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DO MY DISCUSSION:
Read Malorney v. B&L Motor Freight, Inc. in Section 21.2 of your textbook. Discuss what duty or duties a business has with regard to checking the background of potential employees before hiring. Do you agree that businesses should be liable for injuries resulting from negligent hiring? Why, or why not?
Guided Response: Respond to at least two of your fellow students’ posts in a substantive manner.
Agree or disagree with your classmate’s position. Defend your position by using information from the week’s readings or examples from current events.
REPLY TO BRITTANY:
Discuss what duty or duties a business has with regard to checking the background of potential employees before hiring.
Employers should avoid claims of negligent hiring by continuously performing background checks. One should be completed as a hiring practice and various checks should continue during employment. Along with the background checks, employers should verify information on resumes and check references. If the job consists of driving then the employer should check driving records as well. Doing so, will lower the risk of potential injuries while on the job. Employers should be extremely cautious with their hiring practice if the job involves a lot of public contact. Once a business has learned about a person’s criminal background then they should immediately discharge that individual. This will also show that the employer was not careless during the hiring process and would avoid any claims of negligent hiring.
Do you agree that businesses should be liable for injuries resulting from negligent hiring?
I do agree that businesses should be liable for injuries resulting from negligent hiring. If a person has a background history of being a sex offender and they hire that person to work directly with children and unsupervised then they are aiding in the potential harm of that child. They made it easily accessible for the sex offender to reach their prey. If something was to happen while the employee was on the clock, then the employer should be held liable for the negligent acts of the employee. Referencing the Malorney v. B&L Motor Freight, Inc. Case, B&L should be liable for hiring a person who they should have realized was unfit for the job once they performed a background check. “The existence of a legal duty is not dependent on foreseeability alone, but includes considerations of public policy and social requirements” (Seaquist, 2012, p. 21.2). A background check on the employee would have displayed that he was fired from a previous truck company and had a history of sex-related convictions with hitchhikers. The employer performed careless hiring practices and pretty much handed the employee the tools to commit this crime. Unfortunately, the employee had the intentions on committing this crime and acted on his own. The employer did not make Edward Harbour commit the crime however, they unintentionally supported his negligent act. Therefore, the business should be liable for injuries resulting from negligent hiring.
Reference
Seaquist, G. (2012). Business Law for Managers. Bridgepoint Education, Inc.
REPLY TO SARAH:
I have very mixed feelings about this case. As I do believe first and foremost, as a business, one should always preform background checks on potential employees. This not only protects the company, but also its current employees. Knowing that everyone who comes to work for company A, goes through a background check, can give more piece of mind to everyone in the company. It is easy to check a box on an application stating you have never been convicted of a felony, therefore it becomes up to the company to verify the information is correct or not. In this case, B&L felt that the negative check on Harbour’s vehicular records was well enough to move forward with hiring him without any additional verifications. In the case of Malorney v. B&L Motor Fright, Inc., the courts did conclude that B&L had a duty to check Harbour’s criminal background and certified the issue for interlocutory appeal (Seaquist, 2012, pg. 21.2). B&L goes on to argue that they had no duty to investigate Harbour’s denial. The texts states that “the existence of a legal duty is not dependent on foreseeability alone, but includes considerations of public policy and social requirements” (Seaquist, 2012, pg. 21.2). When a company provides a truck or any vehicle for their employee to use in order to complete their job duties, I do believe more extensive checks should be conducted, as now that person is on our roads and possibly putting other people’s lives in danger. The fact that B&L knew truck drivers are prone to stopping and picking up hitchhikers, that they included it in there hiring contract shows that they can potentially foresee their employees doing just this, as it is common for them to do so. In today’s technology world, background checks are accessible by computers and can take a short amount of time to received and now are fairly inexpensive, this being sad, to me, there is no reason a company shouldn’t take those additional steps of verification to protect themselves.
In 2006, a good friend of mine was hit and killed by a drunk driver. The driver was an illegal immigrant with prior DUI convictions and was recently hired by a construction company who provided him with a company vehicle. As a result, the company was found liable and settled in court to pay a sum amount of money to my friend’s family. Marshall (2007), stated that, “the company knew or should have known Perez’s immigration status and driving record and had a duty to “make a reasonable effort to confirm” that Perez was licensed and qualified to drive in California”. Whenever a company is putting their employer in trust of things such as a truck, that can cause harm or injuries to others, there should be regulations/laws on verifying background checks and if not probably done, they should also be held liable for injuries resulting from negligent hiring.
Seaquist, G. (2012). Business law for managers. Retrieved from https://content.ashford.edu/
Writer, S. M. (2007, May 4). Employer of driver in fatal Ramona crash agrees to resolve lawsuit. Retrieved December 20, 2017, from
http://www.sandiegouniontribune.com/sdut-employer-of-driver-in-fatal-ramona-crash-agrees-2007may04-story.html (Links to an external site.)
Cases to Consider: Malorney v. B&L Motor Freight, Inc.
Malorney v. B&L Motor Freight, Inc., 146 Ill. App.3d 265, 496 N.E.2d 1086 (1986)
Edward Harbour applied for a position of over-the-road driver with defendant B&L. On the employment application, Harbour was questioned as to whether he had any vehicular offenses or other criminal convictions. His response to the vehicular question was verified by B&L; however, his negative answer regarding criminal convictions was not verified by B&L. In fact, Harbour had a history of convictions for violent sex-related crimes and had been arrested the year prior to his employment with B&L for aggravated sodomy of two teenage hitchhikers while driving an over-the-road truck for another employer. Upon being hired by B&L, Harbour was given written instructions and regulations, including a prohibition against picking up hitchhikers in a B&L truck.
