Keen v. Miller Environmental Group, Inc.

Case: 12-60220 Document: 00512079069 Page: 1 Date Filed: 12/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2012
No. 12-60220
Lyle W. Cayce
Clerk
DEBORAH KEEN,
Plaintiff-Appellant,
v.
MILLER ENVIRONMENTAL GROUP, INC.;
AEROTEK, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi, Southern Division
Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
CARL E. STEWART, Chief Judge:
Plaintiff-Appellant, Deborah Keen appeals the district court’s grant of
summary judgment in favor of Defendants-Appellees, Miller Environmental
Group (“Miller”) and Aerotek on her negligent hiring claim under Mississippi
law. For the reasons provided below, we AFFIRM.
I. FACTS AND PROCEEDINGS
On April 20, 2010, the Deepwater Horizon drilling rig exploded in the Gulf
of Mexico (“Gulf”). The explosion caused, among other things, a 152-day leak of
at least 93.5 million gallons of crude oil from the Macondo well into the Gulf.
As a result of the explosion, numerous sites along the Gulf Coast required
emergency cleanup efforts. One of those cleanup sites was in Pascagoula,
Mississippi. Miller, a New Jersey corporation, was a contractor at the
Case: 12-60220 Document: 00512079069 Page: 2 Date Filed: 12/10/2012
No. 12-60220
Pascagoula cleanup site. Miller subcontracted out its staffing to Aerotek, a
Virginia corporation.
On May 17, 2010, Rundy Robertson applied to Aerotek to be a technician
at the Pascagoula cleanup site. The role of a technician was to serve as a
general laborer, manually removing tar balls from the coast. Robertson had a
lengthy criminal history, including convictions for (i) cruelty to a child in the
first degree; (ii) robbery; and (iii) contributing to the delinquency of a minor. The
third conviction had required Robertson to register as a sex offender, which he
failed to do. Additionally, Robertson had previous charges for (i) simple battery;
(ii) sexual battery; (iii) forcible rape; and (iv) attempted first degree murder. As
part of his application, Robertson submitted a signed consent for Aerotek to
conduct a background check. However, he stated in his application that he had
no criminal history. Aerotek hired Robertson without conducting the
background check. It assigned him to the Miller contract in Pascagoula.
Like Robertson, Keen joined Aerotek as a technician. Aerotek also
assigned her to the Miller contract in Pascagoula.
On June 20, 2010, Keen fell ill during the workday. Robertson, by chance,
was scheduled to work only a half-day that day. He offered to drive her home
after they both had clocked out of work. Upon arriving at her home, Keen
alleges that Robertson forcibly raped her. A grand jury declined to indict
Robertson for the alleged crime.
Keen filed suit against Miller and Aerotek, in Mississippi state court, for
negligent hiring, retention, training, and entrustment. Miller and Aerotek
subsequently removed the case to federal court.
Ultimately, Keen dropped her negligent training and entrustment claims.
Miller and Aerotek moved separately for summary judgment on the remaining
negligent hiring and retention claims. The district court granted the two
2
Case: 12-60220 Document: 00512079069 Page: 3 Date Filed: 12/10/2012
No. 12-60220
motions on January 16, 2012, and entered final judgment against Keen on
February 27, 2012.
On appeal, Keen pursues only her negligent hiring claims. First, Keen
argues that Mississippi law imposes a duty on employers to conduct criminal
background checks, at least within the factual circumstances of this case.
Second, Keen argues that Miller and Aerotek breached self-imposed duties by
failing to comply with purported internal policies that required them to conduct
background checks on all new hires. Finally, Keen relies on the report of a
human resources expert and on the testimony of a corporate representative for
Miller, both of which she had offered to the district court as evidence of industry
practice pertaining to background checks. Keen argues that this evidence
created a genuine issue of material fact as to whether Miller and Aerotek
negligently breached a duty of care owed to her by hiring Robertson without
conducting a background check.
