Opinion
Review Granted March 14, 1991.
Previously published at 226 Cal.App.3d 551, 233 Cal.App.3d 171
Mike Ewing and Bronson, Bronson & McKinnon, Lakeport, for plaintiff and appellant.
Steven R. Enochian, Sandra L. Johnson and Moss & Enochian, Redding, for defendant and respondent.
DAVIS, Associate Justice.
INTRODUCTION
Following a request at a Rotary Club luncheon by the director of a state-licensed residential treatment center known as Stepping Stones, defendant Dennis Patterson agreed to hire Stepping Stones juvenile residents at his business, The Laundromat. Among those hired to work at The Laundromat was Daniel Durrett. Durrett was placed at Stepping Stones by San Diego County while on probation following a burglary. He had also been charged with molesting a four or five-year-old girl. On January 22, 1986, while working at The Laundromat, Durrett severely beat plaintiff Denise Nigg in the head and face with his fists and a hammer.
There is a factual dispute whether Durrett was on probation at the time of the attack, which occurred approximately eight months after his arrival at Stepping Stones.
"Such [nondelegable] duties include those imposed by a public authority as a condition of granting a franchise [citations]; the duty of a condemning agent to protect a severed parcel from damage [citations]; the duty of a general contractor to construct a building safely [citation]; the duty to exercise due care when an '... independent contractor is employed to do work which the employer should recognize as necessarily creating a condition involving an unreasonable risk of bodily harm to others unless special precautions are taken' [citations]; the duty of landowners to maintain their property in a reasonably safe condition [citations] and to comply with applicable safety ordinances [citations]; and the duty of employers and suppliers to comply with the safety provisions of the Labor Code [citations]." ( Maloney v. Rath, supra, 69 Cal.2d at p. 447, 71 Cal.Rptr. 897, 445 P.2d 513.)
Nigg sued Patterson for negligently hiring Durett. Defendant's motion for summary judgment was granted based on the trial court's belief that the principles in Cardenas v. Eggleston Youth Center (1987) 193 Cal.App.3d 331, 238 Cal.Rptr. 251, applied. Cardenas held that a state-licensed group home provider owed no duty of care to members of the general community for the criminal conduct of its residents. The issue before us is whether an employer's common law duty to hire competent, nonvicious employees applies where an employee is hired pursuant to an agreement with a private rehabilitative service or whether public policy concerns for fostering "innovative release and rehabilitation programs for criminal offenders" mandate that no such duty be imposed.
We reverse. An employer's duty to select competent employees is not abrogated because employees are hired in connection with a job program operated by a private rehabilitative center. Whether defendant fulfilled his duty by relying on the screening procedures of the private rehabilitative agency is a question of fact for the jury. Sufficient evidence of negligent hiring and foreseeability of harm was presented to defeat defendant's motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
By Second Amended Complaint, plaintiff sued Dennis Patterson, individually and doing business as The Laundromat, and Daniel Durrett for personal injuries. Plaintiff alleged that Patterson entered into an arrangement with Stepping Stones to hire juvenile criminal offenders who resided at Stepping Stones and that Durrett had a "history and propensity for heavy drug use, extreme violence, and bizarre sexual attacks." It further alleged that Patterson either knew Durrett was incompetent to work at The Laundromat at night or negligently failed to exercise ordinary care in investigating Durrett's background to learn of his vicious disposition.
The only defendant involved in this appeal is Dennis Patterson, individually and doing business as The Laundromat. Plaintiff's original and amended complaint named various individuals and entities connected with Stepping Stones; the Counties of San Diego and Shasta; the State of California; and the Shasta Unified School District. It alleged that Durrett was under the management and control of the County of San Diego which had negligently failed to advise the other defendants of Durrett's dangerous propensities. Dismissals without prejudice were entered as to Shasta Unified School District; and County of Shasta. A good faith settlement between plaintiff and the Stepping Stones defendants was confirmed by the court. Durrett was dismissed without prejudice.