Subsequently, on January 24, 1978, at an Indiana toll-road plaza, Harbour picked up plaintiff Karen Malorney, a 17-year-old hitchhiker. In the sleeping compartment of his truck, he repeatedly raped and sexually assaulted plaintiff, threatened to kill her, and viciously beat her. After being released, plaintiff notified police. Harbour was arrested, convicted, and sentenced to 50 years with no parole.
Plaintiff’s complaint charges defendant B&L with recklessness and willful and wanton misconduct in negligently hiring Harbour as an over-the-road driver without adequately checking his background and providing him a vehicle with a sleeping compartment. Plaintiff seeks compensatory and punitive damages from B&L.
Defendant B&L filed a motion for summary judgment contending that it had no duty to verify Harbour’s negative response to the question regarding criminal convictions. In denying defendant’s motion, the trial court found that (1) Harbour was hired as an over-the-road driver and furnished with a truck equipped with sleeping quarters; (2) B&L instructed Harbour not to pick up hitchhikers; and (3) it is common knowledge that hitchhikers frequent toll plazas which would show that B&L knew drivers are prone to give rides to hitchhikers. The court concluded that these facts show that B&L had a duty to check Harbour’s criminal background and certified the issue for interlocutory appeal.
Defendant argues that it had no duty to investigate Harbour’s nonvehicular criminal background nor to verify his denial thereof because of a lack of foreseeability that he would use the truck to pick up and sexually assault a hitchhiker. To impose such a duty would be against public policy by placing too great a burden on employers. On the other hand, plaintiff posits the argument that factual issues exist which preclude summary judgment and require a jury determination. We agree and must affirm the trial court for the following reasons. Defendant correctly argues that the existence of a duty is a question of law to be determined by the court, rather than by the factfinder. However, once a duty has been found, the question of whether the duty was properly performed is a fact question to be decided by the trier of fact, whether court or jury.
The existence of a legal duty is not dependent on foreseeability alone, but includes considerations of public policy and social requirements. In Illinois, two duties, among others not pertinent here, are imposed by law on owners of vehicles who permit or hire other persons to drive on our highways. The first duty requires that the degree of care which an owner should exercise in selecting a driver is that which a reasonable person would exercise under the circumstances. An owner or employer also owes a duty in connection with the entrustment of vehicles to others. In other words, a vehicle owner has a duty to deny the entrustment of a vehicle to a driver it knows, or by the exercise of reasonable diligence could have known, is incompetent. In addition to these duties, it is well settled in Illinois that a cause of action exists against an employer for negligently hiring a person the employer knew, or should have known, was unfit for the job.
B&L contends that a reasonable and prudent motor carrier could not foresee that one of its drivers would rape and assault a hitchhiker. The court in Neering v. Illinois Central R.R. Co. in discussing foreseeability stated that the ultimate injury must be the natural and probable result of the negligent act or omission such that an ordinary and prudent person ought to have foreseen as likely its occurrence as a result of the negligence. It is not essential that one should have foreseen the precise injury which resulted from the act or omission. This interpretation thus requires an employer to exercise that degree of care reasonably commensurate with the perils and hazards likely to be encountered in the performance of an employee’s duty, i.e., such care as a reasonably prudent person would exercise in view of the consequences that might reasonably be expected to result if an incompetent, careless, or reckless agent were employed for a particular duty.
Applying these principles to the present case, it is clear that B&L had a duty to entrust its truck to a competent employee fit to drive an over-the-road truck equipped with a sleeping compartment. Lack of forethought may exist where one remains in voluntary ignorance of facts concerning the danger in a particular act or instrumentality, where a reasonably prudent person would become advised, on the theory that such ignorance is the equivalent of negligence. Bearing in mind the facts that B&L gave Harbour an over-the-road vehicle with a sleeping compartment and that B&L probably knew, or should have known, that truckers are prone to give rides to hitchhikers despite 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 be entrusted with a B&L over-the-road truck.
Regarding defendant’s public-policy argument, there is no evidence in the record to justify the contention that the cost of checking on the criminal history of all truck-driver applicants is too expensive and burdensome when measured against the potential utility of doing so. Finally, we note that a question of foreseeability is at times a question for the court and at times, if varying inferences are possible, a question for the jury. In the present case, B&L did have a duty to check into Harbour’s background so as to ascertain whether he would be a fit employee. Based on the circumstances of this case, it is apparent that reasonable persons could arrive at different conclusions as to whether B&L used due care in the performance of this duty when it employed Harbour. Questions which are composed of such qualities sufficient to cause reasonable persons to arrive at different results should never be determined as matters of law. Questions of negligence, due care, and proximate cause are questions of fact to be determined by the factfinder.
In affirming the trial court’s denial of summary judgment, we are not expressing any opinion as to the resolution of the facts in this case. Plaintiff has the heavy burden of proving that defendant B&L negligently performed a duty it owed her in entrusting Harbour with an over-the-road truck, and if negligence is found, that it proximately caused her injury. These questions, including the issue of whether defendant negligently hired Harbour by not checking his criminal background, are questions for the trier of fact and become a question of law only when the ultimate facts have been determined by the factfinder.
