Interim Personnel of Central Virginia, Inc. v. Messer , 263 Va. 435 ( 2002 )

PRESENT: Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and
Poff and Compton, S.JJ.
INTERIM PERSONNEL OF
CENTRAL VIRGINIA, INC.
v. Record No. 010796
MILDRED LYNN MESSER, ET AL. OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
ALUMNI ASSOCIATION OF THE March 1, 2002
UNIVERSITY OF VIRGINIA
v. Record No. 010799
MILDRED LYNN MESSER
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
In these appeals arising from a single action alleging
negligent hiring, the dispositive question is whether the trial
court erred in ruling that foreseeability was a jury issue.
In November 1998, plaintiff Mildred Lynn Messer was injured
when the vehicle she was operating near Charlottesville was
struck from the rear. The collision was caused by defendant
Ricky Edward East, who was intoxicated and was negligently
operating a pickup truck that he had stolen from defendant
Alumni Association of the University of Virginia.
Subsequently, the plaintiff filed this tort action seeking
recovery for her injuries against East, the Association, and
Interim Personnel of Central Virginia, Inc. Interim was a
staffing agency that provided temporary personnel to businesses
needing light industrial, administrative, and clerical support
employees. The only theory of liability against the Association
and Interim presented to the jury was negligent hiring.
In a September 2000 trial, the jury found in favor of the
plaintiff against all defendants, fixing her compensatory
damages at $100,000, plus interest. The jury also awarded
punitive damages of $25,000 against East.
Overruling motions of the Association and Interim to set
the verdict aside, the trial court entered judgment on the
verdict. We awarded separate appeals to the Association and
Interim; the judgment against East has become final.
There are very few conflicts in the evidence. If there are
disputed facts, we shall consider them in the light most
favorable to the plaintiff, according to settled rules of
appellate procedure.
At the time of the accident, East was employed by Interim
and assigned to the Association to fill the position of "Part-
time Building Assistant" at the University's Alumni Hall.
According to a job description furnished to Interim by the
Association in March 1998, when the Association was seeking a
temporary worker, the duties of such an assistant included
helping the building supervisor about three hours a day with
mail processing and packaging "and delivery to the Post Office."
The job description stated that possession of "a valid Virginia
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driver's license" was required. At all times relevant to this
case, East did not have a valid operator's permit.
East had been convicted of driving under the influence of
intoxicants (DUI) in May 1990 and in October 1995. Due to those
convictions, his license to operate a motor vehicle was
suspended. Also, he failed to pay the fines assessed and failed
to attend ordered alcohol counseling. In January 1996, the
Department of Motor Vehicles (DMV) declared him to be an
habitual offender.
In December 1996, East began working for and through
Interim after he completed an Interim application form. On the
form, East misrepresented that he possessed a valid "Class A"
driver's license. At the time, East was interviewed and was
given "a series of basic skill tests." Then Interim "check[ed]
his references," and employed him, assigning him to various
employers.
After some time, East left Interim's employ. He returned
to work for the agency in September 1998, when he completed
another application form that sought current information.
Responding to the question on the nine-page form: "Have you
ever been convicted of a felony, misdemeanor or any offense
other than a minor traffic violation?", East wrote, "child
support!" Also, he listed among his work skills "Chauffer"
(sic) and "Driver Class A."
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During the relevant time period, Interim did not "check
criminal background," or request applicants physically to
produce a valid operator's license. Also, it "did not request a
copy of East's DMV record."
In March 1998, an official of the Association had contacted
Interim's Sales Manager to discuss filling the part-time
building assistant position, presenting the job description to
him. Later, in September 1998, the Association official asked
Interim to send an individual who met the job qualifications.
Interim's Sales Manager responded that East was qualified,
stating that East "had a good driving record." Interim had
found East to be a good employee; he had not been involved "in
any type of accidents," had never "shown up drunk on the job,"
and had generated no complaints "from any employer about his
activities while working."
On September 22, 1998, Interim sent East to be interviewed
by the Association official. Under the arrangement with
Interim, the Association had the right to accept or reject East.
During the interview, the official discussed with East the hours
to be worked and his duties, handing him a copy of the job
description. East said that he could perform the duties. The
official did not ask East to produce a driver's license, relying
on Interim to verify that he was a licensed driver. No one at
the Association asked East if he possessed a valid driver's
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license. East admitted he concealed from Interim and the
Association that he did not have an operator's license because
he wanted a job.
The Association accepted East as a worker. During the two
months before the accident, the Association found East to be "an
excellent employee." His work included use of a copying
machine, a mailing machine, and recycling equipment. His
driving duties involved only travel to and from a post office
"less than a mile" from the Association building.
On November 25, 1998, the Wednesday of Thanksgiving week,
East was told to keep a key to the Association building because
his supervisor was on vacation. He was instructed to lock the
building before the holiday and to reopen it the following
Saturday. The Association was closed for business on November
25 and November 26, the day of the accident.
Because he had access to the building, East was able to
procure a key to the truck he routinely operated. On Wednesday,
East, age 40, "took the truck" without permission, traveled to
Richmond, and returned to his Charlottesville home on Friday,
when he began drinking beer and "riding around" in the truck.
During the day, he consumed about eight quarts of beer, and
eventually drove the truck into the rear of a stopped vehicle
that struck the rear of the plaintiff's stopped vehicle.
Subsequently, East pled guilty to petit larceny of the truck.
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At trial, the court submitted the case against Interim and
the Association to the jury with instructions on negligence,
proximate cause, negligent hiring, foreseeability, and damages.
On appeal, the plaintiff, referring to the established elements
of the independent tort of negligent hiring, contends she
presented ample evidence to support "each element" against both
Interim and the Association.