Defendant moved for summary judgment on the grounds that respondeat superior was inapplicable to the facts of the case and that defendant owed plaintiff no duty of care. In support of his motion, defendant submitted excerpts from his own deposition as well as from those of Daniel Durrett, Stepping Stones' director Neal These excerpts revealed that the purpose of Stepping Stones is to provide independent living skills to youngsters who will soon be released back to the community. Sternberg had requested members of the Rotary Club to provide positions for their residents "so they don't [sic] be a burden on the state or on themselves." He and defendant had discussed having Stepping Stones juveniles come to work at The Laundromat to clean in the evenings. Defendant paid Stepping Stones $300 per month which was then split among the residents who worked there, with no money going to Stepping Stones.
The program has a goal of allowing each resident to earn $1,000 before leaving.
The initial selection process of juveniles suitable for employment was done without the participation of prospective employers. Residents were determined suitable for employment by program social workers based on an evaluation of established priorities. These included the residents' ability to be in the community and at no risk to the community; their age; and their ability to be successful within the group home as demonstrated by their behavior and level. Residents' privileges and release were also determined by their success in the group home. Due to confidentiality laws, very little background information about a juvenile would be given to an employer. No specifics about crimes committed would be provided nor would a psychological survey be given an employer.
Durrett was scheduled for release within three months. His placement was "for independent living skills and emancipation". He had never been charged with a criminal offense involving hitting, striking or harming anyone. He hit the plaintiff without any provocation or plan.
Maciorski testified that Sternberg pressured the staff to fill defendant's job shifts. Although a formal interview process with defendant was initiated, it eventually "started to be like bodies being filled in...." Durrett was hired and pulled off the job by Stepping Stones staff several times for drug use and unaccountability. To ensure responsibility, Stepping Stones counselors would make an unannounced check at The Laundromat at least once a night.
Patterson testified that Stepping Stones workers locked up the Laundromat every night at 10:30.
In opposition to the motion, plaintiff submitted excerpts from these same depositions which indicated that, according to Sternberg, defendant would have the final decision on who worked at The Laundromat. He informed defendant that the majority of Stepping Stones youngsters came from a background of incest, molest or severe physical abuse and that most were "300-series" wards of the court. He also explained that, while some of the juveniles were in a probation program, this was based on a history of dependency or neglect. He told defendant that "the likelihood for any risk would be very small".
On several occasions, defendant complained to Sternberg about the quality of the cleaning done at The Laundromat. Defendant fired one of the residents indirectly by telling Sternberg to do so. The day after the attack, defendant fired all Stepping Stones employees.
Sternberg was sure that, due to confidentiality laws, defendant never reviewed any psychological reports concerning Durrett prior to placement. He is "likely" to have told defendant that Durrett was on probation but not the nature of that probation.
Defendant understood that the residents at Stepping Stones were people with family problems. He did not learn that any of the residents had committed crimes or were on probation. The arrangement with Stepping Stones was for someone to clean, watch and lock up The Laundromat six hours a day, seven days a week for $300 per month. He originally interviewed between 5 and 10 prospective employees. During the interview, he explained the nature of what he expected. Once the residents were hired, he would occasionally stop by The Laundromat and talk to them. He would give them instructions on how to clean the store. Although defendant knew that the residents he initially hired were replaced by Stepping Stones, he never interviewed any of the replacements. He informed Sternberg that he "didn't want any troublemakers", but he did not recall asking anyone if they had a background as a troublemaker.
Durrett had been "in trouble" since age 13 when he ran away from his foster home. In 1983, he was put on probation after being caught acting as a look-out for a commercial burglary. He was charged with theft of cigarettes in 1984. When he was 15, he was charged with lewd touching of a four or five-year-old girl. He had not been arrested for any other sexual offenses. Prior to being placed with Stepping Stones, Durrett escaped from a county juvenile facility. He had gotten into one fight with another inmate while at Stepping Stones.
Durrett had spoken only casually with Sternberg. Before he began work at The Laundromat, his counselors talked to him about it but he was never interviewed by Sternberg or by defendant. After being taken off the job by Stepping Stones, he "earned" his way back to the job by "being responsible." His attack on plaintiff occurred on his second day back to work. He spoke to defendant at The Laundromat at least three times, but never discussed his criminal background. If defendant had asked him about his past, Durrett would have told him.
Durrett had a love-hate relationship with his mother. He had told Maciorski that he hated her and was mistreated by her. Sternberg believed that the psychological study performed on Durrett before he came to Stepping Stones showed that he had a potential for acting-out hostility and that he hated his mother. He did not recall that this hatred was generalized toward women.
