Keen v. Miller Environmental Group, Inc.
702 F.3d 239
5th Cir.2012Background
- Deepwater Horizon spill prompted Gulf Coast cleanup; Miller hired for Pascagoula site and subcontracted staffing to Aerotek.
- Robertson, a Miller-Aerotek technician applicant, concealed a violent criminal history; Aerotek hired him without performing a background check.
- Keen, another Aerotek technician on the same site, alleged rape by Robertson after a June 2010 incident.
- District court granted summary judgment for Miller and Aerotek on Keen’s negligent hiring and retention claims; Keen pursued only negligent hiring on appeal.
- Mississippi law was analyzed to determine whether a duty to conduct criminal background checks exists, and whether internal policies create dispositive evidence of breach; the court found no duty and no dispositive breach evidence.
- Court affirmed summary judgment, holding no genuine issue of material fact as to duty or breach under Mississippi law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mississippi law imposes a duty to conduct background checks | Keen: duty to background checks exists to prevent violence | Miller/Aerotek: no general duty; Restatement §213 permits no such duty absent statute/precedent | No general duty to conduct background checks under Mississippi law |
| Whether internal hiring policies are dispositive evidence of breach | Keen: internal policies create breach if not followed | Policies are probative but not dispositive of breach | Non-compliance with internal policies is not dispositive evidence of breach |
| Whether there is a genuine issue of material fact that Miller/Aerotek should have known Robertson’s violent propensity | Expert report and Miller rep. suggest knowledge of propensity | No duty; evidence insufficient to create material fact; expert testimony inadequate to establish duty | No genuine issue of material fact; district court properly granted summary judgment |
| Whether Keen waived arguments relying on expert or corporate representative evidence | Keen relied on expert report and Miller rep. | Expert report does not establish duty; corporate testimony is not dispositive | Evidence insufficient to create triable issue; summary judgment affirmed |
Key Cases Cited
- Jones v. Toy, 476 So. 2d 30 (Miss. 1985) (duty inquiry: employer should know of incompetence)
- Steele v. Inn of Vicksburg, Inc., 697 So. 2d 373 (Miss. 1997) (internal policy noncompliance as evidence, not dispositive)
- Boyd Tunica, Inc. v. Premier Transportation Services, Inc., 30 So.3d 1242 (Miss. Ct. App. 2010) (internal policy breach may be probative but not dispositive)
- Dooley v. Byrd, 64 So.3d 951 (Miss. 2011) (negligence per se absent statute; causation still required)
- Thatcher v. Brennan, 657 F. Supp. 6 (S.D. Miss. 1986) (context of employer liability for employee torts; reliance on outside scope of employment)