September 30, 2023

Identify and discuss the legal elements of negligent hiring.

Superior Electrical (Superior) was in the business of installing electrical wiring and related components at new construction sites. Because some employees were assigned company vehicles equipped with company tools and materials and were expected to drive those vehicles to the work sites, Superior required all employment applicants to hold a valid driver’s license. Employees who were assigned a company vehicle were expected to drive for the company during the workday in order to transport job materials and company tools that were kept on the vehicle to job sites. These employees were expected to take the company issued vehicle home at the end of the work day.

Superior hired Cory Jones as an apprentice electrician. Jones had completed an employment application in which he stated that he had a valid driver’s license and had not been cited for any traffic violations. These statements were untrue. His license had been suspended because of numerous traffic violations, including careless driving and driving without a license. Superior did not check on his driving record at the time he was hired because, as an apprentice electrician, he was not being assigned a company vehicle and was not expected to drive for the company during the work day.

About a year after hiring Jones, Superior promoted him to electrician and assigned Jones a company vehicle equipped with a rack for transporting wiring and other materials to and from the work sites. Superior intended that Jones drive during the day for the company and to take the vehicle home after the end of the work day. On a later date, when Jones’s work hours had ended and he was driving home in the company vehicle, he collided with two cars. The collision resulted solely from Jones’s negligence. Carolyn Carson and her son were severely injured in the collision and they sued Superior. The Carson’s alleged two theories of recovery against Superior: respondeat superior and negligent hiring.

Write a four- to five-page paper (not including title and references pages) that addresses the following:

Identify and discuss the legal elements of negligent hiring.

Apply those elements of negligent hiring to the facts given in the case.

Analyze whether Superior would be liable for negligent hiring.

Identify and discuss the legal elements of respondeat superior.

Apply those elements of respondeat superior to the facts given in the case.

Analyze whether Superior would be liable on respondeat superior grounds.

Requirements: 5 pages max

Malorney v. B & L Motor Freight, Inc., 496 NE 2d 1086 – Ill: Appellate Court, 1st Dist. 1986 – Google Scholarhttps://scholar.google.com/scholar_case?case=4195436759662276740&q=Malorney+v.+B%26L+Motor+Freight,+Inc.&hl=en&as_sdt=2006[11/3/2018 9:15:17 AM]was arrested, convicted, and sentenced to 50 years’ with no parole. Plaintiff’scomplaint charges defendant B & L with recklessness and wilful and wantonmisconduct in negligently hiring Harbour as an over-the-road driver withoutadequately checking his background and providing him a vehicle with a sleepingcompartment. Plaintiff seeks compensatory and punitive damages from B & L.Defendant B & L filed a motion for summary judgment contending that it had noduty to verify Harbour’s negative response to the question regarding criminalconvictions. In denying defendant’s motion, the trial court found that (1) Harbourwas hired as an over-the-road driver and furnished with a truck equipped withsleeping quarters; (2) B & L instructed Harbour not to pick up hitchhikers; and (3) itis common knowledge that hitchhikers frequent toll plazas which would show thatB & L knew drivers are prone to give rides to hitchhikers. The court concluded thatthese facts show that B & L had a duty to check Harbour’s criminal backgroundand certified the issue for interlocutory appeal.Defendant argues that it had no duty to investigate Harbour’s nonvehicular criminalbackground nor to verify his denial thereof because of a lack of foreseeability thathe would use the truck to pick up and sexually assault a hitchhiker. To imposesuch a duty would be against public policy by placing too great a burden onemployers. On the other hand, plaintiff posits the argument that factual issues existwhich preclude summary judgment and require a jury determination. We agreeand must affirm the trial court for the following reasons.• 1 Defendant correctly argues that the existence of a duty is a question of law tobe determined by the court, rather than by the factfinder. (Curtis v. County of Cook(1983), 98 Ill.2d 158, 163, 456 N.E.2d 116, 119.) However, once a duty has beenfound, the question of whether the duty was properly performed is a fact questionto be decided by the trier of fact, whether court or jury. Johnson v. Hoover WaterWell Service (1982), 108 Ill. App.3d 994, 1003, 439 N.E.2d 1284, 1290.• 2, 3 The existence of a legal duty is not dependent on foreseeability *268 alone,but includes considerations of public policy and social requirements. (Zimmermanv. Netemeyer (1984), 122 Ill. App.3d 1042, 1047, 462 N.E.2d 502, 506.) In Illinois,two duties, among others not pertinent here, are imposed by law on owners ofvehicles who permit or hire other persons to drive on our highways. The first dutyrequires that the degree of care which an owner should exercise in selecting adriver is that which a reasonable person would exercise under the circumstances.(Tansey v. Robinson (1960), 24 Ill. App.2d 227, 236, 164 N.E.2d 272, 276-77.) Anowner or employer also owes a duty in connection with the entrustment of vehiclesto others. In other words, a vehicle owner has a duty to deny the entrustment of avehicle to a driver it knows, or by the exercise of reasonable diligence could haveknown, is incompetent. (See Seward v. Griffin (1983), 116 Ill. App.3d 749, 754,452 N.E.2d 558, 563.) In addition to these duties, it is well settled in Illinois that acause of action exists against an employer for negligently hiring a person theemployer knew, or should have known, was unfit for the job. Easley v. ApolloDetective Agency, Inc. (1979), 69 Ill. App.3d 920, 931, 387 N.E.2d 1241, 1248.268• 4 B & L contends that a reasonable and prudent motor carrier could not foreseethat one of its drivers would rape and assault a hitchhiker. The court in Neering v.Illinois Central R.R. Co. (1943), 383 Ill. 366, 367, 50 N.E.2d 497, in discussingforeseeability stated that the ultimate injury must be the natural and probable resultof the negligent act or omission such that an ordinary and prudent person ought tohave foreseen as likely its occurrence as a result of the negligence. It is notessential that one should have foreseen the precise injury which resulted from the

