Southeast Apartments Management, Inc. v. Jackman
513 S.E.2d 395, 257 Va. 256, 1999 Va. LEXIS 39 (1999)
Rule of Law:
An employer is not liable for negligent hiring or retention unless there is sufficient evidence that the employer knew or, in the exercise of reasonable care, should have known that an employee posed an unreasonable and foreseeable risk of the specific harm that occurred.
Facts:
- Kimberly M. Jackman was a tenant in the Kings Arms Apartments, owned by Southeast Mortgage and Investment Corporation and managed by Southeast Apartments Management, Inc.
- Southeast Apartments Management, Inc. employed Douglas Turner as 'maintenance supervisor' for approximately two months, providing him with a 'master key' that could open a percentage of the apartments.
- Turner submitted a detailed application, listed six personal references (only two of which were contacted and gave good recommendations), and indicated he had only committed 'Traffic Violations' in his behavioral history.
- Melanie L. Ayscue, the apartment 'resident manager,' performed a background check but did not request a copy of Turner's criminal record, stating she believed the 'law' did not require it.
- Near 5:00 a.m. on July 27, 1996, Turner entered Jackman's upstairs bedroom, sat on her bed, stated he had 'had quite a bit to drink,' and began rubbing her thigh before leaving upon her pleas.
- Prior to the incident, Ayscue told a detective she 'suspected that he either had an alcohol or drug abuse problem' based on Turner's morning appearance.
- Ayscue and the apartment assistant manager heard Turner talk about 'females in the apartment complex that he thought were attractive that he was interested in dating' and asked for phone numbers of single female residents.
- Other employees mentioned that 'during their lunch breaks they used to hide from him because he was so obnoxious,' as 'he tried to follow them everywhere they went.'
Procedural Posture:
- Kimberly M. Jackman filed an action for damages against Southeast Apartments Management, Inc. and Southeast Mortgage and Investment Corporation in the Circuit Court of the City of Virginia Beach.
- The trial court instructed the jury on the issues of negligent hiring, negligent retention, and proximate cause.
- The jury found in favor of Jackman, fixing her damages at $12,500.
- The trial court entered judgment on the verdict in a February 1998 order.
- Southeast Apartments Management, Inc. and Southeast Mortgage and Investment Corporation (appellants) were awarded an appeal to the Supreme Court of Virginia.
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Issue:
Does evidence indicating an apartment owner's employee had a suspicion of alcohol/drug problems, expressed attraction to female tenants, and was considered 'obnoxious' by co-workers, establish a prima facie case of negligent hiring or negligent retention against the owner for a pre-dawn sexual assault committed by that employee?
Opinions:
Majority - Justice A. Christian Compton
No, the tenant's evidence was wholly insufficient to make out a prima facie case of either negligent hiring or negligent retention. For negligent hiring, the Court held that during the hiring process, the owner received detailed information from Turner's application and references, none of which indicated a propensity to molest women. The Court emphasized that a failure to investigate Turner's prior criminal record was not a breach of reasonable care under these facts, as Turner denied criminal behavior, and any minor prior offenses (such as writing bad checks) would not have alerted the owner to a risk of sexual assault. Liability for negligent hiring is predicated on placing a person with known or discoverable propensities posing a foreseeable threat of injury (citing Ponticas v. K.M.S. Invs. and J. . . v. Victory Tabernacle Baptist Church). The Court found no facts that would have put the owner on notice that hiring Turner might reasonably lead to a pre-dawn assault on the tenant. For negligent retention, the Court found that during Turner's two-month tenure, the owner did not know, nor should it have known, in the exercise of reasonable care, that Turner was dangerous and likely to harm tenants. A 'suspicion' of an alcohol or drug problem, an attraction to single women, or being 'obnoxious' to co-workers, did not render Turner a 'dangerous employee' likely to commit sexual assaults. Liability for negligent retention arises if the employer knew or should have known an employee was dangerous and likely to harm tenants (citing Philip Morris Inc. v. Emerson and Mallory v. O'Neil). Consequently, the trial court erred in refusing to rule, as a matter of law, that the tenant failed to establish a prima facie case.
Analysis:
This case establishes a high evidentiary bar for negligent hiring and retention claims, particularly when the employee's prior conduct or known propensities do not clearly indicate a risk of the specific, severe harm that ultimately occurs. It clarifies that employers are generally not required to conduct criminal background checks in all circumstances, and that minor offenses or general 'obnoxiousness' are insufficient to establish foreseeability for criminal sexual activity. The ruling reinforces that the foreseeability of the specific harm is crucial, and mere general concerns about an employee's character or habits will not suffice to prove negligence.