As we recently have stated, the cause of action for
negligent hiring "is based on the principle that one who
conducts an activity through employees is subject to liability
for harm resulting from the employer's conduct if the employer
is negligent in the hiring of an improper person in work
involving an unreasonable risk of harm to others." Southeast
Apartments Mgmt. v. Jackman, 257 Va. 256, 260, 513 S.E.2d 395,
397 (1999).
Liability for negligent hiring is based upon an employer's
failure to exercise reasonable care in placing an individual
with known propensities, or propensities that should have been
discovered by reasonable investigation, in an employment
position in which, due to the circumstances of the employment,
it should have been foreseeable that the hired individual posed
a threat of injury to others. Id. Mere proof of the failure to
investigate a potential employee's background is not sufficient
to establish an employer's liability for negligent hiring.
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Majorana v. Crown Cent. Petroleum, 260 Va. 521, 531, 539 S.E.2d
426, 431 (2000).
The tort of negligent hiring is distinct from tort
liability predicated upon the doctrine of respondeat superior;
the two theories differ in focus. J... v. Victory Tabernacle
Baptist Church, 236 Va. 206, 211, 372 S.E.2d 391, 394 (1988).
Under the latter, an employer is vicariously liable for an
employee's acts committed within the scope of employment. In
contrast, the tort of negligent hiring is a doctrine of primary
liability; the employer is principally liable for placing an
unfit individual in an employment situation that involves an
unreasonable risk of harm to others. Negligent hiring enables a
plaintiff to recover in circumstances when respondeat superior's
"scope of employment" limitation protects employers from
liability. Id.
The plaintiff contends that East had a known propensity for
driving while intoxicated, or that this propensity should have
been discovered by Interim and the Association had they
performed reasonable investigation. She argues "there were
facts that should have put Interim on notice that sending East
to [the Association] might reasonably be a threat to the
public."
The plaintiff also contends that the Association's claim of
reliance on Interim "ignores the evidence of [the Association's]
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active negligence in giving East the job." She says the
Association "failed to conduct the most basic of investigations,
requiring . . . proof East met the job requirement."
Additionally, the plaintiff argues that Interim and the
Association "placed East in an employment position in which,
because of the circumstances of the employment, it should have
been reasonably foreseeable that East posed a threat of injury
to others." According to the plaintiff, it was foreseeable from
Interim's standpoint that the Association would hire East, that
he would drive for the Association, that he would have access to
a vehicle, that he would take the vehicle, that he would drink
and drive, and that he would injure someone while driving drunk.
The plaintiff also argues that from the Association's
standpoint "East was expected to drive a pickup truck as part of
his job. He posed a risk to the motoring public every time he
left Alumni Hall to go to the post office. He posed a special
risk to the public when he was left in control of Alumni Hall
over the Thanksgiving weekend; and, [the Association] knew it."
We do not agree with the plaintiff's contentions. The
evidence is clear that neither Interim nor the Association had
actual knowledge of East's propensities for operating a motor
vehicle without a valid operator's license, for failing to obey
court orders to pay fines and to attend counseling, and for
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driving while intoxicated. He intentionally concealed those
facts from them.
The question then becomes whether those defendants should
have discovered these propensities by reasonable investigation,
given the fact that the position to be filled only required a
three-hour daily commitment in which clerical and light labor
duties were to be performed, incidentally requiring driving only
a short distance to and from a post office. For the purpose of
this discussion, however, we will assume, but not decide, that
both Interim and the Association should have discovered East's
propensities in the exercise of reasonable care.
Nevertheless, we hold that the plaintiff failed, as a
matter of law, to establish that, because of the circumstances
of the employment, it should have been foreseeable that East
posed a threat of injury to others.
Generally, in order to warrant a finding that negligence is
the proximate cause of an injury, it must appear that the injury
was the natural and probable consequence of the negligent or
wrongful act, and that the injury should have been foreseen in
the light of the attending circumstances. Scott v. Simms, 188
Va. 808, 817, 51 S.E.2d 250, 253 (1949).
Negligence carries with it liability for consequences that,
in view of the circumstances, could reasonably have been
anticipated by a prudent person, but not for casualties which,
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though possible, were wholly improbable. A party is not charged
with foreseeing that which could not be expected to happen.
Norfolk Shipbuilding & Drydock Co. v. Scovel, 240 Va. 472, 475,
397 S.E.2d 884, 885 (1990), cert. denied, 499 U.S. 948 (1991).
However, the precise injury need not be foreseen by a defendant.
It is sufficient that an ordinary, prudent person ought, under
the circumstances, to have foreseen that an injury might
probably (not possibly) result from the negligent act. Blondel
v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345 (1991).
In the present case, the mere fact that East had been
convicted twice of DUI, had failed to pay fines or attend
counseling, and had been declared an habitual offender, would
not place a reasonable employer on notice or make it foreseeable
that East would steal a truck, operate the stolen vehicle during
non-business hours for his own frolic, and cause an accident on
the open highway distant from the environs of his job.
According to the uncontradicted evidence, East's employment
history showed he had been a model employee, never had consumed
alcohol at work or reported for work intoxicated, never had been
in any motor vehicle accidents, never had taken any item from
any employer without permission, and had no record of theft. In
sum, it was not Interim's placement of East, or his subsequent
acceptance for work at the Association, which was a proximate
cause of the plaintiff's injuries.
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Consequently, we conclude that the trial court erred in
ruling that foreseeability was a jury issue, and in refusing to
sustain Interim's and the Association's respective motions to
set the verdict aside. Thus, that portion of the January 16,
2001 order entering judgment in favor of the plaintiff against
Interim and the Association will be vacated, and final judgment
will be entered here in favor of those defendants.
Reversed and final judgment.
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