Malorney v. B & L Motor Freight, Inc., 496 NE 2d 1086 – Ill: Appellate Court, 1st Dist. 1986 – Google Scholarhttps://scholar.google.com/scholar_case?case=4195436759662276740&q=Malorney+v.+B%26L+Motor+Freight,+Inc.&hl=en&as_sdt=2006[11/3/2018 9:15:17 AM]act or omission. 383 Ill. 366, 380, 50 N.E.2d 497.) This interpretation thus requiresan employer to exercise that degree of care reasonably commensurate with theperils and hazards likely to be encountered in the performance of an employee’sduty, i.e., such care as a reasonably prudent person would exercise in view of theconsequences that might reasonably be expected to result if an incompetent,careless, or reckless agent were employed for a particular duty. Western StoneCo. v. Whalen (1894), 151 Ill. 472, 485, 38 N.E. 241, 244.• 5 Applying these principles to the present case, it is clear that B & L had a duty toentrust its truck to a competent employee fit to drive an over-the-road truckequipped with a sleeping compartment. Lack of forethought may exist where oneremains in voluntary ignorance of facts concerning the danger in a particular act orinstrumentality, where a reasonably prudent person would become advised, on thetheory that such ignorance is the equivalent of negligence. (See 57 Am.Jur.2dNegligence sec. 56 (1971).) Bearing in mind the facts that B *269 & L gave Harbouran over-the-road vehicle with a sleeping compartment and that B & L probablyknew, or should have known, that truckers are prone to give rides to hitchhikersdespite rules against such actions, the question now becomes one of fact —whether B & L breached its duty to hire a competent driver who was to beentrusted with a B & L over-the-road truck.269• 6 Regarding defendant’s public-policy argument, there is no evidence in therecord to justify the contention that the cost of checking on the criminal history ofall truck-driver applicants is too expensive and burdensome when measuredagainst the potential utility of doing so.• 7 Finally, we note that a question of foreseeability is at times a question for thecourt and at times, if varying inferences are possible, a question for the jury. (Neyv. Yellow Cab Co. (1954), 2 Ill.2d 74, 83, 117 N.E.2d 74, 80.) In the present case,B & L did have a duty to check into Harbour’s background so as to ascertainwhether he would be a fit employee. Based on the circumstances of this case, it isapparent that reasonable persons could arrive at different conclusions as towhether B & L used due care in the performance of this duty when it employedHarbour. Questions which are composed of such qualities sufficient to causereasonable persons to arrive at different results should never be determined asmatters of law. (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 84, 117 N.E.2d 74, 80.)Questions of negligence, due care, and proximate cause are questions of fact tobe determined by the factfinder. Johnson v. Hoover Water Well Service (1982),108 Ill. App.3d 994, 1003, 439 N.E.2d 1284, 1290.In affirming the trial court’s denial of summary judgment, we are not expressingany opinion as to the resolution of the facts in this case. Plaintiff has the heavyburden of proving that defendant B & L negligently performed a duty it owed her inentrusting Harbour with an over-the-road truck, and if negligence is found, that itproximately caused her injury. These questions, including the issue of whetherdefendant negligently hired Harbour by not checking his criminal background, arequestions for the trier of fact and become a question of law only when the ultimatefacts have been determined by the factfinder.For these reasons, the order denying summary judgment for defendant is affirmedand the cause is remanded for further proceedings.Affirmed and remanded.LORENZ and PINCHAM, JJ., concur.