Maciorski had been told by Durrett's prior therapist that he had been involved in a molestation. Prior to Durrett's attack on plaintiff, Maciorski learned that he had brandished a knife at someone and that Durrett had a history of drug abuse. Maciorski had also been told by a female Stepping Stones resident that Durrett "was real inappropriate with her at school, and that he was coming on really strongly sexually." Several other women counselors and friends had told him that Durrett interacted with them in a disturbing, "leching [sic] sexualized" manner. Maciorski stated that, as to violent behavior, Durrett was "a time bomb". He also confirmed that defendant originally interviewed prospective applicants with Sternberg but that Durrett was never interviewed by defendant. Durrett was pulled off the job after being caught with drugs, which were available in the general vicinity of The Laundromat. Even knowing Durrett's history, Maciorski would have recommended him for the job.
Due to confidentiality concerns, Maciorski would not have informed defendant about the molestation. If defendant had asked him if Durrett exhibited any strange sexual behavior around women, however, he would have told him his impressions. Maciorski gave conflicting answers about whether he would have conceived of Durrett attacking a woman.
Determining that there was no triable issue as to any material fact and that defendant owed plaintiff no duty of care, the court granted defendant's motion for summary judgment and entered judgment for defendant.
STANDARD OF REVIEW
A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c).) The purpose of summary judgment is to penetrate evasive language and adept pleading and ascertain the presence or absence of triable issues of fact. (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.) On such a motion, the papers of the moving party must be strictly construed and those of the opposing party liberally construed. Doubts as to the propriety of granting the motion should be resolved in favor of the opposing party. (Charpentier v. Von Geldern (1987) 191 The reviewing court conducts a de novo examination to determine whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 353, 257 Cal.Rptr. 356.) To succeed, a defendant moving for summary judgment "must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial." (Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190, 260 Cal.Rptr. 49.)
DUTY OF CARE
The existence of "duty" is a question of law. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728.) Duty has often been characterized as "only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts (3d ed. 1964), pp. 332-33 cited in Dillon v. Legg [1968] 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.)
A person is responsible for injuries caused by the failure to exercise ordinary care in the management of his or her person or property. (Civ.Code, § 1714.) As a general rule, a person owes no duty to control the conduct of another or to warn those endangered by such conduct. Exceptions are recognized in limited situations where a special relationship exists between the defendant and the injured party, or between the defendant and the active wrongdoer. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334.)
To determine the existence of duty in each particular case, the court must balance the foreseeability of the harm to plaintiff; the degree of certainty that plaintiff suffered injury; the closeness of connection between defendant's conduct and the injury suffered; the moral blame attached to defendant's conduct; the policy of preventing future harm; the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved. (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, 131 Cal.Rptr. 14, 551 P.2d 334.)
Duty to Hire Competent Employees
"Pursuant to the general theory that an employer is bound to exercise reasonable care for the safety of his customers, patrons, or other invitees, with whom an employee may come in contact on the employer's premises or in connection with the employer's business, it is generally recognized that an employer may be held liable for an assault or battery committed by his employee against a customer, patron, or invitee, if he has selected or retained in his employment an employee whose violent propensities were known, or should have been known, to him, and a causal connection can be shown between the employer's negligence in the selection of his employee and the tort committed by the employee." (6 Am.Jur.2d "Assault and Battery", § 134, p. 113.)
California is among those jurisdictions which follow the view "that an employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. [Citations.] The rule is stated in Restatement Second of Agency section 213: 'A person conducting an activity through servants ... is subject to liability for harm resulting from his conduct if he is negligent or reckless: ... (b) in the employment of improper persons ... involving the risk of harm to others: ...' [p] Comment d reads in part: 'The principal may be negligent But for the fact that Durrett was working at defendant's business as a result of a job program initiated by a private rehabilitative facility, there would be no doubt that this case should be presented to the jury regarding whether defendant was negligent in hiring or retaining an employee who is incompetent or unfit. We proceed to the question of whether, under the unique circumstances of this case, an employer's established common law duty of care must be suspended to further the public policy of fostering innovative rehabilitative programs.