After careful review of Keen’s claims, we conclude that Mississippi law
simply does not support her first two arguments. Furthermore, Keen offers
virtually no authority for the proposition that Miller and Aerotek had a duty to
conduct criminal background checks on Robertson. Accordingly, there is no
genuine issue of material fact as to the existence of that duty. We thus AFFIRM
the district court’s grant of summary judgment in favor of Miller and Aerotek.
II. STANDARD OF REVIEW
“We review a district court’s grant of summary judgment de novo, applying
the same legal standards that the district court applied, and we view the
evidence in the light most favorable to the nonmoving party.” Gilbane Bldg. Co.
v. Admiral Ins. Co., 664 F.3d 589, 593 (5th Cir. 2011) (citation omitted). The
Court affirms “if there is no genuine issue of material fact and one party is
entitled to prevail as a matter of law.” Cedyco Corp. v. PetroQuest Energy, LLC,
497 F.3d 485, 488 (5th Cir. 2007) (citation omitted); see also Fed. R. Civ. P. 56(a).
3
Case: 12-60220 Document: 00512079069 Page: 4 Date Filed: 12/10/2012
No. 12-60220
“We review the district court’s findings of fact for clear error.” Gilbane, 664 F.3d
at 593 (citation omitted).
In this diversity action, we apply Mississippi law as interpreted by the
Mississippi state courts. See Mid-Continent Cas. Co. v. Swift Energy Co., 206
F.3d 487, 491 (5th Cir. 2000). Here, in the absence of on-point Mississippi law,
“[o]ur primary obligation is to make an Erie guess as to how the [Mississippi]
Supreme Court would decide the question before us.” Gilbane, 664 F.3d at 593
(citation omitted); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
“When making an Erie guess, our task is to attempt to predict state law, not to
create or modify it.” SMI Owen Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 442
(5th Cir. 2008) (per curiam) (citation and internal quotation marks omitted).
“We consider [Mississippi] Supreme Court cases that, while not deciding
the issue, provide guidance as to how the [Mississippi] Supreme Court would
decide the question before us.” Gilbane, 664 F.3d at 594 (citation and internal
quotation marks omitted). “Though the decisions and dicta of the [Mississippi]
Supreme Court weigh more heavily in our Erie analysis, we also consider those
decisions of [Mississippi] appellate courts in determining how the [Mississippi]
Supreme Court would rule on this issue.” Am. Int’l Speciality Lines Ins. Co. v.
Rentech Steel L.L.C., 620 F.3d 558, 566 (5th Cir. 2010). “We are bound by our
own precedent interpreting [Mississippi] law unless there has been an
intervening change in authority. Gilbane, 664 F.3d at 594 (citations omitted).
III. DISCUSSION
A claim for negligent hiring under Mississippi law requires “a finding of
duty, breach of duty, causation and damage.” Roman Catholic Diocese of
Jackson v. Morrison, 905 So. 2d 1213, 1229 (Miss. 2005) (en banc).1 “To prevail
1
With respect to Keen’s negligent retention claims, the district court determined that
the alleged rape occurred outside the scope of either Keen or Robertson’s employment. Keen
does not pursue her negligent retention claims on appeal and, therefore, does not challenge
4
Case: 12-60220 Document: 00512079069 Page: 5 Date Filed: 12/10/2012
No. 12-60220
. . . a plaintiff must first prove the existence of a duty.” Enter. Leasing Co. S.
Cent., Inc. v. Bardin, 8 So. 3d 866, 868 (Miss. 2009) (citation omitted). “Whether
a duty exists in a negligence case is a question of law to be determined by the
court.” Belmont Homes, Inc. v. Stewart, 792 So. 2d 229, 232 (Miss. 2001)
(citation omitted).
In hiring an employee, an employer has a duty to “exercise a degree of care
commensurate with [the] nature and danger of the business in which [the
employer] is engaged and the nature and grade of service for which the
[employee] is intended.” Eagle Motor Lines, Inc. v. Mitchell, 78 So. 2d 482, 487
(Miss. 1955) (emphasis, citation, and internal quotation marks omitted).
