dissenting.
While I agree fully with the majority that Hines v. Bell, 104 Ga. App. 76 (3c) (120 SE2d 892) (1961), must be overruled, I cannot agree with the majority’s reversal of the trial court’s denial of summary judgment to appellant on the ground that negligent hiring is not applicable in the case at bar.
The majority limits the application of a claim for negligent hiring to situations in which the tortious act occurred during the tortfeasor’s working hours or while the employee was acting under color of employment.
The timing of a tort is not as important in a negligent hiring case as it is in a case relying upon the theory of respondeat superior, where the employer’s liability is predicated upon the fact that the employee was acting within the scope of employment when the tortious act was committed. Where an employer/employee relationship exists but the tortious act occurs while the employee is acting outside the scope of his employment, the employer may be liable for negligent hiring if by dint of the hiring the employee/tortfeasor was placed in a position to harm others. The basis for the employer’s liability is the placement of the tortfeasor in a position to do the harm that caused the third party’s injury, not when the tort occurred.
I believe that an employer ordinarily has no duty to inquire into the background of a potential employee; however, when matters are brought to the employer’s attention which should cause it to make inquiry, or when the employee’s position is one which as a direct consequence of the hiring places the employee in circumstances which pose a potential for the infliction of harm upon others, then it is incumbent upon the employer to ask the potential employee about the employee’s background insofar as the employee’s suitability for the particular duties is involved. Except in plain and palpable instances, *30it is for a jury to determine whether the employee’s position is one to which the duty of inquiry attaches and, if so, whether the extent of the employer’s inquiry was sufficient.
Decided July 16, 1987 Rehearing denied July 31, 1987 R. Chris Irwin, for appellant. David E. Tuszynski, Arnold Wright, Jr., Marvin A. Devlin, for appellee.In the case at bar, appellant hired the tortfeasor, Fugate, to fill a position that, upon the completion of a two to three-week orientation period, called for a “great deal” of traveling by automobile throughout his assigned territory, Alabama, Georgia, and North and South Carolina. Appellant admitted that prior to hiring Fugate it did not ask him about his past driving record but did ascertain that Fugate had a valid driver’s license. During pre-trial discovery, Fugate divulged that prior to his employment with appellant he had been convicted of driving under the influence and, in a separate incident, had been involved in a one-car collision.
Inasmuch as appellant, in the selection of an employee who as a direct consequence of his hiring would routinely be driving an automobile, “may have been duty bound to exercise a greater amount of care to ascertain its employee [was a good driver]” (C. K. Security Systems v. Hartford &c. Indem. Co., 137 Ga. App. 159, 161 (223 SE2d 453) (1976)), I believe the trial court was correct in denying appellant’s motion for summary judgment on appellee’s negligent hiring claim. When appellant hired Fugate, it knew his job would entail a great amount of driving and, in point of fact, provided him with an automobile. It is up to the jury to determine whether appellant’s ascertainment that Fugate had a valid driver’s license sufficiently fulfilled its duty to exercise ordinary care.
The majority’s fear that the denial of summary judgment to appellant in this case would expand the potential for negligent hiring liability to employers whose employees drive to work is not well founded. It is only an employer whose employee, as a direct consequence of the hiring, is placed in a position in which there exists the potential for the infliction of harm upon others that need beware. That does not include an employer whose employees drive their personal vehicles to work, because the mode of transportation they have chosen is not related to the position for which they were hired.
I am authorized to state that Judge Pope joins in this dissent.