The dissent would hold that defendant acted without negligence as a matter of law when he delegated his duty to select employees for his business to Stepping Stones, because it is licensed, has access to confidential information and is familiar with the program's residents. It is true that our research has not disclosed any California case authority which suggests that an employer may not delegate responsibility for screening or hiring employees "to someone else who is qualified to do so". In the absence of such authority, the dissent argues that the general rule that one is not liable for the negligence of an independent contractor is applicable. It is well-established, however, that the exceptions to this general rule are so numerous "that it can now be said to be 'general' only in the sense that it is applied where no good reason is found for departing from it". (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 252, 66 Cal.Rptr. 20, 437 P.2d 508.)
Duty to Inquire Prior to Employing Residents of Private Rehabilitation Center
The trial court based its decision that defendant owed plaintiff no duty as a matter of law on the public policy rationale articulated in Cardenas v. Eggleston Youth Center, supra, 193 Cal.App.3d 331, 238 Cal.Rptr. 251. We disagree. The public policy of fostering innovative release and rehabilitation programs is not applicable to a private employer of residents of a private rehabilitation center. This public policy is tailored to protect three interrelated interests: those of the releasing or rehabilitating agency, including its employees, in their decision-making process; those of prisoners, in not being unnecessarily incarcerated; and those of society in this rehabilitative effort. To effectuate these interests, the burden is placed on the general In Cardenas, supra, plaintiff was attacked by a minor resident of a state-licensed group home provider who had been placed in the home by the Juvenile Court as a condition of probation. The attack occurred at a convenience store after the minor obtained a pass to leave the home. Plaintiff alleged that the facility had a duty to the general public to exercise custody and control of its residents and to protect him from their violent behavior; that it encouraged violent behavior by providing the opportunity to "interact" with the residents of the community in which the attack occurred; and that it knew or should have known of the minor's violent propensities but failed to remove him from the facility. Defendant demurred and argued that it had no choice but to accept the placement of the minor. On appeal, the court upheld the granting of a demurrer without leave to amend. Adopting the reasoning and public policy concerns set forth in Beauchene v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 342, 151 Cal.Rptr. 796, it held that a private rehabilitation facility for criminal offenders owes no duty of care to members of the general community in which it is located for the criminal acts of its residents. (Id. at pp. 346-347, 151 Cal.Rptr. 796.)
Beauchene, supra, involved a convicted burglar granted probation on condition that he enter the Synanon program, a voluntary private rehabilitation institution for drug addicts. He escaped from the program shortly after arrival and shot plaintiff in the arm. Synanon accepted court referrals of convicted persons in lieu of jail or prison. It screened all referrals and had an option not to accept referrals based on its evaluation that a person might be dangerous. Plaintiff argued that Synanon had a duty to exercise care in accepting convicted persons into its program or that it had a duty to prevent the attacker from leaving the program based on the special relationship created by accepting him into the program.
The court rejected both theories due to their faulty premise that Synanon owed plaintiff a duty of due care. Because "duty" is an expression of public policy, the court balanced the " 'public interest in safety from violent assault ...' (citations) against the public policy favoring innovative criminal offender release and rehabilitation programs. [Citations.]" Conceding that plaintiff's injuries "may be grievous", the court reasoned that " '[o]f paramount concern is the detrimental effect a finding of liability would have on prisoner release and rehabilitation programs. Were we to find a cause of action stated we would in effect be encouraging the detention of prisoners in disregard of their rights and society's needs.' (Whitcombe v. County of Yolo, supra [1977], 73 Cal.App.3d 698, 716 [141 Cal.Rptr. 189].) Each member of the general public who chances to come into contact with a parolee or probationer must risk that the rehabilitative effort will fail. [Citations.]" (Id. at p. 348, 151 Cal.Rptr. 796.)
In finding no duty of care, the court extended the same public policy that moved the Legislature to immunize public release and rehabilitation programs from liability--"to encourage such innovations in the interests of criminal justice"--to private release and rehabilitation programs. "To hold respondent civilly liable would deter the development of innovative criminal offender release and rehabilitation programs, The public policy employed in these cases to negate the duty of care was extrapolated from Government Code section 845.8 which provides that "[n]either a public entity nor a public employee is liable for: (a) any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release. (b) Any injury caused by: (1) An escaping or escaped prisoner; (2) An escaping or escaped arrested person; or (3) A person resisting arrest." As noted by the Law Revision Commission, "[t]his section is a specific application of the discretionary immunity recognized in California cases and in Section 820.2. The extent of the freedom that must be accorded to prisoners for rehabilitative purposes and the nature of the precautions necessary to prevent escape of prisoners are matters that should be determined by the proper public officials unfettered by any fear that their decisions may result in liability." (4 Cal.Law Revision Com.Rep. (Dec.1963) p. 861.)