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]employment when he caused the injuries:Having specifically found that employee was not acting within thescope of his employment at the time of the accident, the jury had nological basis to find that defendant’s breach of its duty to usereasonable *1013 care in hiring employee was the cause of plaintiffs’injuries.1013Id. at 982.We uphold the judgment of the court of appeals requiring dismissal of therespondeat superior and negligent hiring claims by the Raleighs againstPerformance Plumbing for the accident Weese caused, but on different grounds asto the negligent hiring claim. The court of appeals ruling invalidated the Raleighs’negligent hiring award based on their failure to prove the causation element of thetort. Our holding focuses on the first element of the tort, the scope of theemployer’s legal duty based upon the job duties for which the employer hired theemployee.We hold that the tort of negligent hiring, when applicable under the circumstancesof a particular case, can operate to hold an employer liable for intentional ornegligent acts of an employee that are within or outside of the scope ofemployment. Under the facts of this case, however, the trial court should not havesubmitted the negligent hiring claim to the jury; having done so, it should havegranted judgment in favor of Performance Plumbing notwithstanding the verdict.The accident occurred after Weese had finished his work day. The scope ofPerformance Plumbing’s duty to the Raleighs under the tort of negligent hiring didnot extend to the Raleighs because the job for which it hired Weese did not includedriving to and from work.I.Performance Plumbing is in the business of installing underground and in-housewater and sewer plumbing at new residential construction sites in the Denvermetropolitan area. The company utilizes metal construction trailers it rents for thepurpose of storing tools, materials such as pipe, and equipment needed for jobs.The company expects its plumber employees to commute to a construction trailer,load up the items needed for the particular job they are assigned, and proceed tothe job site. At the end of the day, employees are required to return company toolsto a construction trailer and may store their own tools there. Unless assigned acompany vehicle, employees use their own vehicles to commute to and from work.The work day is from seven in the morning to three-thirty in the afternoon. Thework day typically starts when the employee reports to a construction trailer to pickup pipe and other materials needed for that day’s job. The employee thenproceeds to the job site. Work at the job site does not require frequent contact withmembers of the public. The employee typically ends the work day by returningcompany materials and tools to a construction trailer. When there is no need for anemployee to go from home to a construction trailer or from the job site back to aconstruction trailer, the work day may start or end at the job site.Whether employees drive a company vehicle or their own vehicle, PerformancePlumbing does not consider commuting from home to a construction trailer ordirectly from home to a job site, and back home from a construction trailer ordirectly from a job site, to be part of the work day. Employees are not

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]compensated for such commute time or reimbursed for mileage spent incommuting.As part of their employment, employees are expected to drive for the companyduring the work day for the purpose of getting job materials and company toolsfrom the construction trailers to job sites and back to construction trailers. Theemployer therefore requires a valid driver’s license as part of the applicationprocess, but it relies on the applicant’s truthfulness in stating whether or not he orshe holds a valid driver’s license. Performance Plumbing checks driving licensesand records only as required by its insurance company when it assigns anemployee one of the company vehicles to drive.In April of 1996, Performance Plumbing hired Weese as an apprentice plumber onthe recommendation of one of its employees who had known Weese since highschool. At the time Performance Plumbing hired him, Weese completed a standardemployment application that contained inquiries into the status of his driver’slicense and driving history. Weese stated that he had a valid license and nomoving violations, although his license was then under suspension. Nevertheless,at *1014 the time he applied for the job, he was eligible for reinstatement of hislicense upon providing proof of insurance.[3] Weese signed a standard releaseform, enabling Performance Plumbing to investigate the status of his driver’slicense, but, in accordance with the company’s practice, it conducted no furtherinvestigation when it hired him because it was not assigning him a company car todrive.1014The company employee who recommended Weese for employment knew that hehad a driving record that included moving violations and two accidents. He did notinform the company’s president, who hired Weese, about Weese’s driving record.Sometime after Weese was hired and proved himself to be a reliable worker,Performance Plumbing in early 1997 equipped Weese’s personal truck with a rackfor transporting pipe from construction trailers to work sites. As part of his workday, the company paid Weese for travel time between the construction trailers andjob sites, but it did not pay or reimburse Weese for the use of his vehicle.On September 15, 1997, after his work day had ended and he was driving home,Weese collided with two cars. He entered the right lane of a three lane road to getaround a large truck and be in position to make a right turn at the next majorintersection, which was approximately one-half mile away. The right lane wasbounded by a curb and gutter. Two cars were stopped within the right lane, andtheir drivers were outside the vehicles. The Raleighs owned both vehicles, one ofwhich was in tow behind the other. Standing between the cars, Carolyn Raleighand her son were adjusting a tow strap when Weese’s truck hit the back of thetowed vehicle, forcing it into the lead vehicle.Both of the Raleighs sustained severe injuries as a result of the accident. Seekingdamages against Performance Plumbing, the Raleighs asserted negligent hiringand respondeat superior claims against the company as employer of Weese.The court of appeals has had this case before it twice. On summary judgment, thetrial court initially dismissed both claims against Performance Plumbing. In the firstappeal, a division of the court of appeals held that genuine issues of material factas to both claims required a trial. Raleigh v. Performance Plumbing & Heating,Inc., No. 99CA1887, slip op. (Colo.App. Dec. 14, 2000) (not selected for officialpublication) (“Raleigh I”).

