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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