Whether an employer’s knowledge of an employee’s incompetency was actual or
constructive, the employer “is chargeable with knowledge of the incompetency
. . . if by the exercise of due or reasonable care or diligence [the employer] could
have ascertained such incompetence.” Id. (emphasis, citation, and internal
quotation marks omitted).
Recent cases have further clarified this duty of an employer to exercise
reasonable diligence to ascertain the competency of a prospective employee. In
Jones v. Toy, the Mississippi Supreme Court explained that the relevant inquiry
is whether the employer “knew or should have known of the [employee’s]
incompetence.” 476 So. 2d 30, 31 (Miss. 1985) (citations omitted). A year later,
the U.S. District Court for the Southern District of Mississippi directly extended
Jones to the context of an employer’s negligent hiring liability for an employee’s
that determination. Since we ultimately conclude that Keen did not establish that Miller and
Aerotek owed her a duty to inquire into Robertson’s propensity for violence, by conducting a
pre-employment criminal background check, we need not reach whether Miller and Aerotek’s
failures to conduct such a background check caused her alleged rape. While, on the one hand,
the district court’s unchallenged determination might weigh into the negligent hiring
causation analysis, we note that the “outside the scope of employment test” pertains to the
question of Miller and Aerotek’s vicarious liability for Robertson’s intentional tort, an
altogether distinct cause of action that Keen did not pursue.
5
Case: 12-60220 Document: 00512079069 Page: 6 Date Filed: 12/10/2012
No. 12-60220
intentional tort. See Thatcher v. Brennan, 657 F. Supp. 6, 10-11 (S.D. Miss.
1986). The Thatcher court looked to whether the employer knew or should have
known of the employee’s “propensity for violence.” Id. at 11.
Finally, in Doe ex rel. Brown v. Pontotoc County School District, the
Mississippi Court of Appeals stated that, to hold an employer liable for injuries
inflicted by its employee, a plaintiff must prove that (i) the employer had actual
notice of the employee’s incompetence or unfitness; or (ii) the employer’s
“situation was such as to cast upon [the employer] the duty of inquiring” and the
employer could have discovered the employee’s incompetence or unfitness “by
proper diligence.” 957 So. 2d 410, 416-17 (Miss. App. 2007) (citing, inter alia,
Jones, 476 So. 2d at 31; Eagle, 78 So. 2d at 486-87).
Here, the district court assumed, for purposes of ruling on Miller and
Aerotek’s summary judgment motions, that Robertson had a propensity for
violence. Furthermore, it is undisputed that neither Miller nor Aerotek had
actual knowledge of that propensity. Therefore, at issue is whether Miller or
Aerotek should have known of Robertson’s propensity for violence. See Thatcher,
657 F. Supp. at 10-11.
Keen presents three arguments on appeal as to why Miller and Aerotek
should have known of Robertson’s violent propensity: (i) that Mississippi law
imposes a duty on employers to conduct criminal background checks, at least
within the factual circumstances of this case; and (ii) that Miller and Aerotek
had internal policies to conduct background checks on all new hires, and that
those policies created duties that Miller and Aerotek dispositively breached by
failing to comply with the policies.2 Keen also contends that (iii) even if we reject
2
We need not examine the actual language of Miller and Aerotek’s respective policies.
For the limited purpose of addressing Keen’s proposition that failure to comply with internal
policies is dispositive evidence of breach of duty, we assume that the policies indeed did
require Miller and Aerotek to conduct background checks on all new hires.
6
Case: 12-60220 Document: 00512079069 Page: 7 Date Filed: 12/10/2012
No. 12-60220
her first two arguments, disposition on summary judgment was inappropriate
because the report of Keen’s expert and the testimony of Miller’s corporate
representative created a genuine issue of material fact as to whether Miller and
Aerotek should have known of Robertson’s propensity for violence.
