Doe v. Atc, Inc.

Decision Date19 December 2005
Docket NumberNo. 4063.,4063.
Citation624 S.E.2d 447
CourtSouth Carolina Supreme Court
PartiesSharon DOE, as Special Conservator for her daughter, Audra Doe, 2003-CP-23-2255, Appellant, v. ATC, INC., Transportation Management Services, Inc., and Multisystems, Inc., Respondents. Sharon Doe, as Special Conservator for her daughter, Audra Doe, 2003-CP-23-2256, Appellant, v. Calvin Murray, Respondent.

John Robert Peace, of Greenville, for Appellant.

Maureen Z. White, of Greenville and Michael H. Montgomery, of Columbia, for Respondents.

KITTREDGE, J.:

This is an appeal from the granting of a directed verdict in a negligent retention action. The dispositive issue, as narrowly framed in the trial court, is whether a jury question existed as a result of the employer's decision not to fire an employee based on the report of a single incident of an inappropriate sexual advance toward a fellow employee. We agree with the trial court that a jury question was not created by the employer's decision to retain the employee. We affirm.

FACTS1

Appellant Sharon Doe2 is the mother of Audra Doe, a disabled adult female. Audra rode a Medicaid bus to physical therapy sessions and to Greenville Memorial Hospital, where she did volunteer work. Calvin Murray, an employee of Respondents (collectively "ATC") drove the Medicaid bus on which Audra sometimes rode. While Audra was on the bus, Murray repeatedly touched her legs inappropriately, kissed her and made persistent comments to her of a sexual nature over a period of several months.

Doe filed separate lawsuits on behalf of Audra against Murray and ATC. These suits were consolidated and tried together. Doe's claim against ATC was based on a negligent retention theory.3

The trial court directed a verdict in favor of ATC. The action against Murray resulted in a jury verdict of $1,000. Doe appeals only from the direction of a verdict in favor of ATC, and there is no challenge in connection with the action against Murray. Concerning the negligent retention theory of liability against ATC, Doe contended that Murray should have previously been fired due to an earlier, isolated incident involving a fellow employee, Tycie Moss.

Moss testified that several months before the incidents involving Audra, Murray made an inappropriate advance toward her. Moss's car had broken down, so Murray picked her up before her shift, around 3 or 4 o'clock in the morning. Moss got out of Murray's van and, as she was getting into her van, Murray approached her, and "then grabbed [her] arms . . . like he was forcing [her] to kiss him." Moss pushed him away before he could kiss her, got into her van, and left. Moss also testified that Murray made inappropriate sexual comments to her in the presence of clients on the van.

Moss reported the incident to her supervisor, Hattie Wright. Moss, however, told Wright not to write up a formal complaint against Murray because she "didn't want it to blow up." ATC had a formal complaint procedure that provided for an investigation of a complaint, but Moss refused to file a complaint. In fact, Moss did not want Wright "to do anything about [the incident]." Wright said that Moss wanted her disclosure to remain in confidence, noting that Moss did not want Wright to "say anything to anyone."

Wright ignored Moss's wishes and pursued the matter the same day, initially by speaking with Murray. Murray gave "his side" and said the incident was not as "interpreted." Without an admission from Murray and the lack of a formal complaint, Wright nevertheless issued Murray a verbal warning, instructing him to "keep [his] distance" and to "do [his] job." Also on the same day, Wright discussed the incident with her supervisor, Audlyn Williams, who was the manager in charge of the Greenville office. Williams believed that in light of Murray's otherwise laudable employment record — he "never had a [problem] before" — Wright's actions were appropriate. Wright subsequently prepared a memorandum for the file regarding the incident.

It is undisputed that ATC — prior to Doe's complaint on behalf of Audra — had no other knowledge of inappropriate conduct of any kind by Murray.

After Doe filed her complaint, Williams and Wright notified Melville Padgett, the general manager for ATC's Medicaid properties in South Carolina. Padgett testified he was satisfied with Wright's earlier actions because prior to the present action Murray had a "clean record" except for the single incident reported by Moss. Following Doe's complaint, Murray admitted making an inappropriate comment to Audra on the bus, and Padgett fired him.

