Employment Practices – Part 3

A Pennsylvania court rejected a woman’s claim that her employer’s failure to conduct an adequate criminal background check on an employee who assaulted her made it liable on the basis of negligent hiring.

Church Law and Tax2004-09-01

Employment Practices – Part 3

Key point 10-06. A church may be legally responsible on the basis of negligent selection for injuries resulting from the acts of a minister or other worker not involving sexual misconduct.
Negligence as a Basis for Liability

* A Pennsylvania court rejected a woman’s claim that her employer’s failure to conduct an adequate criminal background check on an employee who assaulted her made it liable on the basis of negligent hiring for the employee’s act. A bank teller was shot by a security guard during a robbery attempt. She later sued her employer, claiming that it was liable for the guard’s act on the basis of negligent hiring. In particular, she argued that the employer failed to conduct an “adequate” criminal records check on the guard when it hired him because it did not check fingerprints. A jury ruled in favor of the victim, and ordered the employer to pay $850,000 in damages. An appeals court reversed this judgment.

The employer conceded that it hired the guard without previously conducting an employment history check, criminal record check, or fingerprint check. It had sent the local and state criminal background checks (without fingerprints) to be completed two weeks after the guard was hired. Both criminal background checks later indicated that the guard had not been convicted of a crime. The evidence further showed that if a criminal records check using fingerprints had been conducted, no crimes would have been disclosed. As a result, the guard’s criminal act against the victim would not have been foreseeable by the bank despite its failure to conduct a criminal records check using fingerprints because the guard had not committed criminal acts in the past and there would have been no indication that he would commit criminal acts in the future. The court concluded, “The bank’s [criminal records check] indicated that the guard did not have a criminal record, and, thus, it would have been impossible for it to realize that its negligent conduct would present the guard an opportunity to commit the crime of armed bank robbery. Indeed, the wrongful actions of a third party are not deemed to be foreseeable by a negligent actor merely because he or she could have speculated that they might conceivably occur.”

The court noted that witnesses testified at trial that the guard has abused alcohol and smoked marijuana while on duty with a former employer. This evidence, even if known by the bank, “would have demonstrated that the guard was a poor employee but would not have demonstrated his capacity to commit a crime of violence …. Any belief by the bank’s agents that the guard could have committed criminal activity would have been purely speculative.” Mahan v. Am-Gard, Inc., 841 A.2d 1052 (Pa. Super. 2003).

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