704 N.E.2d 621 | Ohio Ct. App. | 1997
Rommel Knox was employed as a service technician trainee by defendant appellee, the Ohio Exterminating Company, Inc., on June 18, 1994. After he was in the home of Patricia Jean Smith, along with his supervisor, Smith reported that her diamond ring had been stolen. Knox was asked to submit to a polygraph test by Ohio Exterminating, but he never returned to work and was *528 terminated shortly thereafter. A felony theft charge was filed against Knox on August 2, 1994. On January 4, 1995, Smith was shot and killed by William Anthony III, while Knox was present. Knox was convicted of the aggravated murder of Smith on August 11, 1996.
This case was initiated as an action for theft of the ring and for the wrongful death of Smith. Plaintiff-appellant, Ruth P. Staten, administrator of the estate of Smith, claims that Smith was killed to prevent her from testifying against Knox in the felony theft case against him. Appellee filed a motion for summary judgment. The trial court found a question of fact as to appellee's liability for negligent employment and damages resulting from the theft of the ring because the employment relationship between Knox and appellee was undisputed. The trial court further found that Knox's criminal record, which appellee should or could have known, raised questions of fact as to negligent hiring, that is, whether Knox was an appropriate person to perform exterminating services in private residences, as well as issues related to foreseeability and proximate cause. The trial court sustained the motion for summary judgment as to appellee's liability for the wrongful death of Smith caused by Knox. Appellant has appealed and raises the following assignment of error:
"The trial court erred when it granted summary judgment to defendant appellee, Ohio Exterminating Co., Inc., on the issue of its liability for the death of Patricia Jean Smith, as this is a factual issue properly submitted to a jury, and Defendant-Appellee is not entitled to judgment as a matter of law."
Appellant contends that the trial court erred in granting appellee summary judgment because an issue of material fact exists as to liability for Smith's death. In order to grant a motion for summary judgment, the court must find that, construing the evidence most strongly in favor of the nonmoving party, there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Harless v. Willis Day Warehousing Co.
(1978),
Appellant alleged negligent hiring, which is recognized as a tort in Ohio. See Byrd v. Faber (1991),
"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
" * * * *529
"(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others[;]
" * * *
"(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control."
Comment d to that section provides:
"The principal may be negligent because he has reason to know that the servant or other agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor. * * *
" * * * An agent, although otherwise competent, may be incompetent because of his reckless or vicious disposition, and if a principal, without exercising due care in selection, employs a vicious person to do an act which necessarily brings him in contact with others while in the performance of a duty, he is subject to liability for harm caused by the vicious propensity. * * *
"One who employs another to act for him is not liable under the rule stated in this Section merely because the one employed is incompetent, vicious, or careless. If liability results it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business at hand. What precautions must be taken depend upon the situation. One can normally assume that another who offers to perform simple work is competent. If, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation."
The elements of negligent hiring have been set forth in Evansv. Ohio State Univ. (1996),
"`"(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries."'"
At issue in this case is the fifth element, appellee's negligence in hiring Knox and whether this was the proximate cause of Smith's murder. It is clear that the elements necessary to establish negligence consist of a duty, a breach of *530
that duty, and an injury proximately resulting therefrom. Menifeev. Ohio Welding Products, Inc. (1984),
The courts, in cases involving negligent hiring, have imposed a duty to exercise reasonable care in the selection of employees who, in the performance of their duties, will have the opportunity to commit a crime against a third person. See Smithv. Orkin Exterminating Co., Inc. (La.App. 1989),
This court, in Evans at 740,
In this case, appellant contends that appellee should have conducted an investigation into Knox's background and refused to hire him to work inside customers' homes because of his criminal background. In 1990, Knox had pled guilty to an attempt to carry a concealed weapon and had been convicted of *531 aggravated menacing. In 1990, Knox had also been charged with aggravated burglary and theft, to which a nolle prosequi had been entered. In 1992, he was charged with assault and domestic violence, but the charges were dismissed. The trial court found that evidence of such charges was inadmissible and, even if they were admissible, that it would require "inferences upon inferences upon inferences" to find a contested issue of fact for jury resolution as to appellee's liability for wrongful death.
Here, it was not foreseeable that Knox would have Smith killed six months after his employment relationship with appellee ended and four months after the criminal charges were filed. "Foreseeability is based upon whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of the act." Eagle v.Mathews-Click-Bauman, Inc. (1995),
In the cases in which the courts have found that a jury question exists concerning the reasonableness of the employer's actions where the injury occurs after the employment ended, the former employee used indicia of authority to gain access to the victim's home, a fact not present in this case. See Coath,
For the foregoing reasons, appellant's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DESHLER and REILLY JJ, concur.
ARCHER E. REILLY J., retired, of the Tenth Appellate District, was assigned to active duty under authority of Section