Evans v. Morsell

• Decision Date: 19 December 1978
• Docket Number: No. 166,166
• Citation: 284 Md. 160,395 A.2d 480
• Parties: Joseph EVANS v. James Robert MORSELL t/a Fairfield Liquors.
• Court: Maryland Court of Appeals

Page 160

284 Md. 160

395 A.2d 480

Joseph EVANS v. James Robert MORSELL t/a Fairfield Liquors.

No. 166.

Court of Appeals of Maryland.

Dec. 19, 1978.

Morris Mazelis, Baltimore, for appellant.

Robert K. Nead, Baltimore, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ^* ELDRIDGE, ORTH and COLE, JJ.

ELDRIDGE, Judge.

We issued a writ of certiorari in this case in order to consider the principles applicable to an action against an employer based upon the alleged negligent hiring or retention of an employee.

The plaintiff Joseph Evans brought this action for compensatory and punitive damages for personal injuries which he sustained as a result of being shot by a bartender in a tavern owned by the defendant. The plaintiff alleged in his declaration that he entered the defendant's establishment "as a customer and invitee," that he was acting in a peaceful manner when he was "maliciously shot with a twelve gauge shotgun" by the bartender, Jessie Hopkins, and that the defendant "knew or should have known of the vicious propensities" of his employee Hopkins because of the latter's "past record of criminal assaults." The plaintiff went on to assert that the defendant tavern owner breached his duty to the plaintiff, a customer, "by employing a person of the character of Jessie Hopkins, in a sensitive position as that of bartender, and permitting him access to a dangerous weapon." The case was tried before a jury in the Superior Court of Baltimore City, and, at the close of all of the evidence, the trial judge granted the defendant's motion for a directed verdict.

The evidence at the trial was as follows. ¹ The plaintiff testified that on the evening of April 27, 1973, he entered the defendant's tavern, went to the bar, and asked the bartender Hopkins for some beer. According to plaintiff, he was refused service by the bartender, and later by the defendant owner, on the ground that previously he had allegedly brought beer into the bar from someplace else. After being denied service, the plaintiff talked a while with some other customers and then left the tavern. Later that evening, the plaintiff came back to the tavern and, as he testified:

"(The Witness) So when I come back in I plucked my fingers to the music and so forth.

"(The Court) You did what?

"(The Witness) I was snapping my fingers to the music. When I look up the bartender is aiming a shotgun at me. So I just stood there. Then he got a wild look in his face so I threw my arm across my head and started spinning and I got hit . . . in my arm and got hit in my stomach . . . , and I ran to the door. When I reached for the door that's when he shot me in my upper thighs and leg."

The plaintiff was able to escape from the tavern, and someone outside took him to a hospital. The bartender Hopkins was later convicted of assault and sentenced to twelve years' imprisonment.

The plaintiff testified that he did nothing to provoke the bartender and that he never had any arguments with him, although Hopkins "had a few words with me the day before." The plaintiff also testified that he was a regular patron of the defendant's tavern and that he had seen Hopkins "drunk and arguing with other customers" on several occasions before this. However, he did not testify to any facts indicating that the owner was present on such occasions or had any knowledge of his employee's arguing with other customers.

The evidence further showed that the defendant had purchased the tavern in November 1972, and had hired Hopkins as a bartender in December 1972. At that time, Hopkins had a significant criminal record, with several convictions for assault all in the 1950's and 1960's. The defendant was not aware of this, and made no inquiry of Hopkins concerning a possible criminal record.

Hopkins had worked for the prior owner of the tavern for eighteen months as a bartender. The prior owner testified that Hopkins, although he would occasionally "go on a drunk," never got drunk in the tavern, was a "good worker," was "honest" and had never assaulted anyone or had fights with anyone in the tavern. The former owner of the tavern also testified that when he sold the business to the defendant, the defendant inquired about previous employees, and the witness recommended Hopkins as a good worker and a person whom the defendant should employ. Additionally, the former owner testified that he had been in the tavern business for about ten years, that he had known other tavern owners in the area, and that there was no practice among the owners to inquire concerning the possible criminal records of persons who were applying for positions as bartenders.