We do not doubt that a private employer who hires probationers or residents of rehabilitation centers assists in the "rehabilitative effort". Broadly defined, the "rehabilitative effort" naturally encompasses any educational, employment, religious, communal or athletic activity which assists an offender to make a transition from a position of limited freedom to one of unfettered freedom. Nonetheless, the public policy protecting release and rehabilitation programs from a duty of care is not so expansively construed. A review of the cases cited by Beauchene as expressing this policy reveals that the rehabilitative focus is on the decision to place the offender in the general community and the resulting potential for harm to that community. (See County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 485, 105 Cal.Rptr. 374, 503 P.2d 1382 (homicide during burglary by escaped prisoner allegedly negligently classified and allowed to escape); Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 716-717, 141 Cal.Rptr. 189 (assault by probationer known to be mentally unstable against individuals who assisted in investigation of his theft charge); State of California v. Superior Court (1974) 37 Cal.App.3d 1023, 1026, 112 Cal.Rptr. 706 (arson committed by prisoners negligently released into general population by State's Community Center); and County of Santa Barbara v. Superior Court (1971) 15 Cal.App.3d 751, 93 Cal.Rptr. 406 (murder of member of the general public following release on bail of intoxicated and violent person under arrest).)
Despite clear evidence of the dangers inherent in parole and probation release decisions, such actions "comprise an integral and continuing part in our correctional system ..., serving the public by rehabilitating substantial numbers of offenders and returning them to a productive position in society.... [p] Obviously aware of the risk of failure of probation and parole programs the Legislature has nonetheless as a matter of public policy elected to continue those programs even though such risks must be borne by the public. (See Beauchene v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 342 [151 Cal.Rptr. 796].)" (Thompson v. County of Alameda, supra, 27 Cal.3d at pp. 753-754, 167 Cal.Rptr. 70, 614 P.2d 728.) In such circumstances, immunity for both ministerial and discretionary acts or omissions is justifiable "when one reflects that prison administrators would of necessity be inhibited in maintaining rehabilitative programs allowing liberal prisoner freedom if the result is to increase greatly the risk of escape, and the entity is to be held responsible to third persons for injuries caused by the escaped prisoner." (County of Sacramento v. Superior Court, supra, 8 Cal.3d at p. 485, 105 Cal.Rptr. 374, 503 P.2d 1382.)
The public policy on which defendant would have us rely is premised on not "encouraging the detention of prisoners in disregard of their rights and society's needs." (Whitcombe v. County of Yolo, supra, 73 Cal.App.3d at p. 716, 141 Cal.Rptr. 189.) Cardenas also emphasized the "indispensable public function" of private rehabilitation programs "particularly in In addition, Cardenas, Beauchene and Vu each involved the broad duty to warn all members of the general community about the risk of potential harm from particular residents. In such instances, there is no duty to warn unless the victim is foreseeable and specifically identifiable. (Thompson v. County of Alameda, supra, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728.) In contrast to this potentially overwhelming burden on the release and rehabilitative system, an employer's duty to inquire about the background of a specific prospective employee is easily accomplished.
These cases also alleged a duty to control the conduct of the perpetrators. The issues of duty to control and duty to warn are generally treated as parallel. (Brenneman v. State of California (1989) 208 Cal.App.3d 812, 819, 256 Cal.Rptr. 363.) Where a special relationship between the defendant and a third person gives rise to a duty on defendant's part to control the third person (Rest.2d Torts, § 315, subd. (a)), the duty may be discharged by giving a warning to a foreseeable victim, or by restraining or directly controlling or influencing the third person. (Duffy v. City of Oceanside (1986) 179 Cal.App.3d 666, 671, 224 Cal.Rptr. 879.)
