Southeast Apartments Management, Inc. v. Jackman

Present: All the Justices

SOUTHEAST APARTMENTS MANAGEMENT,
INC., ET AL.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 981000 February 26, 1999

KIMBERLY M. JACKMAN

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge

In this tort action, we consider whether the trial court

erred in ruling that a jury question was presented on a tenant's

claims that an owner of leased premises breached either its duty

to exercise reasonable care in the hiring of its employee, the

tortfeasor, or its duty to exercise reasonable care in the

retention of the employee.

On July 27, 1996, appellee Kimberly M. Jackman was a tenant

in the Kings Arms Apartments in Virginia Beach, owned by

appellant Southeast Mortgage and Investment Corporation and

managed by appellant Southeast Apartments Management, Inc.

(collectively, the owner). At the time, the owner employed one

Douglas Turner as the Apartments' "maintenance supervisor;" he

had been so employed for approximately two months.

Near 5:00 a.m. on July 27, the tenant was asleep in her

upstairs bedroom holding her infant son. The only other

occupant of the apartment was an older son, two years of age.

She awoke and saw a man standing in the hallway. Identifying
himself as "the maintenance man," Turner "came over," sat next

to the tenant on her bed, said "he had had quite a bit to

drink," and started rubbing her thigh. He arose in response to

her pleas for him to leave, "walked down the stairs," and left

the premises. "Scared," the tenant fled with her children to

her parents' home and called the police.

Subsequently, the tenant filed the present action for

damages, charging the owner with "negligent hiring and

retention" of Turner. During the trial, the court instructed

the jury on those issues and on proximate cause. The jury found

in favor of the tenant, fixing her damages at $12,500. The

trial court entered judgment on the verdict in a February 1998

order, from which we awarded the owner this appeal.

The owner contends the trial court erred, first, in failing

to rule, as a matter of law, that the tenant's evidence was

insufficient to create a prima facie case of either negligent

hiring or negligent retention, and, second, in failing to rule

that any such negligence was not a proximate cause of the

tortious act. Because of the view we take of the case, we do

not reach the question of proximate cause.

Applying settled principles of appellate review, we shall

summarize the evidence in the light most favorable to the

tenant, who comes to this Court armed with a jury's verdict

confirmed by the trial judge.

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 First, we shall relate the facts on the hiring aspect of

this case. Turner was among several applicants for the

advertised job of "maintenance supervisor" for the 199-unit

apartment complex. The duties of the position included assuring

the proper functioning of the apartment utilities, "keep[ing] up

the grounds," and being "on call 24 hours a day."

Turner, 31 years of age, had submitted a detailed

application, including a "very professionally printed" personal

resume. He was interviewed by Melanie L. Ayscue, the apartment

"resident manager," and by the owner's "regional manager."

As part of the application process, Turner executed a

release authorizing inquiry into his work, credit, and

educational history, as may be disclosed through his personal

references and public records. Ayscue attempted to talk with

six persons Turner had listed as personal references and was

able to speak with only two of them. They gave Turner good

recommendations.

Ayscue performed a "background check" on Turner, but did

not request a copy of his "criminal record." She testified that

the "law" did not require her "to do a criminal background

check." In the "Behavioral History" portion of the application,

Turner indicated that of the 34 crimes listed, he had committed

only "Traffic Violations." Ayscue administered a behavioral

test to him, graded by a third party, and he scored "fine."

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 Upon completion of the application process, Ayscue employed

Turner with the regional manager's approval. After he was

hired, Turner lived in one of the apartments and was furnished a

"master key" that could open a "percentage of the apartments."

Next, we shall relate the facts on the retention aspect of

the case. Ayscue told the detective who investigated the

assault on the tenant that Ayscue, based on the "appearance"

Turner had when "he came to work mornings, . . . suspected that

he either had an alcohol or drug abuse problem," and that Ayscue

"had heard him talking to the assistant property manager about

the females in the apartment complex that he thought were

attractive that he was interested in dating." Ayscue testified

Turner came to the apartment office one Saturday before the

incident and stated to her "he had one beer at a party." Ayscue

said she would not allow Turner to leave the office that

afternoon to answer any maintenance "calls."

The tenant testified that, after the incident, Ayscue and

the apartment assistant manager remarked "about how [Turner] had

mentioned getting phone numbers of single women that had lived

in the apartment." Ayscue testified that Turner asked her for

the telephone number of a resident named "Virginia," which

Ayscue assumed was in connection with a request for maintenance.

The assistant manager testified that Turner asked for the

telephone number of a "Ginger," a single woman who resided in

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the apartment, and that "an older lady who had a Cocker Spaniel"

had "invited him out."