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]On remand, the trial court submitted both causes of action to the jury. Utilizing aspecial verdict form, the jury found against the Raleighs on the respondeatsuperior claim and for them on the negligent hiring claim; the jury did not find theRaleighs to be negligent in any regard. The trial court entered judgmentaccordingly. Both parties moved for judgment notwithstanding the verdict; the trialcourt denied both motions.[4]*1015 On appeal, the court of appeals held that Performance Plumbing had a dutywhen hiring Weese to inquire into his driving record and there was sufficientevidence in that record to support a duty of reasonable care in hiring a safe driverwho would not create an undue risk of harm to the public in performing hisemployment duties. Raleigh II, 109 P.3d at 981. The court of appeals alsodetermined that there was sufficient evidence for the jury to determine that thecompany breached its duty to the driving public in hiring Weese. However, as tothe tort element of causation, the court of appeals invalidated the jury’s negligenthiring award in light of its special verdict finding that Weese was not acting withinthe scope of his employment when the accident occurred.1015Accordingly, the court of appeals entered judgment against the Raleighs on boththe negligent hiring and respondeat superior claims. The Raleighs seekreinstatement of the jury’s verdict on the negligent hiring claim; they also reasserttheir respondeat superior claim despite the jury’s verdict against them. Weconclude as a matter of law that the Raleighs are not among the members of thepublic to whom Performance Plumbing owed a legal duty. Under the reasonablyforeseeable aspect of its negligent hiring duty of care, the company’s duty wouldextend only to those members of the public exposed to Weese’s unsafe driving inthe performance of his job duties.[5]II.We hold that the tort of negligent hiring, when applicable under the circumstancesof a particular case, can operate to hold an employer liable for intentional ornegligent acts of an employee that are either within or outside of the scope ofemployment. Under the facts of this case, however, the trial court should not havesubmitted the negligent hiring claim to the jury; having done so, it should havegranted judgment in favor of Performance Plumbing notwithstanding the verdict.The accident occurred after Weese had finished his work day. The scope ofPerformance Plumbing’s duty under the tort of negligent hiring did not extend tothe Raleighs because the job for which it hired Weese did not include driving toand from work.We also uphold the court of appeals’ judgment affirming the trial court’s judgmentagainst the Raleighs on the respondeat superior claim of negligence in light of theevidence and jury’s special verdict finding that Weese was not operating within thescope of his employment when the accident occurred.A.Standard of ReviewTo obtain submittal of a negligence claim to a jury, the plaintiff must establish aprima facie case demonstrating the following elements: (1) the existence of a legalduty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff was

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]injured; and (4) the defendant’s breach of duty caused the injury. Keller v. Koca,111 P.3d 445, 447 (Colo.2005); Ryder v. Mitchell, 54 P.3d 885, 889 (Colo.2002);see generally, Restatement (Second) of Torts § 281 (1965).Appropriately formulated and applied, tort principles adopted pursuant to thecommon law or legislative enactment are meant to deter and sanction conduct thatresults in victim injury and to remedy victim injury, in circumstances where thedefendant owes a duty of care, defendant breaches the duty, that breach is theproximate cause of the plaintiff’s injuries, and damages result. See, e.g., Bayer v.Crested Butte Mountain Resort, 960 P.2d 70, 80 (Colo.1998).Thus, the first question in any negligence case is whether the defendant owed alegal duty to protect the plaintiff from injury. Taco Bell, Inc. v. Lannon, 744 P.2d 43,46 (Colo.1987). Whether a specific defendant owes a duty to a specific plaintiffunder the circumstances involved with a tort claim is a question of law we reviewde novo. Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004); Ryder, *1016 54 P.3d at889; Martinez v. Lewis, 969 P.2d 213, 218 (Colo.1998).1016Negligent hiring cases are complex because they involve the employer’sresponsibility for the dangerous propensities of the employee, which were knownor should have been known by the employer at the time of hiring, gauged inrelation to the duties of the job for which the employer hires the employee. Theemployee’s later intentional or non-intentional tort is the predicate for the plaintiff’saction against the employer, so proof in the case involves both the employer’s andthe employee’s tortious conduct.The lesson to be learned from a successful negligent hiring suit is that theemployer should not have hired the employee in light of that person’s dangerouspropensities or, having hired him or her, must exercise that degree of control overthe employee necessary to avert that employee from injuring persons to whom theemployer owed the duty of care when making the hiring decision. But, “[a]negligence claim against an employer will fail if it is based on circumstances inwhich the employer owed no duty of care.” John R. Paddock, Jr., ColoradoEmployment Law and Practice, § 14.21, at 913 (2005).We conclude in the case before us that the court of appeals erred in its ruling thatthe causation element of the tort of negligent hiring came into play to bar the jury’saward on the Raleighs’ cause of action. The court of appeals utilized the jury’sspecial verdict finding that Weese was not acting within the scope of hisemployment when he caused the accident. However, conduct of the employeeoutside of his or her employment can nonetheless be actionable as a breach of theemployer’s duty of care in a negligent hiring case, if the employer owed a duty ofcare to plaintiff when making the hiring decision.Accordingly, we focus in this case on whether Performance Plumbing owed a dutyof care to the Raleighs in the first instance. Analyzing the scope of the company’sduty, we conclude that the Raleighs are not among those persons to whom it oweda duty of care in hiring Weese.B.Tort of Negligent HiringIn 1992, we joined the majority of states in formally recognizing the tort ofnegligent hiring. Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1321

