Moricle v. Pilkington
462 S.E.2d 531, 120 N.C.App. 383, 10 I.E.R. Cas. (BNA) 1833 (1995)
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Rule of Law:
An employer is not liable for negligent hiring or retention for an employee's intentional tort unless the employer had actual or constructive notice of the employee's unfitness for the job. An employer is generally not required to conduct a criminal background check, and the duty of care may be satisfied by other reasonable measures like personal knowledge or reference checks.
Facts:
- In January 1992, Shirley A. Moricle hired Johnny’s Plumbing Repair Service to perform maintenance at her residence.
- The owner, Johnny R. Brooks, sent two employees, his nephew Charles B. Brooks and Raymond C. Pilkington, to the Moricle residence.
- Moricle informed Johnny's Plumbing that she would not be home while the work was being performed.
- While working unsupervised in the residence, Charles Brooks and Raymond Pilkington stole a fourteen-carat gold diamond tennis bracelet belonging to Moricle.
- Johnny Brooks had hired his nephew, Charles Brooks, without a criminal background check, having known him since birth. Charles Brooks had a prior conviction for assault and battery.
- Johnny Brooks hired Raymond Pilkington without a criminal background check but did interview him and call a former employer who gave a good reference. Pilkington had prior convictions for harassing telephone calls and possession of an unsealed container of alcohol.
- Johnny Brooks stated he had no knowledge of any wrongdoing or dishonest tendencies of either employee prior to the theft from Moricle's home.
Procedural Posture:
- Shirley A. Moricle (plaintiff) filed an action in a trial court against employees Raymond Pilkington and Charles Brooks, and their employer, Johnny’s Plumbing Repair Service (defendant).
- The claims against Johnny's Plumbing included negligent hiring, retention, and supervision.
- Johnny’s Plumbing Repair Service filed a motion for summary judgment, asking the court to dismiss the case against it.
- The trial court granted the motion for summary judgment, finding in favor of Johnny's Plumbing.
- Moricle (plaintiff-appellant) appealed the trial court's grant of summary judgment to the intermediate appellate court.
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Issue:
Does an employer breach the duty of care in hiring by failing to conduct a criminal background check on employees who subsequently commit theft, when the employees' prior convictions are unrelated to dishonesty and the employer has no other notice of their unfitness?
Opinions:
Majority - Johnson, Judge.
No, an employer does not breach the duty of care under these circumstances. To establish a claim for negligent hiring, the plaintiff must prove that the employer had either actual or constructive notice of the employee's unfitness. In this case, the evidence did not show that Johnny's Plumbing knew or reasonably could have known that either employee was dishonest. The employer's hiring practices—relying on lifelong personal knowledge of his nephew and conducting a reference check on the other employee—were reasonable. The court noted there is a presumption that an employer uses due care in hiring, and North Carolina law does not impose a duty to conduct a criminal background check. Furthermore, the employees' prior criminal records for offenses like assault and harassing phone calls were not indicative of a propensity for theft, meaning even a background check would not have put the employer on notice of the specific risk that materialized.
Analysis:
This decision reinforces the principle that an employer is not a guarantor of an employee's good conduct, particularly for unforeseeable criminal acts. It sets a high bar for plaintiffs in negligent hiring cases, requiring them to show that the employer had specific notice of an employee's unfitness for the particular job. The ruling clarifies that failing to conduct a formal criminal background check is not, by itself, negligence, especially when other reasonable hiring practices are followed. This precedent protects employers from liability for employee torts that are not reasonably foreseeable based on the employee's known history.