Keen’s first argument, in essence, amounts to a theory of negligence per
se. “Negligence per se renders a defendant liable without proof of reasonable
care when the plaintiff proves the defendant violated an applicable statute.”
Dooley v. Byrd, 64 So. 3d 951, 960 (Miss. 2011) (citation omitted). If such a
statute applies, the defendant is negligent merely for violating it. Id. (citations
omitted). However, the plaintiff still must prove causation and damages. Id.
(citations omitted).
Here, there was no statute for Miller and Aerotek to have violated.
However, if Mississippi common law does impose a duty to conduct background
checks, and Miller and Aerotek did not conduct them, then our inquiry as to
liability similarly would end there. Miller and Aerotek would be liable per se, for
their breach of the applicable duty, whether or not they exercised reasonable
care. Under such circumstances, summary judgment would have been
inappropriate, and we would remand to the district court for further proceedings
on causation and damages.
We address Keen’s arguments in turn.
A. Whether Mississippi law imposes a duty on employers to conduct
criminal background checks, at least within the factual
circumstances of this case.
7
Case: 12-60220 Document: 00512079069 Page: 8 Date Filed: 12/10/2012
No. 12-60220
This question is one of first impression in Mississippi.3 However,
numerous other jurisdictions have addressed it, as has Section 213 of the
Restatement (Second) of Agency, which the Mississippi Supreme Court has
“expressly quoted and adopted.” Foradori v. Harris, 523 F.3d 477, 486-87 (5th
Cit. 2008) (citing Tillman ex rel. Migues v. Singletary, 865 So. 2d 350, 353 (Miss.
2003) (en banc) (citing Restatement (Second) of Agency § 213 (1958))). The
unanimous rule, with only minor and nuanced deviation, is that: “One can
normally assume that another who offers to perform simple work is competent.
If, however, the work is likely to subject third persons to serious risk of great
harm, there is a special duty of investigation.” Restatement (Second) of Agency
§ 213 cmt. d.
Here, it is undisputed that Aerotek hired Robertson to work on the Miller
contract to remove tar balls from the Gulf Coast. Nothing about the nature of
that work could have suggested to Aerotek or Miller that Robertson was likely
to subject Keen to the risk of assault, or was otherwise uniquely incompetent to
perform the work. If a criminal background check were necessary to screen for
indicia that a manual laborer might assault a co-worker, it is difficult to envision
a fact pattern in which a background check would not be necessary. Of course,
the unanimous caselaw from around the country says that there is no such
generalized duty on employers, to conduct pre-employment background checks
on all new hires, irrespective of the particular circumstances of their prospective
employments.4
3
In her briefs, Keen advances her argument concerning this question solely with
citations to Mississippi cases discussing an employer’s obligations to act with “due care,”
Jones, 476 So. 2d at 31, and “proper diligence,” Pontotoc Cnty., 957 So. 2d at 417 (citation and
internal quotation marks omitted). Especially in light of the proceeding analysis, we decline
to infer a generalized duty on employers to conduct criminal background checks on all
prospective employees merely from the sui generis language cited by Keen.
4
See, e.g., Kendall v. Gore Props., Inc., 236 F.2d 673, 678 (D.C. Cir. 1956); Raleigh v.
Performance Plumbing & Heating, Inc., 130 P.3d 1011, 1016-17 & n.6 (Colo. 2006); Garcia v.
8
Case: 12-60220 Document: 00512079069 Page: 9 Date Filed: 12/10/2012
No. 12-60220
This conclusion is strengthened by the fact that Mississippi’s legislature
has mandated that employers conduct criminal background checks on all new
hires within certain specified fields. See, e.g., Miss. Code Ann. §§ 37-9-17
(substitute teachers), 43-11-13(5)(b) (health care facility employees); see also id.
§§ 73-17-11, 73-21-85 (conditioning the award of a nursing home administrator’s
license and a pharmacist’s license, respectively, on the results of a criminal
background check). If Mississippi’s legislature intended to rely on common law
principles to impose a duty on employers to conduct criminal background checks
on all employees, it would not have resorted to statutes to impose them in the
specified fields noted above. Similarly, by not specifying manual labor as a field
requiring background checks, Mississippi’s legislature created the strong
inference that it did not intend to mandate them for all new hires in that field.