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM](Colo.1992). Connes focused on the duty element of the tort. We posited thescope of the employer’s legal duty upon the employer’s actual knowledge at thetime of hiring or reason to believe that the person being hired, by reason of someattribute of character or prior conduct, would create an undue risk of harm incarrying out his or her employment responsibilities.[6] We observed thatforeseeability of harm to the plaintiff is a prime factor in the duty analysis. A courtshould also weigh other factors, including the social utility of the defendant’sconduct, the magnitude of the burden of guarding against the harm caused to theplaintiff, the practical consequences of placing such a burden on the defendant,and any additional elements disclosed by the particular circumstances of the case.Id. at 1320. No one factor is controlling; the question whether a duty should beimposed in a particular case is essentially one of fairness under contemporarystandards — whether reasonable persons would recognize a duty and agree that itexists. Id.When the duties of the job will bring the employee into frequent contact withmembers *1017 of the public, or will involve close contact with particular individualsas a result of a special relationship between such persons and the employer, somecourts have expanded the employer’s duty and have required the employer to gobeyond the job application and make an independent inquiry into the applicant’sbackground; but, when the employment calls for incidental contact between theemployee and other persons, there may be no reason for an employer to conductany investigation of the applicant’s background beyond obtaining past employmentinformation and personal data during the application process. Id. at 1321.1017The employer’s duty to members of the public in both negligent hiring andnegligent supervision cases stems from the principle that the employer receivesbenefits from having customers and business invitees and incurs responsibilities tothem. Louis Buddy Yosha & Lance D. Cline, Negligent Hiring and Retention of anEmployee, 29 Am.Jur. Trials 267, § 2 (2005). The Restatement (Second) ofAgency addresses the tort of negligent hiring as follows:A person conducting an activity through servants or other agents issubject to liability for harm resulting from his conduct if he is negligentor reckless:. . . .(b) in the employment of improper persons or instrumentalities in workinvolving risks of harm to others.Restatement (Second) of Agency § 213 at 458.The comment to this portion of the Restatement reveals that liability is predicatedon the employer’s reason to believe at the time of hiring that undue risk of harmwould exist from employing that person.Liability results under the rule stated in this Section, not because of therelation of the parties, but because the employer antecedently hadreason to believe that an undue risk of harm would exist because ofthe employment.Id., cmt. d at 460 (emphasis added).The key word in this formulation, “antecedently,” refers to the time of hiring. Inexplaining the nature of the employer’s duty at the time of hiring, we havereiterated that the scope of the employer’s duty in exercising reasonable care in a

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]hiring decision depends on the employee’s anticipated degree of contact with otherpersons in carrying out the job for which the employee was hired. Moses v.Diocese of Colo., 863 P.2d 310, 328 (Colo.1993); Van Osdol v. Vogt, 908 P.2d1122, 1132-33 n. 17 (Colo.1996); Bear Valley Church of Christ v. De Bose, 928P.2d 1315, 1323-24 (Colo.1996). See also Keller v. Koca, 111 P.3d 445, 448-49(Colo.2005) (holding that, to establish a duty of care towards the plaintiff in anegligent supervision case, evidence must show that the employee’s acts areconnected with the employment in time and place such that the employer wouldhave reasonably foreseen the harm).The job for which the defendant was hired in Connes consisted primarily ofcommercial vehicle driving. We recognized that employers of commercial drivershave a duty to investigate an applicant’s driving record, in addition to what he orshe provides in response to application questions or an employment interview.But, we cautioned in Connes that the tort of negligent hiring does not function asan insurance policy for all persons injured by persons an employer hires. Connes,831 P.2d at 1321.When driving is involved in performance of the job responsibilities, the duty is “touse reasonable care in hiring a safe driver who would not create a danger to thepublic in carrying out the duties of the job.” Id. at 1323 (emphasis added).C.Application to This CaseThe Raleighs claim that Performance Plumbing owed a duty of care to thembecause Weese possessed a dangerous propensity in that he was a dangerousdriver; had Performance Plumbing conducted a further investigation into his drivingrecord, it would have discovered that Weese’s license was under suspension andhe had a record of moving violations and automobile accidents, despite his falsestatements in answer to the employment application questions. They contend thatWeese was expected to drive as *1018 part of his employment, and they put muchemphasis on the benefit the employer obtained by outfitting his private vehicle witha pipe rack.1018We agree with the Raleighs that Weese was expected to drive as part of hisemployment, but only as part of his work day from construction trailers to job sitesand back from the job site to construction trailers.[7] The job required employees tocommute to and from work on their own time. In this regard, this company is nodifferent from any of a large number of Colorado employers who expect theiremployees to get to work on their own time and in their own way, and do notassume liability as part of their hiring decision to act as a surety for automobileaccidents their employees may cause when commuting to and from work.Whether Performance Plumbing owed a duty of care to the Raleighs boils down towhether reasonable persons would recognize and agree that a duty exists.Connes, 831 P.2d at 1320. The scope of the employer’s duty of care in making thehiring decision extends to persons the employer should have reasonably foreseenthe employee — who possesses the dangerous propensity the employer knew of,or reasonably should have known of — would come into contact with through theemployment. See Paddock, supra § 14.22, at 915 (stating that “[a]n employer isfound liable for negligent hiring if, at the time of hiring, the employer knew or hadreason to believe that hiring the person would create an undue risk of harm to the

