Worstell Parking, Inc. v. Aisida, 442 S.E.2d 469 (Ga. App. 1994)
Key point: Churches that hire a worker with a criminal record are not necessarily responsible for injuries the worker causes to others. There must be a correlation between the criminal record and the kind of injury caused by the worker in order for the church to be responsible for the injuries on the basis of negligent selection.
A Georgia court ruled that an employer was not responsible for a worker's assault despite his criminal record, since the criminal record did not reveal any crimes of violence.
While the case did not involve a church, the court's conclusions will be relevant to churches and other religious organizations that often are accused of negligently hiring workers with criminal records. A parking lot attendant assaulted a customer without provocation. The customer sued the assailant's employer on the basis of negligent hiring. That is, the employer was responsible for the customer's injuries as a result of its negligence in hiring the attendant despite his criminal record. In fact, the attendant had been convicted for various drug offenses. The court concluded that evidence of these crimes did not suggest that the attendant posed a risk of assault or other violent behavior. It observed:
An employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's violent and criminal propensities …. [T]he record contains an affidavit of [the parking lot's] owner and manager [who] stated that he had no knowledge that the parking attendant was a violent person and that he was not aware of any prior violent acts or violent propensities of the attendant. [He] also stated that he had never received any complaints about the attendant. [The victim] alleges that the [employer] had constructive notice of the attendant's violent propensity because the attendant checked "yes" in response to a question on his employment application regarding whether he had been arrested for any criminal charges, excluding minor offenses. Although the record reflects that the attendant had been convicted of several violations of [drug laws], the record is devoid of any evidence that the parking attendant had a propensity towards violence or that [his employer] knew of that propensity. Furthermore, [the victim's] argument that [the employer] had a duty to investigate the attendant's past behavior before [it] employed the attendant is without merit.
This case is important for a number of reasons, including the following:
- Most importantly, it illustrates that employers (including churches) are not automatically responsible on the basis of negligent hiring for assaults and other injuries caused by their employees. As the court observed, "[a]n employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's violent and criminal propensities."
- An employer's affidavit can be helpful in getting a lawsuit dismissed based on negligent hiring—if the employer had no prior knowledge of an employee's violent or criminal propensities. The court placed great emphasis on the employer's affidavit in this case. The affidavit contained the following representations: (1) The employer had no knowledge that the parking attendant was a violent person; (2) the employer was not aware of any prior violent acts or violent propensities of the attendant; and (3) the employer had never received any complaints about the attendant.
- The case illustrates that hiring an employee with a criminal record does not necessarily make the employer responsible for the employee's assaults or other criminal behavior on the basis of negligent hiring. There must be some correlation between the criminal record and the assault. The court concluded that prior drug convictions do not suggest that a prospective employee poses a risk of assault or other violent behavior. Note that two other cases reviewed in this newsletter addressed this same issue. A feature article entitled "Liability for Child Molestation Occurring on Church Premises" reviews a decision of a Texas appeals court. Doe v. Boys Clubs of Greater Dallas, 868 S.W.2d 942 (Tex. App. Amarillo 1994). The court concluded that prior convictions for driving while intoxicated do "not put a reasonable person on notice that [one] might be a pedophile." A recent development under the topic "sexual misconduct by clergy and church workers" addresses a decision of a Washington appeals court. Carlsen v. Wackenhut Corp., 868 P.2d 882 (Wash. App. Div. 2 1994). The Washington court ruled that an employer could be sued on the basis of negligent hiring for a sexual assault by one of its employees. The court noted that the employee had a previous criminal conviction for robbery, and concluded that this placed the employer on notice that the individual had a "propensity for violent behavior" (including a sexual assault)
- The court ended its opinion by observing that the victim's "argument that [the employer] had a duty to investigate the attendant's past behavior before [it] employed the attendant is without merit." This suggests that the parking lot owner had no duty to investigate the attendant's past criminal behavior before hiring him.
While not all courts would agree with the court's conclusions, the case will be a useful precedent for churches who are sued as a result of the misconduct of employees and volunteers.