As an Erie court, we are especially hesitant to impose a generalized
common law duty to conduct background checks under Mississippi law when (i)
no prior Mississippi precedent directly imposes such a duty; (ii) the Mississippi
Supreme Court has expressly adopted Section 213 of the Restatement (Second)
of Agency, which rejects such a duty; (iii) no other jurisdiction imposes such a
duty in comparable circumstances; and (iv) Mississippi’s legislature has imposed
a statutory duty to conduct background checks in certain specified fields, but not
in the instant one.
Duffy, 492 So. 2d 435, 441 (Fla. Ct. App. 2d Dist. 1986); Worstell Parking, Inc. v. Aisida, 442
S.E.2d 469, 471 (Ga. Ct. App. 1994) (citation omitted); Schmidt v. HTG, Inc., 961 P.2d 677,
695 (Kan. 1998); Evans v. Morsell, 395 A.2d 480, 484 & n.5 (Md. 1978); Foster v. Loft, Inc., 526
N.E.2d 1309, 1313 & n.8 (Mass. Ct. App. 1988); Ponticas v. K.M.S. Invs., 331 N.W.2d 907,
912-13 (Minn. 1983) (citations omitted); Hollingsworth v. Quick, 770 S.W.2d 291, 294 (Mo. Ct.
App. W.D. 1989) (citation omitted); Moricle v. Pilkington, 462 S.E.2d 531, 534 (N.C. Ct. App.
1995) (citation omitted); Rozzi v. Star Pers. Servs., No. CA2006-07-162, 2007 WL 1531427, at
*3 (Ohio Ct. App. May 29, 2007) (unpublished); Iverson v. NPC Int’l, Inc., 801 N.W.2d 275,
279-80 (S.D. 2011).
9
Case: 12-60220 Document: 00512079069 Page: 10 Date Filed: 12/10/2012
No. 12-60220
Accordingly, Keen’s first argument, that Mississippi law imposes a duty
on employers to conduct criminal background checks, at least within the factual
circumstances of this case, is unavailing.5
B. Whether non-compliance with internal corporate hiring policies
is dispositive evidence of negligence under Mississippi law.
Keen next argues that Miller and Aerotek’s respective internal policies,
which purportedly require background checks on all new hires, created duties
that they dispositively breached by failing to comply with the policies. In
making this argument, Keen relies almost exclusively on language from a 1942
opinion of this Court:
The evidence shows that it was the rule and custom in the
Montgomery, Ward & Company store to keep the aisles
between the counters clear “and not to place a box or
carton in the aisle during business hours.” This rule was
a standard of care set up by the defendant itself, but this
standard of care was departed from in the case at bar.
Phillips v. Montgomery Ward & Co., 125 F.2d 248, 249 (5th Cir. 1942).
Admittedly, Phillips could be read as treating the defendant department
store’s non-compliance with its internal policy, to keep its aisles clear during
business hours, as evidence dispositive of breach of duty. However, Phillips also
could be read as treating the department store’s non-compliance as evidence
merely suggestive of breach of duty. At no point in Phillips did this Court
expressly state, one way or the other, whether the department store’s non-
compliance was dispositive or merely suggestive. Fortunately, we need not reach
a definitive interpretation of the language from Phillips because subsequent
5
In reaching this conclusion, we need not address Miller and Aerotek’s arguments that
the exigent circumstances surrounding the Deepwater Horizon explosion, and the resultant
Macondo well leak, act as a factor mitigating any breach of a duty to conduct background
checks on all prospective hires. Furthermore, we need not address Aerotek’s arguments
concerning the potential conflict of such a generalized duty, especially if an adverse
background check would jeopardize the prospective hire’s employment, with Title VII of the
Civil Rights Act of 1964 and its implementing regulations.