The defendant testified that he had been a Baltimore City police officer for seventeen years before leaving the police force and purchasing the tavern in November 1972. While he was a police officer, he had known Mr. Hopkins and never had any difficulty with him. The defendant confirmed that before employing Hopkins, he had inquired of the former owner of the tavern, and the former owner told him that Hopkins was a "good worker." The previous owner did not tell him that he had ever had any difficulty with Hopkins or that Hopkins had ever been involved in an altercation in the bar. Additionally, the defendant testified that between the time that he had hired Hopkins and the shooting on April 27, 1973, he was aware of no fights with customers or any other actions by the bartender that would lead him to believe that such a shooting might take place. The defendant kept the shotgun in a back room directly behind the bar because he kept a large amount of cash on hand for check cashing purposes.

Finally, the records supervisor in the Central Records Division of the Baltimore City Police Department testified that in 1972, if an employer wanted the criminal record of an employee or prospective employee, the employer could not get it himself, but he could require the employee or prospective employee to obtain it. If he did, the Police Department would furnish the employee or prospective employee with a certified copy of his criminal record or a letter stating that he did not have a criminal record.

After the presentation of all of the evidence, during the argument on the motion for a directed verdict, the plaintiff's position was that in the type of business here involved, with regard to a prospective employee who will come into contact with the public, it is incumbent on an employer to inquire concerning the prospective employee's criminal record. The trial judge, rejecting this contention, granted the motion for a directed verdict. From the judgment on the verdict in favor of the defendant for costs, the plaintiff took an appeal. Prior to a hearing in the Court of Special Appeals, we issued a writ of certiorari. The plaintiff argues here, as he did below, that under circumstances such as existed in this case, the defendant breached a duty to the plaintiff by not inquiring about Hopkins's criminal record before hiring the bartender. ²

Long ago this Court recognized, prior to the enactment of the Workmen's Compensation Act and in the somewhat different context of an employee injured by the alleged negligence of a drunken co-worker, that in hiring and retaining someone, an employer owes a duty to his other employees and to the general public to use reasonable care. Judge McSherry thus stated for the Court in Norfolk and Western Railroad Co. v. Hoover, 79 Md. 253, 262, 29 A. 994 (1894):

"But he owes to each of his servants the duty of using reasonable care and caution in the selection of competent fellow servants, and in the retention in his service of none but those who are. If he does not perform this duty, and an injury is occasioned by the negligence of an incompetent or careless servant, the master is responsible to the injured employe, not for the mere negligent act or omission of the incompetent or careless servant, but for his own negligence in not discharging his own duty towards the injured servant. As this negligence of the master must be proved, it may be proved like any other fact, either by direct evidence or by the proof of circumstances from which its existence may, as a conclusion of fact, be fairly and reasonably inferred. That drunkenness on the part of a railroad employe renders him an incompetent servant will scarcely be disputed; nor can it be questioned That a master who knowingly employs such a servant, or who, knowing his habits, retains him in his service, would be guilty of a reckless and wanton breach of duty, not only to the public, but to every employe in his service." (Emphasis supplied.)

The Court went on to point out that there is a rebuttable presumption that an employer uses due care in hiring an employee, and that this presumption may of course be overcome by direct or circumstantial evidence. 79 Md. at 263, 29 A. 994, 995. The Court also indicated that the employer's failure to make a proper inquiry may under some circumstances constitute negligence itself. Ibid.

Similar principles have been applied by the courts in cases like the one at bar, involving intentional torts committed by employees or other agents upon members of the public. A critical standard here is whether the employer knew or should have known that the individual was potentially dangerous. As stated by the Supreme Court of New York, Appellate Division, in Vanderhule v. Berinstein, 285 App.Div. 290, 136 N.Y.S.2d 95, 100 (1954):

"The ultimate duty of the defendants, for a breach of which the defendants could be held liable, was the duty to refrain from hiring or retaining anyone whom they knew or, in the exercise of reasonable care, they should have known was potentially dangerous."

And as pointed out by the court in Fleming v. Bronfin, 80 A.2d 915, 917 (D.C.Mun.App.1951):

"One dealing with the public is bound to use reasonable care to select employees competent and fit for the work assigned to them and to refrain from...