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]people with whom the employee would likely have contact in performing customaryjob duties.”); see also DiCosala v. Kay, 91 N.J. 159, 177, 450 A.2d 508, 518(1982) (in regard to a duty owed by the employer to the plaintiff to exercisereasonable care in the selection and retention of the employee, stating that “thequestion presented is whether the employer, knowing of its employee’s unfitness,incompetence or dangerous attributes when it hired or retained its employee,should have reasonably foreseen the likelihood that the employee through hisemployment would come into contact with members of the public, such as theplaintiff, under circumstances that would create a risk of danger to such personsbecause of the employee’s qualities.”).Thus, the case before us could have presented a jury question on the negligenthiring claim had the accident occurred when Weese was driving to a job site froma construction trailer or from a job site to a construction trailer as part of hiswork.[8] But, our research has not disclosed any case that extends employernegligent hiring liability to off-duty driving of the type citizens undertake normally toget to and from their jobs. There is precedent that cautions courts againstextending the tort of negligent hiring to off-duty commute accidents.Otherwise, any employer who fails to check the license status ofemployees, and who knows that it is necessary that employees driveto and from work, could be considered to have brought the employeeinto contact with the third person via the vehicular collision, and couldface potential liability for negligent hiring and retention as to injuriesoccurring from such a collision.Hare v. Cole, 25 S.W.3d 617, 621-22 (Mo. App.2000). The Missouri court’sanalysis observes that the “employer must have played a role in bringing theoffending employee into contact with the party who is thereby injured.” Id. at 621.We agree, and we make the further observation that this is properly part of thescope-of-the-employer’s-duty analysis — however it might also play into acausation analysis — because the duty *1019 of reasonable care in hiring theemployee appropriately focuses on the job duties for which the employee is beinghired in relation to persons the employer would reasonably foresee the employeecoming into contact with through the employment.1019In Keller, we refused to extend liability to the employer for the employee’s sexualassault of a young girl at the employer’s place of business while it was closed. Theemployer’s duty and liability for undue risk of harm posed by hiring the employeemust be related to “those with whom the employee came in contact in executinghis employment responsibilities.” 111 P.3d at 448.In considering whether the employer in hiring the employee owed a legal duty topersons in plaintiff’s circumstances, Connes states we should consider the socialutility of defendant’s business, the burden of imposing liability on the employer,and whether the employment would bring the employee into frequent or onlyinfrequent contact with members of the public. 831 P.2d at 1320-21. PerformancePlumbing’s business has the social utility of providing residents of new houses withadequate plumbing. Plumbers hired to work at the company’s job sites were notexpected to have frequent contact with members of the public at those sites, butthe employer could have reasonably foreseen they would have contact withmembers of the driving public on the job driving in route from construction trailersto job sites and back to construction trailers.Weese caused the accident when he was commuting from his job on his wayhome from work. We recognize that the Raleighs suffered serious injuries for

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]analyzed, the commuting accident before us is an exception to the general rule,and the jury’s verdict on negligent hiring should be sustained.In most cases, the means by which an employer commutes, how he or she arrivesat or leaves the workplace, are immaterial to the employer. The employer does notcontrol the employee’s means of travel and does not benefit if the employee usesa particular means of travel.However, there are exceptions to the general notion that an employer is not liablefor accidents occurring during an employee’s daily commute. If there is evidencethat the employer has negligently hired an employee who is an unsafe driver andthe employer controls or benefits from the employee’s commuting by driving, thenthe case should be submitted to the finder of fact to determine whether theemployer’s negligence in hiring the employee caused injuries to a third party.There is evidence in the record now before us that Performance benefitedfinancially from Weese’s daily use of his truck for commuting. Performanceoutfitted Weese’s truck to its specifications, and required him to drive that truck towork so that he could use it to transport pipe on the job. Given the evidence thatPerformance (1) knew Weese was an unsafe driver, and (2) intended Weese tocommute in his truck and also benefited from his commuting by truck, thecausation issue was properly submitted to the jury. I would uphold the jury verdictfinding the employee, Cory Weese, 70 percent liable and the employer,Performance Plumbing, 30 percent liable for the damages suffered by theRaleighs.When an employer hires an employee, and places the employee in a position thatposes a risk of harm to others, it is incumbent upon the employer to conduct aninquiry into the employee’s background to determine the employee’s fitness for theduties involved. See Restatement (Second) of Agency § 213 cmt. d (1958) (“Theprincipal may be negligent because he has reason to know that the servant orother agent, because of his qualities, is likely to harm others in view of the work orinstrumentalities entrusted to him.”) (emphasis added).As the majority acknowledges, Performance hired Weese to be an apprenticeplumber, and his duties required a substantial amount of driving every daybetween construction trailers and various work sites. Maj. op. at 1013. AlthoughPerformance owed a duty to the motoring public to ensure that Weese was a safedriver, it did not do so. The majority discusses Weese’s poor driving record andnotes that, when he was hired, Weese did not have a valid driver’s license and didnot have the statutorily required liability insurance for his truck. Maj. op. at 1014 n.3. Performance’s foreman testified that he knew about Weese’s driving history andhis lack of a valid license and insurance when Weese was hired. Under the juryinstructions, the foreman’s knowledge was attributable to the company. Thus,Performance acted not merely negligently, but with actual knowledge when it hiredan unsafe driver for a position requiring substantial driving.The fact that Weese commuted to work in his truck directly benefited Performancebecause it equipped the truck for use on Performance’s job sites. Moreover,Performance knew at the time it hired Weese that he was likely to drive acompany-equipped truck. The owner of Performance testified that his companyroutinely installed pipe racks on vehicles belonging to workers who proved to bereliable. According to his testimony, a reliable employee was one who came towork every day with the specially outfitted truck. It appears the company’s mainconcern with employee reliability was that the employee not abscond with itsequipment.

