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In a recent case in the State of Georgia, a kidnap victim brought a negligent hiring action against a security company and its authorized dealer after she was kidnapped by the dealer’s salesman. The trial court ruled against the plaintiff kidnap victim and granted summary judgment to the security company.
The victim appealed. The victim was kidnapped at gunpoint by a convicted violent felon who had once worked for the alarm company as a “promotions representative” selling home security systems door to door. The alarm company did not perform a background check before hiring the sales person, which would have revealed that he had been convicted of burglary and kidnapping in another state in 1979, sentenced to life in prison, and paroled in 1995. On appeal, the Appellate Court reversed the decision of the trial court.
The president of the defendant security company at deposition testified no background checks were performed on promotions representatives because they were considered independent contractors and not employees.
The general sales manager of the company testified that members of the promotions team were not authorized to enter a prospective buyer’s home absent a background check; they were advised that background checks were not required unless the worker was entering a home.
The plaintiff, in her deposition, said she wrote her name, address and telephone number on a form which inquired whether she was interested in having someone contact her about installing a security alarm system. The representative called on the plaintiff on two or three separate occasions. The plaintiff declined to allow the representative into her home. Subsequently, the representative came to the plaintiff’s home, where the kidnap occurred.
The issue before the court was whether the alarm company owed a duty to the plaintiff and whether the alarm company breached the duty. The Appeals Court said a jury must decide these questions of fact. The court said the jury must decide whether the defendant has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others, where it is reasonably foreseeable from the employee’s “tendencies” or propensities that the employee could cause the type of harm sustained by the plaintiff.
The court further pointed out that the act was not committed within working hours. Therefore, there was an issue as to whether or not the abduction was committed “under the color of employment” â€” and that also should be determined by the jury, said the court. Therefore, the matter was reversed and remanded to trial.
The bottom line is that companies are advised to obtain a background check on each agent hired to represent the company, whether mandated or not.