We have found no cases where the policy of protecting release and rehabilitation programs has been invoked to shield an employer of a probationer who attacks a business invitee while employed in a work furlough program from its duty of care in selecting employees. (See Pen.Code, § 1208; Welf. & Inst.Code, §§ 925-930.) The Attorney General has rendered an opinion that, in the absence of a "special relationship" between it and the plaintiff, a county would generally be immune from liability under section 845.8 for injuries inflicted on the plaintiff by a criminal defendant performing voluntary services for public or private non-profit agencies in lieu of jail or fine. (61 Ops.Cal.Atty.Gen. 78-18, 265 (1978).) This opinion sheds no light on the issue before us, however, because there was no employer-employee relationship and because its focus was on the liability of the county and not the private non-profit agency.
Finally, we reject defendant's argument that because Cardenas applies to relieve Stepping Stones of liability, the same policy concerns should be extended to protect an employer providing job opportunities to Stepping Stones' residents. This argument conveniently overlooks the difficulties involved in extending Cardenas, which involved injuries to the general community, to Stepping Stones, which involves injuries in a specific setting as a result of its evaluation of the risk of placing Durrett in a continuous relationship with defendant and his business invitees. As recognized by both Stepping Stones and plaintiff when they entered into their good faith settlement, application of Cardenas to Stepping Stones is not necessarily easy under these facts. Although it is not necessary for us to decide whether Stepping Stones had a duty of care in this situation, it is likely that, under Johnson v. California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d
Although in its declaration in support of its motion to confirm its good faith settlement, Stepping Stones asserted that Cardenas was "on all fours", the very different facts of these cases and its own action belie that assertion. Both Stepping Stones and plaintiff recognized on some level that determining the applicability of the Cardenas decision to Stepping Stones would involve prolonged litigation.
We find that the factors for determining the existence of a duty of care balance in favor of retaining an employer's duty to select competent employees. Defendant in this instance gave Stepping Stones employees substantial responsibility for locking up his business each evening at 10:30 p.m. With the exception of one nightly unannounced visit by a Stepping Stones counselor, the employees were unsupervised. In these circumstances, it is foreseeable that business invitees might be injured by an unsupervised employee with vicious propensities, especially where the business is open late at night and the potential for one-on-one encounters is likely.
The burden on the employer to make an inquiry about the background of prospective employees is not onerous when viewed against the potential for harm. We do not believe that the consequences to the community will be as dire as suggested by defendant. The duty to exercise due care in the selection of prospective employees is an established one. (See Rahmel v. Lehndorff (1904) 142 Cal. 681, 76 P. 659.) Nonetheless, civic-minded employers, such as the defendant, have assisted in efforts to provide job opportunities. These employers can protect themselves by making a reasonable inquiry into the background of prospective employees. It is to that issue we now turn.
NEGLIGENT HIRING AND FORESEEABILITY OF HARM
There was sufficient evidence of negligent hiring and foreseeability of harm adduced to raise triable issues of fact for the jury.
Defendant contends that it was totally unforeseeable that a resident screened by Stepping Stones as qualified for employment would brutally attack a patron without provocation. We cannot say that such an attack was totally unforeseeable as a matter of law. Foreseeability "may be decided as a question of law only if, 'under the undisputed facts there is no room for a reasonable difference of opinion.' [Citations.]" (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 126, 211 Cal.Rptr. 356, 695 P.2d 653, quoting Bigbee v. Pacific Telephone and Telegraph Company (1983) 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947.) In this case, there is clearly a factual dispute as to whether Durrett was capable of violence. Although there is no indication that Durrett had been involved in prior similar incidents, the lack of such incidents does not by itself negate the element of foreseeability as a matter of law. (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at pp. 125-126, 211 Cal.Rptr. 356, 695 P.2d 653.)
Plaintiff argues that, to avoid liability for negligent hiring, an employer must personally conduct a reasonable pre-employment investigation. She relies on Ponticas v. K.M.S. Investments (Minn.1983) 331 N.W.2d 907, which found an employer liable DISPOSITION
The judgment is reversed. Costs to appellant.
CARR, Acting P.J., concurs.
SIMS, Associate Justice, dissenting.
I respectfully dissent.
Considering all circumstances, I think it is hugely unfair that in his attempt to be a good citizen, defendant Dennis Patterson gets saddled with liability for the aberrational violent act of Daniel Durrett.