10
Case: 12-60220 Document: 00512079069 Page: 11 Date Filed: 12/10/2012
No. 12-60220
Mississippi cases, and subsequent cases from this Court applying those
Mississippi cases, have made clear that a defendant’s non-compliance with its
internal policies is but one factor in the breach of duty analysis.6
In Steele v. Inn of Vicksburg, Inc., a hotel had an internal policy to treat
the water in its pool, or to close the pool, if the water became too cloudy. See 697
So. 2d 373, 374-76 (Miss. 1997). On a busy weekend in which the hotel hosted
a youth soccer tournament, its management declined to treat the pool, which
allegedly was cloudy, because, in the short term, the treating chemicals would
have increased the pool’s cloudiness. A young boy drowned after his adult
chaperone failed to observe him sink to the bottom of the pool. At trial, evidence
suggested that the chaperone’s negligent supervision, or the boy’s own
consumption of a substantial amount of food shortly before swimming, may have
been contributing causes to his drowning. The jury declined to find the hotel
negligent on account of its non-compliance with the internal policy, despite
“ample evidence” that the pool water was in fact cloudy. Id. at 377.
The Mississippi Supreme Court rejected a sufficiency of the evidence
challenge by the boy’s mother and affirmed the jury’s verdict. See id. In doing
so, the court explained that there was sufficient evidence for the jury to have
found that the hotel was negligent or to have found that the hotel was not
negligent. See id. While the court did not expressly discuss whether non-
compliance with the internal policy was dispositive evidence of breach of duty,
its rejection of the mother’s sufficiency of the evidence challenge necessarily
eschewed such a theory. After all, if non-compliance with the internal policy was
dispositive as to the hotel’s breach then, by definition, the jury’s verdict would
have been contrary to the weight of the evidence.
6
Accordingly, we also need not address whether Phillips is distinguishable, regardless,
because it involved premises liability to a business invitee rather than negligent hiring
liability to a second employee.
11
Case: 12-60220 Document: 00512079069 Page: 12 Date Filed: 12/10/2012
No. 12-60220
More recently, in Boyd Tunica, Inc. v. Premier Transportation Services,
Inc., the Mississippi Court of Appeals addressed a casino shuttle operator’s non-
compliance with its internal policy requiring seatbelt usage by passengers. See
30 So. 3d 1242, 1249-54 (Miss. Ct. App. 2010). Mississippi law did not require
shuttle passengers to have worn seatbelts. In a suit between the casino and the
shuttle operator, following an accident involving one of the shuttles, the casino
alleged that the operator’s non-compliance with its internal seatbelt policy was
dispositive evidence of breach of duty. The court rejected the casino’s argument,
explaining that “[i]t is counterintuitive to suggest that the law would impose
liability on [the operator] for violating its seat-belt policy when, in this instance,
the law does not require that [the operator] even provide seat-belt restraints.”
Id. at 1250. The court concluded that “the law in [Mississippi] is that a breach
of one’s internal policies may be considered in determining whether one has
exercised the appropriate standard of care” but that “we see no reason why [the
operator] should be punished for insisting that its passengers wear seat belts,
even though they are not required by law to do so.” Id. at 1253-54 (referring,
among other authorities, to Steele, 697 So. 2d 373).
Thus, in Mississippi, non-compliance with an internal policy is evidence
that is probative of, but not dispositive of, breach of duty. See id. at 1253-54. As
an Erie court, Steele and Boyd Tunica are conclusive on our analysis in the
instant case, even if Phillips could have been read to stand for our recognition
of a dispositive breach theory under Mississippi law in 1942.
Furthermore, this Circuit’s own case law has subsequently clarified that
non-compliance with an internal policy is evidence simply suggestive of breach
of duty. In Parker v. Wal-Mart Stores, Inc., albeit in an unpublished, per curiam,
opinion, we directly stated that:
Under Mississippi law, breach of one’s internal policies
may be considered in determining whether one has
12
Case: 12-60220 Document: 00512079069 Page: 13 Date Filed: 12/10/2012
No. 12-60220
exercised the appropriate standard of care. . . . [H]owever,
internal policies are only one consideration among many in
that determination. . . . [W]e are not aware of any cases in
which a party’s violation of its own internal safety policies
established a dangerous condition per se.
