concurring in part and dissenting in part:
I respectfully dissent. While I agree with the result reached by the majority which affirms the district court’s grant of summary judgment on the respondeat superior claim, I am of opinion that the district court’s order granting summary judgment to Defender Services on Miss Blair’s claims of negligent hiring and negligent retention should be affirmed, as well.
The district court correctly found that, [gjiven that prevailing Virginia law does not obligate an employer who has asked about criminal history and been told that none exists and who has no reason to suspect a criminal record to investigate prior criminal record “in the exercise of reasonable care,” no reasonable trier of fact could hold Defender Services negligent for not making the far more detailed background search that might have brought a temporary restraining order to light.
(quoting Southeast Apartments Management, Inc. v. Jackman, 257 Va. 256, 261, 513 S.E.2d 395, 397 (1999)). District Court Slip op. at 7-8. Therefore, I would affirm all the findings of the district court.
The majority relies on “expert testimony proffered by Blair that a background check would have indicated the existence *631of a protective order resulting from a criminal complaint.” Maj. op. at 629. The expert testified in an affidavit that the emergency protective order “should have been discovered by a reasonable background investigation” and that “[h]ad Defender Services, Inc. performed a criminal background check, they would have discovered the Protective Order and Harris’ assignment to Virginia Tech would not have been approved.”
Miss Blair’s principal argument is that Defender Services failed to conduct a reasonable pre-employment investigation into Harris’ criminal background as the contract between Defender Services and Virginia Tech required, and because it did not, it is liable for negligent hiring. The contract between Defender Services and Virginia Tech cannot, however, give rise to a tort duty owed by Defender Services to Miss Blair. An unfulfilled contractual responsibility alone cannot automatically create tort liability. Richmond, Metropolitan Authority v. McDevitt Street Bovis, Inc., 256 Va. 553, 558, 507 S.E.2d 344, 347 (1998) (noting that “the duty tortiously or negligently breached must be a common law duty, not one existing between the parties solely by virtue of a contract” (emphasis added)).
The majority concludes that a genuine issue of material fact exists as to whether Defender Services should have known of Harris’ propensities because it did not perform a criminal background check. Maj. op. at 629. Virginia law, however, does not obligate an employer who has asked about criminal history and been told that none exists, and who has no reason to suspect a criminal record, to investigate a prior criminal record “in the exercise of reasonable care.” Southeast Apartments, 257 Va. at 261, 513 S.E.2d at 397. Moreover, “proof of the failure to investigate a potential employee’s background is not sufficient to establish the employer’s liability. Rather, the plaintiff must show that an employee’s propensity to cause injury to others was either known or should have been discovered by reasonable investigation.” Majorana v. Crown Central Petroleum Corp., 260 Va. 521, 531, 539 S.E.2d 426, 431 (2000).
Even further, and persuasive, Virginia statutory law states that “[t]he issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.” Va.Code § 16.1-253.4(G). Also, “[a]n emergency protective order issued pursuant to this section shall expire seventy-two hours after issuance.” It may be extended until 5:00 p.m. the next business day the court is in session, which was done here until April 10, 2000 at 5:00 p.m. Va.Code § 16.1-253.4(0).
The emergency protective order was issued in the interim period between Harris’ first and second employment with Defender Services. Harris’ application for employment is dated October 4, 2000, and the application for the protective order is dated April 2, 2000, as is the protective order. Even if the protective order has something to do with the case, which is forbidden by Va.Code § 16.1-254(G), it had expired on April 10, 2000, almost six months prior to the time the application for employment was made. Defender Services had no reason to suspect, based on its initial investigation and employment of Harris and his employment with Virginia Tech, which had received a negative criminal background check, that Harris was capable of any violence. Further, there was no evidence presented that an emergency protective order would have been discovered in a criminal background check. Majorana, 260 Va. at 532, 539 S.E.2d at 432. In fact, the check run by the investigating officer after the attack on Miss Blair in March 2001 showed no convictions. To discover *632an emergency protective order in a potential employee’s history, an additional investigation must be executed. This additional inquiry, when a criminal background check shows no convictions, would require an investigation that goes beyond “the exercise of reasonable care.” Southeast Apartments, 257 Va. at 261, 513 S.E.2d at 397.
Therefore, even if Defender Services had taken the extra step to examine the records of the court not of record in Harris’ county of residence to discover the existence of an emergency protective order, under Virginia law it could not use that information as evidence of any wrongdoing on Harris’ part. Holding Defender Services negligent for not making the far more detailed background search that might have brought an emergency protective order to light would be unreasonable and would impose an undue burden on an employer’s hiring practice.
The upshot of the majority decision is that we are engrafting on Virginia law a requirement that in each case of employment a prospective employer must search for even unsuccessful misdemeanor prosecutions in the records of the courts not of record of the county of residence of the applicant, here Giles County, although not the same as the place of employment, here Montgomery County. In default of such a search we hold the employer may be found negligent. In my opinion this is an unreasonable burden to place on employers. Far worse is the disqualification from employment placed on youth by our decision.
I am thus of opinion that the judgment of the district court should be affirmed.