Law, Business and Society 11th Edition by Tony McAdams

Exercise 28

Judge Lansing
FACTS
Honeywell employed Randy Landin from 1977 to 1979 and from 1984 to 1988. From 1979 to 1984 Landin was imprisoned for the strangulation death of Nancy Miller, a Honeywell coemployee. On has release from prison, Landin reapplied at Honeywell. Honeywell rehired Landin as a custodian in Honeywell's General Offices facility in South Minneapolis in August 1984 Because of workplace confrontations Landin was twice transferred, first to the Golden Valley facility in August 1986, and then to the St. Louis Park facility in August 1987.
Kathleen Nesser was assigned to Landin's maintenance crew in April 1988. Landin and Nesser became friends and spent time together away from work. When Landin expressed a romantic interest, Nesser stopped spending time with Landin. Landin began to harass and threaten Nesser both at work and at home. At the end of June, Landin's behavior prompted Nesser to seek help from her supervisor and to request a transfer out of the St. Louis Park facility.
On July 1,1988, Nesser found a death threat scratched on her locker door. Landin did not come to work on or after July 1, and Honeywell accepted his formal resignation on July 11, 1988. On July 19, approximately six hours after her Honeywell shift ended, Landin killed Nesser in her driveway with a close- range shotgun blast. Landin was convicted of first-degree murder and sentenced to life imprisonment.
Jean Yunker, as trustee for the heirs and next-of-kin of Kathleen Nesser, brought this wrongful death action based on theories of negligent hiring, retention, and supervision of a dangerous employee. Honeywell moved for summary judgment and, for purposes of the motion, stipulated that it failed to exercise reasonable care in the hiring and supervision of Landin. The trial court concluded that Honeywell owed no legal duty to Nesser and granted summary judgment for Honeywell.
ISSUE
Did Honeywell have a duty to Kathleen Nesser to exercise reasonable care in hiring, retaining, or supervising Randy Landin
ANALYSIS
In determining that Honeywell did not have a legal duty to Kathleen Nesser arising from its employment of Randy Landin, the district court analyzed Honeywell's duty as limited by its ability to control and protect its employees while they are involved in the employer's business or at the employer's place of business. Additionally, the court concluded that Honeywell could not have reasonably foreseen Landin s killing Nesser.
Incorporating a "scope of employment" limitation into an employer's duty borrows from the doctrine of respondeat superior. However, of the three theories advanced for recovery, only negligent supervision derives from the respondeat superior doctrine, which relies on connection to the employer's premises or chattels. We agree that negligent supervision is not a viable theory of recovery because Landin was neither on Honeywell's premises nor using Honeywell's chattels when he shot Nesser.
The remaining theories, negligent hiring and negligent retention, are based on direct, not vicarious, liability. Negligent hiring and negligent retention do not rely on the scope of employment but address risks created by exposing members of the public to a potentially dangerous individual. These theories of recovery impose liability for an employee's intentional tort, an action almost invariably outside the scope of employment, when the employer knew or should have known that the employee was violent or aggressive and might engage in injurious conduct.
I
Minnesota first explicitly recognized a cause of action based on negligent hiring in Ponticas in 1983. Ponticas involved the employment of an apartment manager who sexually assaulted a tenant. The Supreme Court upheld a jury verdict finding the apartment operators negligent in failing to make a 'easonable investigation into the resident manager's background before providing him with a passkey. The court defined negligent hiring as
predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.
Honeywell argues that under Ponticas it is not liable for negligent hiring because, unlike providing a dangerous resident manager with a passkey, Landin's employment did not enable him to commit the act of violence against Nesser. This argument has merit, and we note that a number of jurisdictions have expressly defined the scope of an employer's duty of reasonable care in hiring as largely dependent on the type of responsibilities associated with the particular job. See Connes, 831 P.2d at 1321 (employer's duty in hiring is dependent on anticipated degree of contact between employee and other persons in performing employment duties).
