Home / Fulltext Opinions / Supreme Court of Virginia / S.E. APARTMENTS MGMT., INC., et al. v. JACKMAN


et al.



February 26, 1999
Record No. 981000





Frederick B. Lowe, Judge
Present: All the Justices

In this tort action, we consider whether the
trial court erred in ruling that a jury question was presented on
a tenant’s claims that an owner of leased premises breached
either its duty to exercise reasonable care in the hiring of its
employee, the tortfeasor, or its duty to exercise reasonable care
in the retention of the employee.

On July 27, 1996, appellee Kimberly M. Jackman
was a tenant in the Kings Arms Apartments in Virginia Beach,
owned by appellant Southeast Mortgage and Investment Corporation
and managed by appellant Southeast Apartments Management, Inc.
(collectively, the owner). At the time, the owner employed one
Douglas Turner as the Apartments’ "maintenance
supervisor;" he had been so employed for approximately two

Near 5:00 a.m. on July 27, the tenant was
asleep in her upstairs bedroom holding her infant son. The only
other occupant of the apartment was an older son, two years of
age. She awoke and saw a man standing in the hallway. Identifying
himself as "the maintenance man," Turner "came
over," sat next to the tenant on her bed, said "he had
had quite a bit to drink," and started rubbing her thigh. He
arose in response to her pleas for him to leave, "walked
down the stairs," and left the premises. "Scared,"
the tenant fled with her children to her parents’ home and called
the police.

Subsequently, the tenant filed the present
action for damages, charging the owner with "negligent
hiring and retention" of Turner. During the trial, the court
instructed the jury on those issues and on proximate cause. The
jury found in favor of the tenant, fixing her damages at $12,500.
The trial court entered judgment on the verdict in a February
1998 order, from which we awarded the owner this appeal.

The owner contends the trial court erred,
first, in failing to rule, as a matter of law, that the tenant’s
evidence was insufficient to create a prima facie case of either
negligent hiring or negligent retention, and, second, in failing
to rule that any such negligence was not a proximate cause of the
tortious act. Because of the view we take of the case, we do not
reach the question of proximate cause.

Applying settled principles of appellate
review, we shall summarize the evidence in the light most
favorable to the tenant, who comes to this Court armed with a
jury’s verdict confirmed by the trial judge.

First, we shall relate the facts on the hiring
aspect of this case. Turner was among several applicants for the
advertised job of "maintenance supervisor" for the
199-unit apartment complex. The duties of the position included
assuring the proper functioning of the apartment utilities,
"keep[ing] up the grounds," and being "on call 24
hours a day."

Turner, 31 years of age, had submitted a
detailed application, including a "very professionally
printed" personal resume. He was interviewed by Melanie L.
Ayscue, the apartment "resident manager," and by the
owner’s "regional manager."

As part of the application process, Turner
executed a release authorizing inquiry into his work, credit, and
educational history, as may be disclosed through his personal
references and public records. Ayscue attempted to talk with six
persons Turner had listed as personal references and was able to
speak with only two of them. They gave Turner good

Ayscue performed a "background check"
on Turner, but did not request a copy of his "criminal
record." She testified that the "law" did not
require her "to do a criminal background check." In the
"Behavioral History" portion of the application, Turner
indicated that of the 34 crimes listed, he had committed only
"Traffic Violations." Ayscue administered a behavioral
test to him, graded by a third party, and he scored

Upon completion of the application process,
Ayscue employed Turner with the regional manager’s approval.
After he was hired, Turner lived in one of the apartments and was
furnished a "master key" that could open a
"percentage of the apartments."

Next, we shall relate the facts on the
retention aspect of the case. Ayscue told the detective who
investigated the assault on the tenant that Ayscue, based on the
"appearance" Turner had when "he came to work
mornings, . . . suspected that he either had an alcohol
or drug abuse problem," and that Ayscue "had heard him
talking to the assistant property manager about the females in
the apartment complex that he thought were attractive that he was
interested in dating." Ayscue testified Turner came to the
apartment office one Saturday before the incident and stated to
her "he had one beer at a party." Ayscue said she would
not allow Turner to leave the office that afternoon to answer any
maintenance "calls."

The tenant testified that, after the incident,
Ayscue and the apartment assistant manager remarked "about
how [Turner] had mentioned getting phone numbers of single women
that had lived in the apartment." Ayscue testified that
Turner asked her for the telephone number of a resident named
"Virginia," which Ayscue assumed was in connection with
a request for maintenance. The assistant manager testified that
Turner asked for the telephone number of a "Ginger," a
single woman who resided in the apartment, and that "an
older lady who had a Cocker Spaniel" had "invited him

The tenant also stated that Ayscue "had
mentioned to me how during their lunch breaks they used to hide
from him because he was so obnoxious, he tried to follow them
everywhere they went. So they would sneak out for lunch so he
wouldn’t go with them."

