This week’s question comes from Janice G. in San Mateo, who asks:
Q: “I was being driven home from the airport to my house in San Diego in one of those shuttle van services. After dropping off two others, I was the last passenger. I had given the guy my address when I got into the van. The driver, a middle-aged guy started creeping me out as he asked me about myself such as whether I was single, married, had a boyfriend, etc. Then he started asking me what kind of sex I liked and started telling me what kind of things he liked to do. It made me afraid.
“As he pulled up to my apartment he said: “I hope I will see you again soon.” The next day I found a note in my mailbox saying that I should give him a call and left his name. I Googled him and found out, through Facebook and those background search companies, that he was a convicted felon with a history of sexual assault and kidnapping. I told the shuttle company and they said “that they would look into it.” I have heard nothing else from them. I am scared that this guy may come back to my house and attack me so I have left my apartment and I am staying with friends in San Mateo. It doesn’t seem right that I should have been exposed to a felon by the shuttle service. They say on their website that their drivers are all screened for criminal records. I called the police but they said that there was nothing they could do because all he did was talk about sex and he didn’t touch me. I won’t go back to my apartment. What are my rights?”
A: Janice, your concerns are understandable. You hired a service that says that its drivers are screened and it turns out that they couldn’t have been because if they had done even the simple Internet search that you did, they would have found out about his history. Employers have a duty to properly screen their employees for fitness for their assigned jobs. An employer can be held liable for damages to a third person (in this case you) when the employer has been negligent in the hiring or retaining of an employee who is incompetent or unfit.
As one California case states: “Liability for negligent hiring … is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.”
Therefore an employer can be found to be negligent for harms caused by its employees conduct if the employer knew, or should have known, that hiring the employee created a particular risk of harm that later occurred. A legal treatise called the Restatement Second of Agency, followed by California, set forth the legal principal that a person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless in the employment of improper persons or instrumentalities in work involving risk of harm to others.
The restatement goes on to explain that an agent may be incompetent because of his reckless or vicious disposition, and if a principal, without exercising due care in selection, employs a vicious person to do an act that necessarily brings him in contact with others while in the performance of a duty, he is subject to liability for harm caused by the vicious propensity. One who employs another to act for him is not liable merely because the one employed is incompetent, vicious or careless. If liability results, it is because, under the circumstances, the employer has not taken the care that a prudent person would take in selecting the person for the business in hand.
In 2006, the Restatement Third came out distilling the concept: “A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent’s conduct if the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent.”
The above represents the responsibility of the regular everyday employer. Employers in the business of transporting people are called common carriers. They not only have the obligation to act reasonably, they owe a greater duty of care to those they transport because they do so in exchange for compensation. Section 2100 of the California Civil Code sets forth the rule:
“A carrier of persons for reward must use the utmost care and diligence for their safe carriage [and] must provide everything necessary for that purpose.” Given the opportunity created by placing a felonious sexual offender and kidnapper in a position where he could use his job, and the cover of being a shuttle driver, to gain access to victims, the utmost care and diligence would require undertaking a thorough background search and, although driving a shuttle is not one of the job positions which the law precludes sexual offenders from obtaining, refusing to hire a driver convicted of sexual assault and kidnapping. You should contact a trial lawyer to help you protect yourself from the driver and hold the shuttle service accountable for the impact on your life.California Civil CodeChristopher DolanFeaturesRestatement Second of AgencyRestatement Third