The tenant also stated that Ayscue "had mentioned to me how

during their lunch breaks they used to hide from him because he

was so obnoxious, he tried to follow them everywhere they went.

So they would sneak out for lunch so he wouldn't go with them."

This Court has recognized the independent tort of negligent

hiring. J. . . v. Victory Tabernacle Baptist Church, 236 Va.

206, 208-09, 372 S.E.2d 391, 393 (1988); Davis v. Merrill, 133

Va. 69, 78-81, 112 S.E. 628, 631-32 (1922). The cause of action

is based on the principle that one who conducts an activity

through employees is subject to liability for harm resulting

from the employer's conduct if the employer is negligent in the

hiring of an improper person in work involving an unreasonable

risk of harm to others. Ponticas v. K.M.S. Invs., 331 N.W.2d

907, 911 (Minn. 1983). Accord, Victory Tabernacle Baptist

Church, 236 Va. at 211, 372 S.E.2d at 394. See John H. Derrick,

Annotation, Landlord's Tort Liability to Tenant for Personal

Injury or Property Damage Resulting from Criminal Conduct of

Employee, 38 A.L.R.4th 240 (1985). "Liability is predicated on

the negligence of an employer in placing a person with known

propensities, or propensities which should have been discovered

by reasonable investigation, in an employment position in which,

because of the circumstances of the employment, it should have

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been foreseeable that the hired individual posed a threat of

injury to others." Ponticas, 331 N.W.2d at 911.

This Court also has recognized the independent tort of

negligent retention. Philip Morris Inc. v. Emerson, 235 Va.

380, 401, 368 S.E.2d 268, 279 (1988); Norfolk Protestant Hosp.

v. Plunkett, 162 Va. 151, 156, 173 S.E. 363, 365 (1934). As

applicable to the facts of the present case, this cause of

action is based on the principle that an employer owning leased

premises is subject to liability for harm resulting from the

employer's negligence in retaining a dangerous employee who the

employer knew or should have known was dangerous and likely to

harm tenants. Mallory v. O'Neil, 69 So.2d 313, 315 (Fla. 1954).

See Svacek v. Shelley, 359 P.2d 127, 131 (Alaska 1961).

Applying the foregoing principles to the facts of this

case, we hold the tenant's evidence is wholly insufficient to

make out a prima facie case of either negligent hiring or

negligent retention.

During the hiring process, the owner received a detailed

application containing information about Turner's personal

background, work experience, and behavioral history. None of

this information gave a hint that Turner may have had a

propensity to molest women. Ayscue discussed Turner's

qualifications with two persons who formerly supervised his

work; they recommended him for employment and furnished no

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information that Turner may have posed a threat of committing

assaults upon female tenants.

In connection with her "background check," Ayscue did not

investigate Turner's prior criminal record, if any; under these

facts, she was not obligated to do so in the exercise of

reasonable care. In the application, Turner represented that he

had "absolutely never engaged" in 34 types of criminal behavior,

except traffic violations. Additionally, in the application he

also denied conviction "in the past seven years" of 28 listed

felonies.

The tenant dwells on a part of the opening statement of the

owner's attorney. He said that a "criminal records check" would

have disclosed Turner "wrote a bad check for $l.29" and another

"for $9" in Georgia when he was 20 years of age. Even if this

can be considered part of the evidence in the case, which it

cannot, it is the only indication in the entire record that

Turner had been convicted of non-traffic offenses. Even if the

owner had learned of these petty offenses, it would not have

been alerted to the fact that Turner would engage in criminal

sexual activity.

In sum, there are no facts that would have put the owner on

notice that its hiring of Turner might reasonably lead to a pre-

dawn assault on the tenant.

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 While retaining Turner during his two-month tenure before

the incident in question, the owner did not know, nor should it

have known, in the exercise of reasonable care, that Turner was

dangerous and likely to harm tenants. The fact there was a

"suspicion" Turner may have had an alcohol or drug "problem,"

and may have had an attraction for single women, did not render

this 31-year-old single man a dangerous employee and one likely

to commit sexual assaults. Nor does the fact that an employee

is "obnoxious," in the opinion of other employees, furnish

notice to an owner exercising reasonable care that the employee

is likely to sexually assault tenants.

Consequently, we are of opinion that the trial court erred

in refusing to rule, as a matter of law, that the tenant failed

to establish a prima facie case of negligent hiring or

retention. Therefore, we will reverse the judgment below, set

aside the verdict in favor of the tenant, and enter final

judgment here in favor of the owner.

Reversed and final judgment.

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