Ponticas rejected the view that employers are required to investigate a prospective employee's criminal background in every job in which the individual has regular contact with the public. Instead, liability is determined by the totality of the circumstances surrounding the hiring and whether the employer exercised reasonable care. The court instructed that
[t]he scope of the investigation is directly related to the severity of the risk third parties are subjected to by an incompetent employee. Although only slight care might suffice in the hiring of a yardman, a worker on a production line, or other types of employment where the employee would not constitute a high risk of injury to third persons, when the prospective employee is to be furnished a passkey permitting admittance to living quarters of tenants, the employer has the duty to use reasonable care to investigate his competency and reliability prior to employment
Applying these principles, we conclude that Honeywell did not owe a duty to Nesser at the time of Landin's hire. Landin was employed as a maintenance worker whose job responsibilities entailed no exposure to the general public and required only limited contact with coemployees. Unlike the caretaker in Ponticas, Landin's duties did not involve inherent dangers to others, and unlike the tenant in Ponticas , Nesser was not a reasonably foreseeable victim at the time Landin was hired.
To reverse the district court's determination on duty as it relates to hiring would extend Ponticas and essentially hold that ex-felons are inherently dangerous and that any harmful acts they commit against persons encountered through employment will automatically be considered foreseeable. Such a rule would deter employers from hiring workers with a criminal record and "offend our civilized concept that society must make a reasonable effort to rehabilitate those who have erred so they can be assimilated into the community."
Honeywell did not breach a legal duty to Nesser by hiring Landin because the specific nature of his employment did not create a foreseeable risk of harm, and public policy supports a limitation on this cause of action. The district court correctly determined that Honeywell is not liable to Nesser under a theory of negligent hiring.
II
In recognizing the tort of negligent hiring, Ponticas extended established Minnesota case law permitting recovery under theories of negligent retention.
*****
The difference between negligent hiring and negligent retention focuses on when the employer was on notice that an employee posed a threat and failed to take steps to ensure the safety of third parties. The Florida appellate court has provided a useful definition:
Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness, and the issue of liability primarily focuses upon the adequacy of the employer's pre-employment investigation into the employee's background. Negligent retention, on the other hand, occurs when, during the course of employment the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment
... The record contains evidence of a number of episodes in Landin's postimprisonment employment at Honeywell that demonstrate a propensity for abuse and violence toward coemployees.
While at the Golden Valley facility, Landin sexually harassed female employees and challenged a male coworker to fight. After his transfer to St. Louis Park, Landin threatened to kill a coworker during an angry confrontation following a minor car accident. In another employment incident, Landin was hostile and abusive toward a female coworker after problems developed in their friendship. Landin's specific focus on Nesser was demonstrated by several workplace outbursts occurring at the end of June, and on July 1 the words "one more day and you're dead" were scratched on her locker door.
Landin's troubled work history and the escalation of abusive behavior during the summer of 1988 relate directly to the foreseeability prong of duty. The facts... show that it was foreseeable that Landin could act violently against a coem-ployee and against Nesser in particular.
This foreseeability gives rise to a duty of care to Nesser that is not outweighed by policy considerations of employment opportunity. An ex-felon's "opportunity for gainful employment may spell the difference between recidivism and rehabilitation," but it cannot predominate over the need to maintain a safe workplace when specific actions point to future violence.
Our holding is narrow and limited only to the recognition of a legal duty owed to Nesser arising out of Honeywell's continued employment of Landin. It is important to emphasize that in reversing the summary judgment on negligent retention, we do not reach the remaining significant questions of whether Honeywell breached that duty by failing to terminate or discipline Lardin, or whether such a breach was a proximate cause of Nesser's death. These are issues generally decided by a jury after a full presentation of facts...
DECISION
We affirm the entry of summary judgment on the theories of negligent hiring and supervision, but reverse the summary judgment on the issue of negligent retention.
AFTERWORD
Published reports indicate the Yunker case was settled out of court soon after this decision was handed down.
Gary Weimerskirch, assistant manager at Main Lanes Bowling Alley, walked in on David Coakley, a mechanic at the bowling alley, and Coakley's girlfriend as they were getting dressed, apparently having just engaged in sexual relations. Coakley then told Weimerskirch that he quit and he began to collect his belongings from the work area. Suddenly, Coakley then grabbed a two-by-four plank, ran toward Weimerskirch, and struck him on the head with it. Coakley's criminal record included drug and alcohol-related offenses, along with one misdemeanor assault. However, his employer did not have any knowledge of this criminal record. Furthermore, Coakley had not acted violently at work previously.
a. What causes of action might Weimerskirch bring against the bowling alley
b. Decide the case. Explain. See Weimerskirch v. Coakley et at., 2008 Ohio 1681 (10th App. Dist. 2008).