• Key point 10-05.3. Churches can reduce the risk of liability based on negligent supervision for sexual misconduct involving adult victims by adopting risk management policies and procedures.
* The Georgia Supreme Court ruled that an employer was not liable for a sexual assault committed by one of its employees because it had done a criminal background check on the employee prior to hiring him that revealed no criminal history of sexual assaults. A woman entered a hospital’s residential treatment facility as a patient. Shortly after arriving, a mental health assistant (Todd) employed by the hospital made inappropriate comments to her; came to her room and made sexual advances; and one evening administered medication to her that left her incapacitated and then raped her. The woman sued the hospital for her injuries on several grounds, including negligent hiring. A trial court dismissed the case on the ground that the hospital exercised ordinary care in the hiring process and that dishonest information in the perpetrator’s employment application did not put the hospital on notice that he had a propensity to commit sexual assaults. The victim appealed. The trial court concluded that the evidence clearly demonstrated that the hospital had exercised due care in hiring the perpetrator based on the fact that it had used a private investigation company called ChoicePoint to investigate his background and that after conducting a seven-year criminal record search in the two counties where he had lived and worked, Choicepoint reported that “no record” was found in either county.
The state supreme court began its opinion by noting that an employer “has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee’s tendencies or propensities that the employee could cause the type of harm sustained by another. The employer is subject to liability only for such harm as is within the risk.”
The court rejected the victim’s claim that the hospital was liable for the negligent hiring or retention of the perpetrator solely because his employment provided him with the access or opportunity to injure her. Rather, the relevant question was whether the hospital “knew or in the exercise of ordinary care should have known that the employee it hired and retained to perform duties involving personal contact with medicated, vulnerable patients, was unsuitable for that position because he posed a reasonably foreseeable risk of personal harm to patients like [the victim in this case].”
The court acknowledged that criminal background checks of employees are required by law in only a few vocations such as schools and some preschools. However,
while there may be no statutory requirement that employers in other businesses conduct background or criminal checks on potential employees, we reject the position that employers who fail to conduct such searches can never be found liable for negligent hiring because of this failure. Whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case. Thus, while investigation of an employee’s past may not be necessary when filling the position of parking lot attendant, a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.
The victim claimed that the hospital’s negligent hiring was proven by the following facts: (1) the Choicepoint background check could not locate any enrollment records from the hospital the perpetrator had attended; (2) Choicepoint determined that the perpetrator had misrepresented on his employment application form the reason why he had been fired by a previous employer (stating that he had been “laid off” when in fact he had been fired for poor attendance); (3) ChoicePoint had been unable to confirm the existence of two prior employers listed by the perpetrator or any details of his alleged employment at these businesses; (4) the hospital employees who should have interviewed the perpetrator prior to employment could not remember doing so.
The court concluded as a matter of law (meaning its conclusion was so certain that it would not be referred to a jury) that the hospital was not guilty of negligent hiring. It observed,
It is uncontroverted that the hospital contracted with ChoicePoint, a professional investigation service, to perform a background check on the perpetrator; that at the time it hired him, the hospital had no reason to question the accuracy or thoroughness of the information provided by ChoicePoint; and that ChoicePoint’s investigation positively reflected that the perpetrator had no convictions for any crimes or any record of criminal activity. ChoicePoint’s investigation did reveal problems, namely, the inaccurate or incomplete employment and education information in the employment application, but there is no question of fact that these problems did not involve any accusations of criminal activities or violent behavior or any other indication that he posed any risk of personal harm to others. Accordingly, the evidence uncontrovertedly establishes that the hospital did not “disregard indications of a propensity to inflict physical harm which ought to arouse suspicion and investigation.” Thus, while the inaccurate or incomplete information provided by the perpetrator may have rendered him an unsuitable employee for reasons unrelated to the victim’s injuries, no question remains as to her negligence claim that the hospital did not breach its duty to exercise ordinary care to avoid hiring an employee who posed a reasonably foreseeable risk of inflicting personal harm on others.
The court stressed that “issues of negligence” are “not ordinarily susceptible of summary adjudication,” but, because the evidence here “is plain, palpable and undisputable that the hospital is not liable under a negligent hiring/retention theory for the injuries she sustained because of the attack, we affirm the trial court’s grant of summary judgment to the hospital.”
Application. This case is significant for the following reasons:
1. Most importantly, the court addressed the question of whether employers are legally required to conduct criminal background checks. The court concluded that while criminal background checks are required by statute for a few professions, this requirement has not been applied to all employers generally. However, it cautioned that “while investigation of an employee’s past may not be necessary when filling the position of parking lot attendant, a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.” This suggests that a failure to conduct background checks for employees who will be working in a “sensitive business” may constitute evidence of negligence. The court did not explain what it meant by a “sensitive business,” but it certainly is possible that it had in mind positions involving access to minors.
2. The court also provided helpful guidance in interpreting the results of background checks. The ChoicePoint background check failed to locate any enrollment records from the hospital the perpetrator had attended; revealed that the perpetrator had misrepresented the reason why he had been fired by a previous employer (stating that he had been “laid off” when in fact he had been fired for poor attendance); and, was unable to confirm the existence of two prior employers listed by the perpetrator. These results did not amount to “negligent hiring” of the perpetrator since they could not have placed the hospital on notice that he might engage in a sexual assault.
3. It is important to emphasize that the court’s conclusions were in the form of a summary judgment. This means that the court was so sure of its conclusions that it declined to remand the case back to a jury for further consideration. This has the effect of reinforcing the strength of those conclusions. Munroe v. Universal Health Services, Inc., 596 S.E.2d 604 (Ga. 2004).
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