D.R.R. v. English Enterprises, CATV, Div. of Gator Transp., Inc.

• Decision Date: 06 September 1984
• Docket Number: No. 83-789,83-789
• Citation: 356 N.W.2d 580
• Parties: D.R.R., Social Security Number 484-62-7735, A Female, Plaintiff-Appellant, v. ENGLISH ENTERPRISES, CATV, DIVISION OF GATOR TRANSPORTATION, INC., and American Heritage Cablevision, Inc., Defendants-Appellees.
• Court: Iowa Court of Appeals

Page 580

356 N.W.2d 580

D.R.R., Social Security Number 484-62-7735, A Female, Plaintiff-Appellant, v. ENGLISH ENTERPRISES, CATV, DIVISION OF GATOR TRANSPORTATION, INC., and American Heritage Cablevision, Inc., Defendants-Appellees.

No. 83-789.

Court of Appeals of Iowa.

Sept. 6, 1984.

Lyle A. Rodenburg, Council Bluffs, for plaintiff-appellant.

Curtis Hewett and Philip Willson of Smith, Peterson, Beckman & Willson, Council Bluffs, for defendant-appellee English Enterprises.

David A. Svoboda and Lyman L. Larsen of Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., and David F. McCann, Council Bluffs, for defendant-appellee American Heritage.

Heard by OXBERGER, C.J., DONIELSON, and SCHLEGEL, JJ.

SCHLEGEL, Judge.

Plaintiff appeals the trial court's grant of summary judgment in favor of English Enterprises and American Heritage. She claims the court erred in finding that there were no genuine issues of material fact permitting plaintiff to prevail on the various theories she alleged. We reverse.

Plaintiff has filed a petition claiming damages resulting from her violent and forcible rape by Kenneth Logston. The record shows that the rape occurred and that Logston has been convicted of that crime as well as First Degree Burglary, and has been sentenced to a term of imprisonment.

Logston was engaged in installing cable television services for residents of Council Bluffs, Iowa, in pursuance of the construction and installation of a cable television system in that city. The defendant, American Heritage Cablevision, Inc., had entered into a franchise agreement with the city for the furnishing of such service to the residents thereof. The record also shows that American and the defendant English Enterprises, CATV, entered into a contract that required English to furnish personnel to connect the cable system to the television sets of individual residents. English hired Logston as an installer.

I. Scope of Review. In reviewing the grant or denial of a summary judgment motion, we view the underlying facts contained in the pleadings and the inferences to be drawn therefrom in the light most favorable to the party opposing the motion, and give to such party the benefit of any doubt as to the propriety of granting summary judgment. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied, and to reverse the grant of summary judgment if it appears from the record there is an unresolved issue of material fact. Meylor v. Brown, 281 N.W.2d 632, 634 (Iowa 1979); Frohwein v. Haesemeyer, 264 N.W.2d 792, 795-96 (Iowa 1978).

II. Agency Relationship. The trial court, in granting summary judgment in favor of American, stated the following:

2. Regarding the claim of Plaintiff in Division III of her Petition alleging that American Heritage was negligent, there is no genuine issue of fact that Kenneth Logston was an employee or agent of American Heritage at the time of his criminal acts, and the Court concludes as a matter of law in this regard that Defendant American Heritage could not accordingly be held vicariously liable for any criminal acts of the said Logston. (Emphasis added).

We disagree. There is ample evidence in this record to support a finding that Logston was an agent and under the control and clothed with the authority of both American and English. Whether he is an employee of either or both defendants is a factual question remaining to be decided by the factfinder. It is undisputed that Logston was engaged by English to install residential service connections to American's cable system. Logston's first contact with plaintiff was at the time Logston connected her television set to the cable system and installed the necessary equipment. Logston also presented a contract between American and plaintiff for her signature and requested and received payment for his installation service on behalf of American. His work was in furtherance of the service being performed by English for American. In addition, both English and American had the power to terminate Logston's authorization to install cable television services.

Viewing these facts in the light most favorable to plaintiff, a factfinder could reasonably determine that Logston was an agent or employee of both American and English. This conclusion is possible even though American claims a contractor-subcontractor relationship with English, and English claims that Logston was an independent contractor in his relationship with English and American. A person can be both an agent and an independent contractor. See Restatement (Second) of Agency §§ 2(3), 14N (1958).