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]On cross examination, the owner admitted that Weese’s truck was equippedidentically to the company vehicles issued to foremen *1021 and supervisors. Theevidence showed that, at the time of the accident, there were two company ownedtrucks at Weese’s job site, and neither was available to him. One was assigned tothe foreman and one was assigned to a higher level supervisor.1021The majority asserts that Performance’s contention, that travel to and from workwas “[not] part of the work day,” was sufficient in and of itself to exclude thepossibility that affixing the pipe rack onto Weese’s truck converted this travel to abenefit for the employer. Maj. op. at 1013. The majority’s reasoning is notconsistent with the record and I do not find it persuasive.Weese was hired by Performance as an apprentice plumber, having had no priorexperience as a plumber. The pipe rack installed on his truck by Performance is aspecialized piece of equipment designed for safely transporting pipe from oneplace to another. Other than using the rack while working for Performance, theequipment had no apparent value for Weese.By contrast, Weese’s truck, as modified, had considerable value for Performance.Use of Weese’s truck enabled the company to avoid the expense of buying orleasing and insuring a suitably equipped company vehicle for use by its employee.Certainly, a jury could conclude from the evidence that there was a financialbenefit to Performance if Weese commuted in his truck. In the workers’compensation context, similar facts would bring the worker within the coverage ofthe act for injuries incurred during the worker’s commute. See Electric Mut. Liab.Ins. Co. v. Indus. Comm’n, 154 Colo. 491, 495, 391 P.2d 677, 679 (1964) (holdingin workers’ compensation case that when employee uses his own car to performservices for his employer, employee remains in the course of his employment untilhe returns home).The majority views this issue as a question of duty for the court to decide ratherthan a question of causation for the jury to decide. In my opinion, the majority’sanalysis is focused on the wrong element of the tort of negligent hiring.Application of the majority’s duty analysis results in a curious anomaly.Performance owes a duty of care to the motoring public (which presumably wouldinclude the Raleighs) to hire employees who are safe drivers because theemployees are expected to drive during the work day. If this accident hadhappened during Weese’s shift, the majority would hold Performance liable to theRaleighs. But the majority concludes that Performance owed no duty to theRaleighs in this case because the accident occurred after work hours.The majority’s analysis creates a kind of “blinking light” of duty that is arbitrary inpractice and not helpful to the future development of the law. It seems to me thatthe answer to this analytical confusion is to address the commuting issue as aquestion of causation.The causation element in a tort action functions as a natural limitation of liability.As the Draft Restatement of the Law of Torts explains:There are two primary legal doctrines for limiting liability: duty andscope of liability [otherwise referred to as proximate cause]. . . . Duty isa question of law for the court . . . while scope of liability . . . is treatedas a question of fact for the factfinder. Hence, duty is a preferablemeans for addressing limits on liability when those limitations areclear, are based on relatively bright lines, are of general application,

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]do not usually require resort to disputed facts in a case, implicatepolicy concerns that apply to a class of cases that may not be fullyappreciated by a jury deciding a specific case, and are employed incases in which early resolution of liability is particularly desirable. . . .On the other hand, when the limits imposed require careful attention tothe specific facts of a case, and difficult, often amorphous evaluativejudgments for which modest differences in the factual circumstancesmay change the outcome, scope of liability [or proximate cause] is amore flexible and preferable device for placing limits on liability.Restatement (Third) of Torts § 29 cmt. f (Proposed Final Draft No. 1, 2005).*1022 Causation is the element that limits liability generally because “[t]ort law doesnot impose liability on an actor for all harm factually caused by the actor’s tortiousconduct.” Id. § 29 cmt. d. As explained in the draft Restatement of Torts, “[a]nactor’s liability is limited to those physical harms that result from the risks thatmade the actor’s conduct tortious.” Id. In order to limit the liability of an actor, or inthis case, an employer, the Restatement observes that1022an actor should be held liable only for harm that was among thepotential harms — the risks — that made the actor’s conduct tortious.The term `scope of liability’ is employed to distinguish those harms thatfall within this standard and, thus, for which the defendant is subject toliability, and on the other hand, those harms for which the defendant isnot liable.Id. Applying this rule requires consideration of both “the risks that made the actor’sconduct tortious,” and “whether the harm for which recovery is sought was a resultof any of those risks.” Id. Whether having an employee commute to work in aspecially equipped vehicle each day is “among the potential harms — the risks”that make Performance’s failure to verify Weese’s driving record a cause of theRaleighs’ injuries, is a question best left to the jury.The majority cites only one case, Hare v. Cole, 25 S.W.3d 617 (Mo.App.2000),involving an employer’s liability for an employee’s commuting accident. Maj. op. at1018. Hare does not support the majority’s decision to rely upon an analysis ofduty; rather, that case turned on an analysis of causation. The Hare court rejectedthe employer’s suggestion that it find employers have no duty as a matter of law”to check the license status or driving record of applicants for driving positions.” 25S.W.3d at 621. I view Hare as consistent with my understanding that causation,not duty, is the way to analyze and impose appropriate limitations on anemployer’s liability for its employee’s acts in an off-duty driving case.A similar causation analysis was employed by a federal court applying Texas lawin a negligent hiring case where an employee-driver rear-ended a pick-up, killingthe driver and severely injuring the passenger. McDorman ex rel Connelly v.Texas-Cola Leasing Co., 288 F.Supp.2d 796 (N.D.Tex. 2003). The court held that,while the employer owed the plaintiffs a duty, the employer’s hiring of the driverwas not the proximate cause of the plaintiffs’ injuries because “it was notforeseeable that someone with [the driver’s] background would be involved in thisaccident.” Id. at 805. The driver’s motor vehicle record revealed that he had asuspended license for failure to pay child support, and a seat belt violation. In thecourt’s opinion, the driver’s citations “were not of the type that a reasonable mindcould have anticipated the harm that occurred, a traffic accident.” Id. at 806. I notethat in the present case, the majority agrees that Weese’s driving record showedhe was an unsafe driver.

Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006 – Google Scholarhttps://scholar.google.com/…lar_case?case=9313980568918247131&q=Raleigh+v.+Performance+Plumbing+and+Heating,+130+P.3d+1011+(Colo.+2006)&hl=en&as_sdt=2006[11/3/2018 9:16:01 AM]I am concerned that the majority’s reliance on duty will have the effect offoreclosing employer liability in all off-duty commuting cases even though themajority does not intend that result. The Georgia appellate court took a similar dutyapproach limiting employer liability for off-duty driving accidents. The result hasbeen that, in Georgia, an employer is not liable to a third party injured by anemployee in an off-duty accident even if the employee is driving a vehiclefurnished by the employer. In Georgia, the tortious act must occur “during thetortfeasor’s working hours.” Lear Siegler, Inc. v. Stegall, 184 Ga.App. 27, 360S.E.2d 619, 620 (1987); see also TGM Ashley Lakes, Inc. v. Jennings, 264Ga.App. 456, 590 S.E.2d 807, 815 (2003) (“an employee’s regular commute is notconsidered to be under color of employment, and therefore, the cause of action[for negligent hiring] does not extend to torts committed on members of the publicduring an employee’s commute.”). The employer in Lear Siegler was found to oweno duty to the driving public even though the record revealed that the employee’sduties included driving, the employee had a prior conviction for driving under theinfluence of alcohol, and the employee caused a traffic accident during his earlymorning commute in the employer-provided vehicle while intoxicated. *1023 Surelythat is not an approach that the majority would condone.1023Like the majority, I have no wish to extend negligent hiring liability to all employersfor all employees who cause accidents when commuting between work and home.Maj. op. at 1018. Under my approach, only an employer who, as a direct result ofthe hiring, places an employee in a position to inflict harm on third parties will beliable. A jury is competent to weigh the evidence and determine whether theemployer’s negligence caused injury to a third party.Accordingly, I respectfully dissent. I would reverse the court of appeals andreinstate the jury’s verdict holding Performance liable to the Raleighs.[*] Chief Justice MULLARKEY would grant the Petition.[1] The issues we took on review are:1) Whether the court of appeals improperly restricted the tort of negligent hiring when it ruled that anemployer cannot be directly liable for negligent hiring if the employee acts outside the “scope ofemployment,” a requirement for finding an employer vicariously liable under the separate doctrine ofrespondeat superior?2) Whether an employee is within the scope of employment while driving his truck home from workwhen his employer requires him to bring his personal truck back and forth between home and work foruse on the job each day?[2] Although the husband filed claims against Performance Plumbing for negligence and loss ofconsortium, this opinion focuses on the negligent hiring and respondeat superior claims by the motherand son.[3] Weese’s driving record includes a 1990 careless driving conviction involving an accident; a 1991conviction for violation of a red light signal; a 1991 defective vehicle conviction; a 1992 careless drivingconviction involving an accident, and driving without insurance. As a result of accumulated points, hislicense was suspended until August 13, 1992. Prior to reinstatement, he drove without a valid licenseand reinstatement was deferred for one year, until August 12, 1993. His license was reinstated onNovember 4, 1993. In April, 1995, Weese received a ticket for speeding 1-4 miles per hour over thelimit. In November 1995, he was convicted of failure to signal for a turn and did not have liabilityinsurance. As a result, his license was suspended until January 17, 1996. At the time PerformancePlumbing hired him, he was eligible for license reinstatement upon providing proof of insurancecoverage and paying a reinstatement fee, but he did not proceed to obtain insurance and have hislicense reinstated.[4] The trial court ordered the following judgment against Performance Plumbing on the Raleighs’negligent hiring claims: judgment in favor of Carolyn A. Raleigh in the amount of $1,187,319 plus

Collepals.com Plagiarism Free Papers

Are you looking for custom essay writing service or even dissertation writing services? Just request for our write my paper service, and we'll match you with the best essay writer in your subject! With an exceptional team of professional academic experts in a wide range of subjects, we can guarantee you an unrivaled quality of custom-written papers.

Get ZERO PLAGIARISM, HUMAN WRITTEN ESSAYS

Why Hire Collepals.com writers to do your paper?

Quality- We are experienced and have access to ample research materials.

We write plagiarism Free Content

Confidential- We never share or sell your personal information to third parties.

Support-Chat with us today! We are always waiting to answer all your questions.

Identify and discuss the legal elements of negligent hiring.

Related Posts

Unit 2: Common Assessment/Project Part A Start Assignment

Person-Centered and Experiential Therapy

Read the Instructions for the Population Health Assessment & Prevention ?Download Instructions for the Population Health Assessment & Prevention