Security & the Law: Better Check the Background
The defendant security alarm company in the case employed door-to-door “promotional representatives” to make house calls to sell residential alarm systems. Approximately two months after initial contact during a house call selling the alarm systems, an employee of the defendant alarm company returned, broke into the victim’s home and committed rape.
The guardian of the victim filed the action against the alarm company and others for personal injuries and damages resulting from the negligent hiring, claiming, among other things, that the alarm company owed and breached a duty of care by failing to perform a criminal background check on its employee.
The trial court entered summary judgment in favor of each of the defendants, dismissing the lawsuit. The guardian of the victim appealed.
The basis of the plaintiff’s appeal was that: 1) the company owed a duty of care to prevent its employees from endangering customers, 2) the security company breached its duty of care by failing to conduct a background check when it hired the employee, and 3) the company proximately caused the minor’s injuries as a result of the breach.
When reviewing the case, the court pointed out that the alarm company represented and warranted that it conducted background/criminal checks and drug screens on all of its employees. However, in the course of the discovery proceedings of the case, the alarm company indicated that although it required all of its prospective employees to fill out a criminal history section on its “Authorization and Release” form, because of its high turnover rate, it was costly and impractical to perform background checks on every applicant. Therefore, the alarm company did not conduct a criminal background check before or after hiring the employee.
Although the employee in question completed all of the company’s application materials and checked the box “No” for each of the three questions about his criminal history, he did have a criminal record at the time he was hired by the alarm company.
Later, the general manager of the alarm company testified that he would not have hired the employee had he known about his criminal record. Still, the court pointed out that to prove negligent hiring, the plaintiff must demonstrate that, 1) the employer knew or, in the exercise of ordinary care, should have known of the employee’s unfitness at the time of hiring; and 2) the negligently hired employee proximately caused the plaintiff’s injury.
With respect to foreseeability, the court pointed out that when an employee is acting outside the scope of employment, the relationship between the employer and the employee gives rise to a limited duty, owed by the employer to foreseeable victims, “to prevent the tasks, premises or instrumentalities entrusted to an employee from endangering others.”
The court also pointed out that the company hired the employee to work with people, to go door to door to customers’ homes and to make sales calls at their private residences. Although the purpose of the employee’s role was to sell services to adult customers, working in a door-to-door setting necessarily put him into contact with children and anyone else who happened to be present in the home. Accordingly, a genuine issue of material fact remained as to whether the company owed a limited duty to the minor to prevent the tasks, premises or instrumentalities entrusted to the employee from endangering the minor. Whether or not the company’s failure to conduct a criminal background check proximately caused the minor’s injuries, was still in fact a question for a jury.
Therefore the court reversed the trial court’s summary judgment, which dismissed the plaintiff’s negligent hiring action against the company, and instead remanded the case for trial on factual issues of whether the company’s breach of its duty to conduct a criminal background check on the employee before hiring him proximately caused the minor’s actionable injuries and 2) if so, for damages. Regardless of the final outcome, this decision should act as a wake up call for every security-related company to make sure to complete a background check on every relevant employee.