The legal ground of my disagreement with the majority is that defendant could legally delegate his duty of hiring to Stepping Stones, and the evidence shows without dispute that Patterson acted reasonably in doing so.
The evidence shows defendant delegated his duty of hiring Durrett to Stepping Stones, an independent entity. As a general rule, one is not liable for the negligence of an independent contractor. (McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788, 285 P.2d 902.) However, the courts have created an exception to the general rule for certain "nondelegable" duties, i.e., situations where, for reasons of policy, a citizen may not avoid fulfillment of his or her duty of care by delegating the task to an independent contractor. (See Maloney v. Rath (1968) 69 Cal.2d 442, 446-447, 71 Cal.Rptr. 897, 445 P.2d 513; Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 250-255, 66 Cal.Rptr. 20, 437 P.2d 508; Rob-Mac, Inc. v. Department of Motor Vehicles (1983) 148 Cal.App.3d 793, 797-798, 196 Cal.Rptr. 398.)
However, we have been cited no California authority, nor am I aware of any, suggesting an employer may not delegate the responsibility for screening or hiring employees to someone else who is qualified to do so. 1 In our modern economy, employers routinely rely on qualified employment or personnel agencies to send over employees The dispositive question is whether the employer acts reasonably in delegating the hiring decision to another. Here, in my view, the undisputed evidence shows defendant Patterson acted without negligence in relying upon Stepping Stones to furnish employees for defendant's laundromat. Stepping Stones was licensed by the state. It employed qualified staff, who were intimately familiar with the program's residents. Only Stepping Stones was or could be familiar with confidential information, including psychological profiles, about its residents. The record discloses no other serious problems with employees furnished by Stepping Stones to defendant. Defendant had no reason to believe that Stepping Stones would not supply employees qualified for the laundromat job.
In short, I think defendant acted reasonably as a matter of law in accepting the employees recommended by Stepping Stones. In the absence of some reliance by plaintiff, it is immaterial that defendant initially interviewed five or ten prospective employees. The crucial question is whether he acted reasonably in relying on Stepping Stones thereafter. The undisputed evidence shows he did.
" 'In general, the issue of a defendant's negligence presents a question of fact for the jury. [Citations.] A defendant's negligence may be determined as a matter of law only if reasonable jurors following the law could draw only one conclusion from the evidence presented. [Citation.]' (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 971 [227 Cal.Rptr. 106, 719 P.2d 676].) However, in an appropriate case, a defendant's lack of negligence may be determined as a matter of law. (See Richards v. Stanley (1954) 43 Cal.2d 60, 66-67 [271 P.2d 23].) This is such a case." (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 712-713, 252 Cal.Rptr. 613.)
This much is clear to me: if the majority's view remains the law, no employer with a good lawyer will ever take a chance on hiring a kid with problems. How are they to support themselves? What is to become of them?
We do not hold that defendant could not legally have delegated his duty of hiring. Rather, we hold that whether it was reasonable under the facts of this case for defendant to have delegated his duty to this particular entity is a question of fact for the jury. In this regard, we note another important caveat to the general rule that an employer is not liable for the negligence of an independent contractor--that it is the employer's duty to exercise care to select a competent contractor. "Where there is a foreseeable risk of harm to others unless precautions are taken, it is his duty to exercise reasonable care to select a competent contractor, and to provide, in the contract or otherwise, for such precautions.... In all of these cases, he is liable for his personal negligence, rather than that of the contractor." (Risley v. Lenwell (1954) 129 Cal.App.2d 608, 622, 277 P.2d 897 (quoting Prosser on Torts).)
The fact that Stepping Stones is licensed to operate a private rehabilitation center does not compel a conclusion that it is qualified to make employment screening and referral decisions in all cases or that it acted responsibly in making decisions in this case. Unlike the typical "Kelly Girl/Boy" situation, Stepping Stones is not in the business of routinely screening and providing temporary employees. Furthermore, although the jury may well find that defendant acted reasonably in wholly delegating his responsibility after participation in the initial interviews, the record indicates that
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there was a very fast turnover in employees and counselors were pressured to fill in bodies. Defendant was aware of this turnover yet chose not to involve himself in determining who would operate his business alone, at night. Finally, although defendant's altruism is to be commended, he clearly benefited from an arrangement wherein he paid the employees less than $2.00 per hour.