‘Failure to Screen’ Claim Dismissed

Deborah Elkins//February 22, 2012

‘Failure to Screen’ Claim Dismissed

Deborah Elkins//February 22, 2012

A Fairfax Circuit Court rejects a negligence claim against a company that screens job applicants for allegedly missing the “extensive” criminal record of a leasing agent hired by a Falls Church apartment complex, who later was sentenced to the death penalty for the murder of a tenant at the complex.

The issue is whether an independent duty sounding in tort exists where a party’s negligent performance under a contract causes physical harm or death to a third party. There is no Virginia case law precisely on point, but there is ample precedent holding there is no common law duty to protect a person from the violent acts of a third party absent a special relationship.

Here, plaintiff argues defendant Liberty assumed a duty that it owed tenant to “identify potential employees with a history and/or propensities towards violence and whom it knew to be dangerous to others.” Plaintiff grounds its argument in Section 323 of the Restatement (2nd) of Torts.

Plaintiff also relies on Kellermann v. McDonough, 278 Va. 478 (2009), in which the Supreme Court of Virginia referenced Section 323, to argue that a defendant may be held liable for the wrongful death of another person caused by the criminal acts of a third party where the defendant voluntarily assumed a common law duty.

The facts of Kellermann are distinguishable from the instant case insofar as the defendant mother in Kellermann personally agreed with plaintiff to undertake a duty on behalf of decedent. By contrast, Liberty never agreed to assume a duty on behalf of decedent. In fact, there is no evidence decedent was even aware of Liberty’s existence. Unlike in Kellermann, there is no allegation of an agreement between plaintiff and Liberty in this case.

Instead, Liberty had a contract with Berkshire, and any duty alleged in the complaint arises solely out of that contract. It is this court’s opinion the complaint fails to plead sufficient facts for the court to conclude that Liberty assumed a common law duty independent of any contractual duty it owed to the Berkshire defendants.

The demurrer of Liberty Screening Services Ltd. is sustained with prejudice.

Orange, Adm’r v. Berkshrie Property Advisors LLC (Bellows) No. CL 2010-11571, Dec. 14, 2011; Fairfax Cir.Ct.; William F. Krebs, John B. Mumford for the parties. VLW 012-8-002, 7 pp.


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