13.6 CLAIMS ARISING FROM FAILURE TO INVESTIGATE
13.601 Negligent Hiring. 97
A. In General. An employer's failure to discover information about an applicant forms the basis for a claim of negligent hiring. An employer has a duty to hire competent employees and to refrain from hiring persons with known dangerous propensities who may present a foreseeable risk of harm to others. An employer may be held responsible for harm caused by an employee who has been negligently hired. 98 An employer is not necessarily liable for negligent hiring when it simply fails to investigate an applicant. An employer faces liability if an employee's propensity to injure others, in the circumstances of the employment, was known, or should have been discovered by a reasonable investigation. 99 Questions that arise in cases of possible negligent hiring include the following:
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| 1. | Was the worker who caused the injury unfit for the employment? | ||
| 2. | Did the employer know, or should the employer have known, of the employee's lack of fitness? | ||
| 3. | Did the employer owe a duty of care to the injured party? | ||
| 4. | Was the employer's negligence in hiring the unfit employee the proximate cause of the third party's injuries? |
Any pre-employment inquiry should include an employment application, a job interview, checking past employer references, confirming the possession of licenses that may be required for the position, and checking for criminal convictions. An employer will not be liable if it conducted a reasonable background investigation and there is no evidence that the employer knew or should have known of the employee's propensity for the type of behavior that caused the injured party's harm.
A federal district court in Virginia dismissed a claim of negligent hiring where an employee only suffered monetary damages and not physical damages. 100 The court reasoned that, although the Virginia Supreme Court has not decided whether financial injury alone can support a claim for negligent hiring, that court and the Fourth Circuit have noted that an "unreasonable risk of harm" requires the threat of "serious and significant physical injury." 101
B. Claims by Customers and Other Third Parties. In J. v. Victory Tabernacle Baptist Church, 102 the plaintiff alleged that a church employee had repeatedly raped and sexually assaulted her 10-year-old daughter. She alleged that the church knew, or should have known, when it
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hired this employee, that he had recently been convicted of aggravated sexual assault on a young girl, that he was on probation for the offense, and that a condition of his probation was that he not be involved with children. She alleged that, despite this, he had been hired and entrusted with duties that encouraged him to come freely into contact with children and that he came into contact with her daughter at church, which is where he raped her. The Virginia Supreme Court held that the plaintiff's allegations were sufficient to state a claim for negligent hiring. It noted that the tort of negligent hiring has long been recognized in Virginia.
In Davis v. Merrill, 103 a gatekeeper for the Norfolk and Western Railroad was asked to raise a gate so a car could pass. He grumbled, opened the gate, let the car pass, and then fired three shots at it. A passenger was killed. The Virginia Supreme Court upheld the jury's finding of negligent hiring, holding that there was ample evidence tending to prove that the gatekeeper was a person who would become highly incensed over a simple matter and who would get dangerously angry from slight provocation. He had previously been discharged by the railroad. Nevertheless, when he was rehired, no one inquired about his past record, habits, or general fitness for the position. The court ruled that hiring an improper person who would come in contact with the public as the railroad's agent was gross misconduct. 104
In D.R.R. v. English Enterprises, CATV, 105 a cable TV installation company was held liable for an employee's rape of an apartment occupant, because the company failed to inquire into the employee's background and gave the employee a master key to the apartment complex to which he returned after work to commit the rape.
In Heckenlaible v. Virginia Peninsula Regional Jail Authority, 106 a federal district court dismissed an inmate's claim of negligent hiring against a regional jail authority where there was no evidence that a reasonable...
