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The manager of an apartment complex used the key to one of the apartments to enter the tenant’s apartment during his off duty time and rape the occupant. ABC Apartment Company owns the property and hired the manager. An investigation after the fact turned up evidence the manager had a criminal record which ABC failed to discover during the interview process. The tenant is suing ABC Apartment Company for compensatory and punitive damages.
The following will discuss the possible legal theories upon which the tenant may seek recovery in a civil court of law and how likely the tenant may be to receive an award of compensatory and possibly punitive damages.The idea of vicarious liability has existed for centuries, predating even English common law in the 16th century. Vicarious liability was common in primitive law wherein “owners” were held responsible for the negligence of servants, slaves, inanimate objects and wives. Blumenreich, 1993).
To phrase it plainly, a person is responsible for the actions of those people with whom that person may have a master and servant relationship. The Restatement (Second) of Agency, (Restatement (Second) of Agency §§215-267 (1958)) outlines the doctrine of respondeat superior as it pertains to a principal and his or her agent, such as an employer and an employee. Under respondeat superior, a principal may be vicariously liable for torts committed by an agent of the principle.
The liability may arise when the agent’s act is committed within the scope of employment and in furtherance of the principal’s business, or when the agent’s act is ratified by the principal. (cited in Lindemann and Kadue, 1992) When applying the Restatement (Second) of Agency to the facts of the of the third party tenant’s rape at the hands of the apartment manager hired by ABC Apartments, it becomes clear why the doctrine of respondeat superior is doomed to fail in a civil court of law.
The apartment manager entered the premises and raped the victim in off hours. A reasonable person may conclude that entering the leased premises of a tenant and committing criminal acts against that tenant is not within the scope of employment for the manager and decidedly not in furtherance of the business of ABC Apartments. A reasonable person could also conclude ABC Apartments did not give the manager consent or instruction to unlawfully enter and physically assault the tenants of the apartments.
The act of raping the tenant was motivated completely by the apartment manager’s own personal desire. Unless the apartment manager had been specifically instructed by ABC Apartments to rape the tenant, no purpose to serve ABC Apartment’s interest existed. Finally, the manager was hired to oversee the operation of the apartment complex for ABC, not to physically assault and rape the tenants.
The theory of negligent hiring addresses employers who do not take reasonable care in hiring their potential employees for a job (FindLaw, 2004). In his legal treatise entitled Employment Screening, Rex K. Larson points out most states recognize a cause of action for negligent hiring, although, no real uniform elements have been adopted as of yet by the multiple state and federal courts. (cited in Creed. T. , 2007) However, a similarity in exactly how to define negligent hiring does exist.
In the case of Garcia v. Duffy, 492 So. 2nd 435 (1986), the Florida Supreme Court defined negligent hiring in the following manner: Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee’s unfitness, and the issue of liability focuses upon the adequacy of the employer’s pre-employment investigation into the employee’s background. (cited in Sinclair-Bernadino, 2006. ) In Pennsylvania, Coath v. Jones, 277 Pa. Super. 79, 419 A. 2d 1249 (1980), follows the Restatement (Second) of Torts stating: Negligent hiring cases focus on what duty is owed by the employer to a third party when an employee commits a crime or other bad act …the consensus is that an employer may be found negligent if he knew or should have known that an employee had a propensity for conduct that would harm a third person. ” (cited in LaPasta, 2006)
The Minnesota Supreme Court in Ponticas v. K. M. S. Invs. , 331 N. W. 2d 907, 911 (Minn. 983) offered an opinion which can be characterized as a majority test for the doctrine of negligent hiring: 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 been foreseeable that the hired individual posed a threat of injury to others. (cited in Creed, 2007)
The commonality of all the above-quoted opinions revolves around holding employers responsible for hiring employees who harm third parties when an adequate background check would have prevented such a person from being hired for the job in the first place. In the law review article, Note, Minnesota Developments: Employer Liability for the Criminal Acts of Employees Under Negligent Hiring Theory: Ponticas v. K. M. S. Investments, 68 Minn L. Rev. 1303, 1304-05 (1984), Cindy M. Haerle draws upon the Ponticas opinion of the Minnesota Supreme Court to identify six basic elements of negligent hiring :
(1) the tort-feasor was the employer of the defendant; (2) the employee was unfit for employment; (3) the employer knew or should have known the employee was unfit; (4) the plaintiff (claimant) was injured by the employee’s tortious act; (5) the employer owed a duty of care to the plaintiff; and (6) the hiring of the employee was the proximate cause of the plaintiff’s injuries. cited in Creed, 2007).
Assuming the courts of the state in which the tenant who became the rape victim of the manager utilize elements such as the above in determining an employer’s liability under a negligent hiring theory, it becomes clear ABC will be held liable for the acts of the manager. The manager was the employee of ABC at the time he committed the rape. The manager had a previous criminal record that ABC failed to discover during the hiring process.
Because a criminal background check would have revealed the manager’s past to ABC, they would or should have known the manager was unfit to perform a job in which access to all the tenants’ apartments was readily available. The tenant was clearly injured, both physically and mentally, by the tortious act of the manager. ABC clearly owes a duty to their tenants to insure their employees are fit for the jobs they are hired to do. Failure to investigate the manager’s background is a clear breach of that duty.
Finally, had ABC not hired the manager, access to the keys of the tenants’ apartments would not have been available to him and, of course, he would not have been able to enter the tenant’s apartment and commit the crime of rape. Now that is has been established the tenant will succeed under the theory of negligent hiring, the issue of damages must be addressed. Black’s Law Dictionary defines compensatory damages as “such as will compensate the injured party for the injury sustained. ” (Nolan, p. 390, 1990).
Black’s Law Dictionary defined punitive damages as damages awarded on an “increased scale……that of punishing the defendant or of setting an example for similar wrongdoers. ” (id). In the Florida case of Tallahassee Furniture v. Harrison, a company was successfully sued under the theory of negligent hiring and the plaintiff was awarded $1. 9 million in compensatory damages and $600,000. 00 in punitive damages. (Arvey, et al. , p. 1, 2001) A Massachusetts jury ordered the Trusted Health Resources and Visiting Nurses Association of Boston to pay $26. million in combined compensatory and punitive damages to the family of a murdered quadriplegic after the family successfully sued under the theory of negligent hiring. (Anderson, 1998).
A clear indication issues from these decisions indicating courts are willing to allow for the award of punitive damages on top of compensatory damages. Based upon this information, under the theory of negligent hiring it seems likely that the tenant will be successful in a civil lawsuit and will be able to recover both compensatory and punitive damages of a significant nature.
The nature of employment law is ever changing and the theory of negligent hiring seems to be an ever expanding area of the law. The idea of a third party recovering for the torts of an employee seems almost to be a return toward the primitive law mentioned in Mr. Blumenreich’s article wherein the master was responsible for all actions of his chattel, or persons in their charge. (Blumenreich,1993. )
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