III. Negligent Hiring. In two divisions of her petition, plaintiff claims that both American and English were guilty of negligently hiring Logston. Plaintiff urges us to adopt a cause of action based upon Restatement (Second) of Agency § 213 and the decisions of a large number of states. Section 213 provides as follows:

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:

a. In giving improper or ambiguous orders or in failing to make proper regulation; or

b. In the employment of improper persons or instrumentalities in work involving risk of harm to others; or

c. In the supervision of the activity; or

d. In permitting, or failing to permit, negligent or other tortious conduct by persons, whether or not his agents or servants, upon premises or with instrumentalities under his control.

Decisions of other states contain language to a similar effect. For example:

An employer who knew or should have known of his employee's propensities and criminal record before a commission of an intentional tort by an employee upon a customer who came to employer's place of business would be liable for damages to such customer.

Hersh v. Kentfield Builders, Inc., 385 Mich. 410, 412, 189 N.W.2d 286, 288 (1971).

There are no Iowa cases directly on point, and there is no definitive statement approving such a cause of action. Nevertheless, we believe that a negligent hiring cause of action does exist under Iowa law when the employer owes a special duty to the injured party. In Nesbit v. Chicago, Rock Island & Pacific Ry., 163 Iowa 39, 143 N.W. 1114 (1913), the court discussed the liability of an employer for the acts of its servants and stated:

[T]he modern doctrine is that, if the master owes an affirmative duty of protecting a party from injury, as a passenger upon a railway train, an occupant of a sleeping car, a guest of an inn, or any other person to whom the master owes an affirmative duty of protection, he is responsible for the wrongful, malicious, or tortious acts of its servants, although not done in the course of their employment....

The reason for these exceptions or apparent exceptions to the rule of nonliability, where the acts of the servant is not within the scope of his employment, actual or apparent, is that the master owed the person injured some special duty ..., and this exception has been applied in many cases where patrons of a carrier were assaulted by an employee thereof.

Id. at 50-52, 143 N.W. at 1119-20 (citations omitted). Although Nesbit actually considered whether the employee was acting within the scope of his employment, the Iowa Supreme Court applied the quoted rule of law in Fagg v. Minneapolis & St. Louis Ry., 175 Iowa 459, 462, 157 N.W. 148, 148-49 (1916) (passenger assaulted and beaten by brakeman), and Garvik v. Burlington, Cedar Rapids & Northern Ry., 131 Iowa 415, 418-19, 108 N.W. 327, 328 (1906) (passenger raped by brakeman). More recently, in Giarratano v. Weitz Co., 259 Iowa 1292, 147 N.W.2d 824 (1967), the court held that a construction company which contractually assumed a special duty to protect all workmen on a project could be liable for negligence even though the company hired an independent contractor to do the project. Id. at 1305, 147 N.W.2d at 832.

These Iowa cases are consistent with the development of the negligent hiring theory.

First it was held that employers could be liable to their employees for the failure to use care in the selection of coemployees. Later, the duty was extended to third parties if they stood in some special relation to the employer. This special relation included licensees, invitees, or customers of the employer. Thus, the courts were looking for some connection between the plaintiff and the employment of the wrongdoer. Note, The Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 Chi.-Kent L.Rev. 717, 721 (1979) (footnote omitted) (emphasis added).

Therefore, we conclude Iowa law allows a negligent hiring cause of action when the employer owed a special duty to the plaintiff.

Circumstantial evidence in this action could justify a factfinding that Logston obtained a master key to plaintiff's apartment through his employment and used that key when entering the apartment to attack plaintiff. There is evidence that the cable system was installed in plaintiff's locked apartment when she was absent. This evidence leads to the inference that the cable installers working for English had access to a master key to her apartment. Although Logston was admitted into the apartment by plaintiff when he connected her television to the cable system, there is circumstantial evidence that on the night of the attack Logston entered the apartment by using a key.

We conclude that this evidence of access to a master key through employment with English, if true, is sufficient to create a special duty owed to plaintiff. The court in Nesbit indicated a special duty inheres in the relationships between a railroad and a passenger of a railroad train or a sleeping car, and between an innkeeper and his guest. See 163 Iowa at 50, 143 N.W. at 1119. We believe the relationship between the tenant of an apartment and a company that uses master...