This Court has recognized the independent tort
of negligent hiring. J. . . v. Victory Tabernacle
Baptist Church
, 236 Va. 206, 208-09, 372 S.E.2d 391, 393
(1988); Davis v. Merrill, 133 Va. 69, 78-81, 112
S.E. 628, 631-32 (1922). The cause of action is based on the
principle that one who conducts an activity through employees is
subject to liability for harm resulting from the employer’s
conduct if the employer is negligent in the hiring of an improper
person in work involving an unreasonable risk of harm to others. Ponticas
v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn. 1983). Accord,
Victory Tabernacle Baptist Church, 236 Va. at 211, 372
S.E.2d at 394. See John H. Derrick, Annotation, Landlord’s
Tort Liability to Tenant for Personal Injury or Property Damage
Resulting from Criminal Conduct of Employee
, 38 A.L.R.4th 240
(1985). "Liability is predicated on the negligence of an
employer in placing a person with known propensities, or
propensities which should have been discovered by reasonable
investigation, in an employment position in which, because of the
circumstances of the employment, it should have been foreseeable
that the hired individual posed a threat of injury to
others." Ponticas, 331 N.W.2d at 911.

This Court also has recognized the independent
tort of negligent retention. Philip Morris Inc. v. Emerson,
235 Va. 380, 401, 368 S.E.2d 268, 279 (1988); Norfolk
Protestant Hosp.
v. Plunkett, 162 Va. 151, 156, 173
S.E. 363, 365 (1934). As applicable to the facts of the present
case, this cause of action is based on the principle that an
employer owning leased premises is subject to liability for harm
resulting from the employer’s negligence in retaining a dangerous
employee who the employer knew or should have known was dangerous
and likely to harm tenants. Mallory v. O’Neil, 69
So.2d 313, 315 (Fla. 1954). See Svacek v. Shelley,
359 P.2d 127, 131 (Alaska 1961).

Applying the foregoing principles to the facts
of this case, we hold the tenant’s evidence is wholly
insufficient to make out a prima facie case of either negligent
hiring or negligent retention.

During the hiring process, the owner received a
detailed application containing information about Turner’s
personal background, work experience, and behavioral history.
None of this information gave a hint that Turner may have had a
propensity to molest women. Ayscue discussed Turner’s
qualifications with two persons who formerly supervised his work;
they recommended him for employment and furnished no information
that Turner may have posed a threat of committing assaults upon
female tenants.

In connection with her "background
check," Ayscue did not investigate Turner’s prior criminal
record, if any; under these facts, she was not obligated to do so
in the exercise of reasonable care. In the application, Turner
represented that he had "absolutely never engaged" in
34 types of criminal behavior, except traffic violations.
Additionally, in the application he also denied conviction
"in the past seven years" of 28 listed felonies.

The tenant dwells on a part of the opening
statement of the owner’s attorney. He said that a "criminal
records check" would have disclosed Turner "wrote a bad
check for $l.29" and another "for $9" in Georgia
when he was 20 years of age. Even if this can be considered part
of the evidence in the case, which it cannot, it is the only
indication in the entire record that Turner had been convicted of
non-traffic offenses. Even if the owner had learned of these
petty offenses, it would not have been alerted to the fact that
Turner would engage in criminal sexual activity.

In sum, there are no facts that would have put
the owner on notice that its hiring of Turner might reasonably
lead to a pre-dawn assault on the tenant.

While retaining Turner during his two-month
tenure before the incident in question, the owner did not know,
nor should it have known, in the exercise of reasonable care,
that Turner was dangerous and likely to harm tenants. The fact
there was a "suspicion" Turner may have had an alcohol
or drug "problem," and may have had an attraction for
single women, did not render this 31-year-old single man a
dangerous employee and one likely to commit sexual assaults. Nor
does the fact that an employee is "obnoxious," in the
opinion of other employees, furnish notice to an owner exercising
reasonable care that the employee is likely to sexually assault

Consequently, we are of opinion that the trial
court erred in refusing to rule, as a matter of law, that the
tenant failed to establish a prima facie case of negligent hiring
or retention. Therefore, we will reverse the judgment below, set
aside the verdict in favor of the tenant, and enter final
judgment here in favor of the owner.

Reversed and final judgment.