Blair v. Defender Services, Inc.
| Decision Date | 25 October 2004 |
| Docket Number | No. 03-1280.,03-1280. |
| Citation | 386 F.3d 623 |
| Parties | Kristin D. BLAIR, Plaintiff-Appellant, v. DEFENDER SERVICES, INCORPORATED, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Western District of Virginia, James C. Turk, Senior District Judge.
ARGUED:
Monica Taylor Monday, Gentry, Locke, Rakes & Moore, Roanoke, Virginia, for Appellant. John Dickens Eure, Johnson, Ayers & Matthews, Roanoke, Virginia, for Appellee.
ON BRIEF:
S.D. Roberts Moore, Andrew E. Carpenter, Gentry, Locke, Rakes & Moore, Roanoke, Virginia, for Appellant. Brian J. Brydges, Johnson, Ayers & Matthews, Roanoke, Virginia, for Appellee.
Before WIDENER and KING, Circuit Judges, and Richard D. BENNETT, United States District Judge for the District of Maryland, sitting by designation.
Affirmed in part, reversed in part, and remanded by published opinion. District Judge BENNETT wrote the opinion, in which Judge KING concurred. Judge WIDENER wrote an opinion concurring in part and dissenting in part.
Plaintiff Kristin D. Blair, a Virginia resident, brought this action against Defender Services, Inc. ("Defender"), a South Carolina Corporation, for injuries sustained as a result of a violent attack upon her by James Lee Harris, an employee of Defender. Alleging claims against Defender for negligent hiring, retention and supervision and for respondeat superior liability, Blair filed a complaint in the Circuit Court for the City of Roanoke, Virginia. The case was duly removed to the United States District Court for the Western District of Virginia on the basis of diversity of citizenship, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. Subsequently, the District Court granted Defender's motion for dismissal as to the negligent supervision count, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 Upon the conclusion of discovery, Defender moved for summary judgment as to the remaining three claims. The District Court entered summary judgment for Defender on all three counts, and Blair now appeals. We affirm the decision of the District Court as to respondeat superior liability, but reverse that court's entry of judgment for Defender on the claims of negligent hiring and negligent retention, and remand this case for further proceedings consistent with this opinion.
This Court reviews a grant of summary judgment de novo and applies the same standard as the District Court. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir.1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992); Baber v. Hospital Corp. of America, 977 F.2d 872, 874 (4th Cir.1992). Federal Rule of Civil Procedure 56 provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, interrogatories and affidavits . . . show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." We have previously noted that, when "the moving party has met its responsibility of identifying the basis of its motion, the non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" White v. Rock-ingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir.1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In its review, this Court must view such facts and all reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If the evidence is such that a reasonable jury could return a verdict for the non-moving party" then a dispute over a material fact is genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In conducting this analysis, this Court recognizes that the instant action was filed in Virginia state court and removed to federal court based upon diversity of citizenship. Accordingly, the choice of law of Virginia applies. See Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In evaluating the facts in the light most favorable to the non-moving party, we will apply Virginia substantive law consistent with Virginia's lex loci delicti, the law of the place of the wrong. See, e.g., Jones v. R.S. Jones & Assocs., 246 Va. 3, 431 S.E.2d 33, 34, 9 Va. Law Rep. 1410 (1993); Buchanan v. Doe, 246 Va. 67, 431 S.E.2d 289, 291, 9 Va. Law Rep. 1446 (1993).
On the morning of March 26, 2001, at approximately 11:30 a.m., Kristin D. Blair ("Blair"), a 19-year-old college freshman at Virginia Polytechnic Institute and State University ("Virginia Tech"), entered the digital art classroom in Henderson Hall on the Virginia Tech campus to work on a project prior to the commencement of a 2:00 p.m. class session. When Blair arrived, other students were completing a class in the room. By 12:30 p.m., all but a few of these students had departed. Around that time, a man wearing blue jeans and a gray t-shirt with a colorful logo entered the room and soon departed. A few minutes later, that same man returned and asked Blair, who was now alone in the classroom, when the next class started.
At approximately 12:45 p.m., Blair left the classroom and observed the same man standing in the middle of the hallway, with a large gray bucket beside him. After walking to the end of the hallway, Blair entered a unisex bathroom. When she opened the restroom door to leave, the same man was standing in the doorway. Suddenly, this individual grabbed Blair by her neck and pushed her back into the bathroom. While straddling Blair and using both hands to strangle her, the attacker pushed her to the floor. Blair lost consciousness during the attack. She awoke on the bathroom floor, with her face swollen to the extent that she only could see out of one eye.2 Blair then left the bathroom and began screaming for help. A member of the Virginia Tech administrative staff approached her and asked, "who did this?". Blair pointed to the same man whom she had seen earlier, and who was standing in the hallway.
The man identified by Blair was James Lee Harris, an employee of Defender, which, pursuant to a contract, provided janitorial staffing services on Virginia Tech's campus.3 Eleven months prior to his attack on Blair, a protective order had been issued against Harris in the Giles County Juvenile and Domestic Relations Court.4 This protective order resulted from a criminal complaint having been filed by a woman who had been physically assaulted by Harris at a restaurant.
Harris previously had worked for Defender during a brief period from November 1998 until January 1999. At that time, Defender required Harris to complete an application that included a question concerning any criminal charges, to which Harris answered that he had no prior criminal convictions. Pursuant to a contract with Virginia Tech, Defender assigned Harris to perform custodial work at Virginia Tech under Virginia Tech's supervision. That contract required Defender to perform criminal background checks on all Defender personnel assigned to the Virginia Tech campus. A criminal background check of Harris was not completed by Defender during this two-month period.
In January of 1999, Harris quit his employment with Defender, and became employed directly by Virginia Tech for approximately one year. Harris returned to the employment of Defender for a brief two weeks in October of 2000. Once again Harris completed another application and indicated no criminal convictions. Defender did not conduct a criminal background check with respect to Harris during this second brief period of employment.
On February 5, 2001, Defender once again hired Harris. Unlike Harris' prior employment with Defender, he was not required to complete any application on this third occasion. As with the previous occasions, Defender did not conduct a criminal background check on Harris prior to his employment. Defender's representatives did, however, contact some of the personal references provided by Harris. While Harris did not have a record of any criminal convictions, he was subject to the aforementioned court protective order in neighboring Giles County.
At all times, the contract between Defender and Virginia Tech specifically required Defender to perform criminal background checks on all personnel assigned to Virginia Tech property. Expert testimony offered in opposition to Defender's motion for summary judgment presented the view that Defender's pre-employment screening of Harris was inadequate. Specifically, there was evidence that Defender would have discovered that Harris was the subject of a protective order and criminal complaint in the neighboring county if a background investigation had been conducted as required.
The Supreme Court of Virginia in the cases of Gina Chin & Assocs. v. First Union Bank, 260 Va. 533, 537 S.E.2d 573 (Va.2000), and Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 539 S.E.2d 426 (Va.2000), both decided on the same day and authored by Justice Lawrence L. Koontz, Jr., addressed the elements of a claim against an employer for the wrongful acts of an employee based on the doctrine of respondeat superior. In Gina Chin, the court noted that "(a)lmost from its first consideration by the courts of this Commonwealth. . . the determination of the issue [of] whether the employee's wrongful act was within the scope of his employment under the facts of a particular case has proved `vexatious.'" 537 S.E.2d at 576-577 (citations omitted). In Majorana, the court explained that:
When the plaintiff presents evidence sufficient to show the existence of an employer-employee relationship, she has established a prima facie case triggering a presumption of liability . . . the burden...
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