464 F. App’x 224, 227-28 (5th Cir. 2010) (internal quotation marks omitted)
(citing Steele, 697 So. 2d at 377; Boyd Tunica, 30 So. 3d at 1253).
For these reasons, Keen’s second argument also fails. Miller and Aerotek’s
non-compliance with their internal policies, which purportedly require
background checks on all new hires, is not dispositive evidence of their breach
of duty.
C. Whether there is a genuine issue of material fact as to whether
Miller and Aerotek should have known of Robertson's violent
propensity.
Under Federal Rule of Appellate Procedure 28(a)(9)(A), the argument
section of an appellant’s brief must contain the “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.” After all, Federal Rule of Civil Procedure 56 does
not impose upon us or “‘the district court a duty to sift through the record in
search of evidence to support a party’s opposition to summary judgment.’”
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 915-16 n.7 (5th Cir. 1992)).7
Keen argues that she offered sufficient evidence to create a genuine issue
of material fact as to whether Miller and Aerotek should have known of
Robertson’s propensity for violence. Accordingly, she argues that the district
court should have permitted her to present her negligent hiring claims to the
jury. In support of this argument, Keen cites to the report of her human
7
Thus, to the extent that additional record evidence, or additional legal authorities
pertaining to negligent hiring and liability for an employee’s intentional torts, would have
allowed Keen to advance beyond the summary judgment stage, Keen waived any arguments
reliant on those authorities.
13
Case: 12-60220 Document: 00512079069 Page: 14 Date Filed: 12/10/2012
No. 12-60220
resources expert, which states that conducting background checks on all new
hires is standard corporate practice, and to the testimony of a corporate
representative for Miller, who affirmed that conducting background checks is
Miller’s standard practice.
Keen’s argument relating to the report of her human resources expert is
foreclosed by both Mississippi and Fifth Circuit precedent. As previously noted,
the existence of a duty “in a negligence case is a question of law to be determined
by the court.” Belmont Homes, 792 So. 2d at 232 (citation omitted). Therefore,
an expert report, without more, is insufficient “to establish a legal duty and a
breach thereof” or to create a genuine issue of material fact as to duty. Brown
ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So. 2d 129, 131 (Miss. 2003)
(citations and footnote omitted). Accord C.P. Interests, Inc. v. Cal. Pools, Inc.,
238 F.3d 690, 697 (5th Cir. 2001) (applying Texas law). The report of Keen’s
human resources expert creates no genuine issue of material fact sufficient for
Keen to withstand Miller and Aerotek’s summary judgment motions.
The testimony of Miller’s corporate representative is similarly unavailing.
As explained above, non-compliance with an internal corporate policy or custom
is evidence merely suggestive of breach of duty, not evidence dispositive of it.
See Boyd Tunica, 30 So. 3d at 1253-54. Without more, the testimony does not
necessarily create a genuine issue of material fact.
Here, the district court determined that Keen “cited no legal authority on
which the Court may hold that Miller and Aerotek had a duty to inquire into
Robertson’s criminal history prior to hiring him to work on the oil spill clean-up
pursuant to their contract.” Despite 46 cumulative pages of appellate briefing,
Keen has offered no cognizable legal authority on which to challenge that
determination. Keen also has offered no cognizable record evidence, other than
the testimony of Miller’s corporate representative, to establish the existence of
a genuine issue of material fact. While perhaps probative of negligent hiring,
14
Case: 12-60220 Document: 00512079069 Page: 15 Date Filed: 12/10/2012
No. 12-60220
the isolated testimony from the corporate representative simply is not enough
for Keen to withstand summary judgment.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Miller and Aerotek.
15