The Directed Verdict Motion

ATC moved for a directed verdict, and the trial court engaged in a lengthy discussion with Doe's counsel in an effort to determine the precise allegation of negligence against ATC. Specifically, it was not clear what Doe claimed ATC should have done differently following the reported incident involving Moss. The answer eventually surfaced:

THE COURT: So they would have to have fired him [following the report by Moss]?

[DOE'S COUNSEL]: Yes, sir.

The trial court, as noted, directed a verdict in favor of ATC.

STANDARD OF REVIEW

In reviewing a motion for directed verdict, the appellate court applies the same standard as the circuit court. Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct.App.2000). The court must view the evidence and the inferences that can reasonably be drawn in the light most favorable to the nonmoving party. Sabb v. South Carolina State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002). If the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created and the motion should be denied. Adams v. G.J. Creel & Sons, Inc., 320 S.C. 274, 277, 465 S.E.2d 84, 85 (1995); Bailey v. Segars, 346 S.C. 359, 366, 550 S.E.2d 910, 913 (Ct.App.2001).

LAW/ANALYSIS

Doe argues that ATC negligently retained Murray by failing to fire him following the report by Moss. The issue before us, as framed in the trial court and stipulated at oral argument, is a narrow one — was a jury question presented on Doe's theory of liability that ATC was negligent in not firing Murray following the attempted kissing incident involving a fellow employee? We join the circuit court in answering the question "no."

We have canvassed the record and conclude that ATC's decision not to fire Murray following the incident with Moss was reasonable as a matter of law. Doe makes no claim that ATC's supervision of Murray was negligent following the incident with Moss. Cf. Degenhart v. Knights of Columbus, 309 S.C. 114, 116-17, 420 S.E.2d 495, 496 (1992) (recognizing the tort of negligent supervision in South Carolina law); Moore by Moore v. Berkeley County School Dist., 326 S.C. 584, 590, 486 S.E.2d 9, 12-13 (Ct.App.1997) (examining negligent supervision case law since Degenhart).4 We can find no South Carolina case on point, and none has been cited. South Carolina, indeed, recognizes the tort of negligent retention in the context of a negligent supervision action. We have no pause in concluding our supreme court would recognize the tort of negligent retention, independent of allegations of negligent supervision. See e.g., Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn.Ct.App.1993) (holding that negligent hiring and negligent retention are distinct theories of recovery separate from negligent supervision). In addressing the law of negligent supervision, our supreme court has cited with approval the Restatement (Second) of Torts § 317 (1965). Degenhart, 309 S.C. at 116-17, 420 S.E.2d at 496. Comment c to section 317 of the Restatement (Second) of Torts deals specifically with the retention of employees, and provides, in relevant part:

c. Retention in employment of servants known to misconduct themselves. There may be circumstances in which the only effective control which the master can exercise over the conduct of his servant is to discharge the servant. Therefore the master may subject himself to liability under the rule stated in this Section by retaining in his employment servants who, to his knowledge, are in the habit of misconducting themselves in a manner dangerous to others.

Our review of negligent hiring and retention cases from other jurisdictions leads us to conclude that such cases generally turn on two fundamental elements — knowledge of the employer and foreseeability of harm to third parties. Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508, 516 (1982). These elements, from a factual perspective, are not necessarily mutually exclusive, as a fact bearing on one element may also impact resolution of the other element. From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused. Such factual considerations — especially questions related to proximate cause inherent in the concept of foreseeability — will ordinarily be determined by the factfinder, and not as a matter of law. Hoke v. May Dep't Stores Co., 133 Or.App. 410, 891 P.2d 686, 691 (1995); Gaines v. Monsanto Co., 655 S.W.2d 568, 571 (Mo.Ct.App.1983). Nevertheless, the court should dispose of the matter on a dispositive motion when no reasonable factfinder could find the risk foreseeable or the employer's conduct to have fallen below the acceptable standard. Hoke, 891 P.2d at 690; Reed v. Kelly, 37 S.W.3d 274, 278 (Mo.Ct.App.2000). We...

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