminal record and may not negligently assign a former convict with a violent history to an unsupervised sensitive position where there is a foreseeable danger to others” in case where park employee with history of rape convictions assaulted a young girl); J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 372 S.E.2d 391, 392 (1988) (in negligent hiring action arising out of sexual assault against ten-year-old girl by church employee, allegation that church knew or should have known of employee’s prior conviction for sexual assault adequate to prevent dismissal on demurrer). In these cases, the employment relationship is instrumental to the employee’s ability to reach the victim.
Notably, in the present case no special relationship existed between the employer and the injured party. In reference to Mo-lalla, Connes was a member of the general public. In addition, she was working in an area of widespread access. Taylor’s occupation as a long-haul driver did not provide him with particular access to her. Thus, the situation does not present the question of an employer’s duty where the employer maintains a special relationship with the victim, or the employment relationship is instrumental to the employee’s ability to reach the victim.
We may take guidance from the factors articulated by the Rhode Island Supreme Court in considering the extent of an employer’s investigatory duty in a negligent hiring case. In examining an employer’s decision to hire a security guard, the court observed:
The sensitive nature of the employment, coupled with the opportunity and temptations incident to it, would lead to the conclusion that a prudent employer in these circumstances should rely on more than the absence of specific evidence or statements that a potential employee is dishonest or criminally inclined.
Welsh Mfg., Div. of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436, 441 (R.I.1984). As the majority acknowledges, in appropriate circumstances an employer may have a duty to investigate the criminal records of a potential employee. Maj. op. at 1322. The majority concludes that where circumstances give the employer reason to believe that the job applicant, by reason of some attribute of character or prior conduct, would constitute an undue risk of harm to members of the public, an investigative duty may arise. Id. I write to emphasize that the appropriate circumstances for the recognition of a duty may encompass additional situations. For example, where the employment relationship provides an employee with special access to vulnerable individuals, the factors relevant to the recognition of duty might dictate a result different from that reached in the present ease. Notably, public policy may well favor such a duty. By law, child care centers must conduct criminal background checks of their employees. 12 C.C.R. § 7.701.36 (1989). This reflects a recognition of the sensitive nature of child care and the vulnerability of the children involved.1
*1326While it is true that a criminal who pays his debt to society may deserve a second chance, we must not forget the employer’s ability to protect innocent third parties from foreseeable harm. In Bennett, the court recognized the important policy considerations contending in these cases. On the one hand, the innocent victim lacks the ability to control the employee while the employer possesses the power of selection. 285 A.2d at 62. On the other hand, there are countervailing policies favoring the employment of rehabilitated ex-convicts. Because the duty recognition issue is so fact-dependent, a full development of the relevant facts is necessary in order to determine whether an employer has a duty to investigate the criminal record of an applicant for employment. See id.
For the foregoing reasons, I specially concur.
. In addition, the regulatory scheme suggests the feasibility of conducting a criminal background investigation.