Gutzan v. Altair Airlines, Inc.

• Decision Date: 02 July 1985
• Docket Number: No. 84-1443,84-1443
• Citation: 766 F.2d 135
• Parties: Rosalie GUTZAN v. ALTAIR AIRLINES, INC. and Romac & Associates v. Joseph W. FARMER, the United States of America, Romac & Associates. Appeal of Rosalie GUTZAN.
• Court: U.S. Court of Appeals — Third Circuit

Page 135

766 F.2d 135

Rosalie GUTZAN v. ALTAIR AIRLINES, INC. and Romac & Associates v. Joseph W. FARMER, the United States of America, Romac & Associates.

Appeal of Rosalie GUTZAN.

No. 84-1443.

United States Court of Appeals Third Circuit.

Argued April 30, 1985.

Decided July 2, 1985.

James B. Crummett (Argued), James B. Crummett & Associates, P.C., Philadelphia, Pa., for appellant.

Marcy B. Tanker (Argued), Liebert, Short, FitzPatrick & Lavin, Philadelphia, Pa., for Romac & Associates.

Before SEITZ, WEIS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The plaintiff, an employee of Altair Airlines (Altair) who had been raped by a fellow employee, Joseph W. Farmer, sued Altair for damages. She also named as a defendant the employment agency, Romac & Associates (Romac), which had referred Farmer to Altair. Before the trial, plaintiff reached a settlement with Altair, and the case was tried to a jury in the United States District Court for the Eastern District of Pennsylvania against the employment agency alone. ¹

At trial, plaintiff requested jury instructions on negligent performance of services, negligent misrepresentation, reliance, and intervening negligent acts. The court refused to give the instructions as requested. The jury, which was not informed of the settlement between plaintiff and Altair, returned a verdict for plaintiff, and apportioned liability at ninety percent to Altair and ten percent to Romac. The district court granted Romac's motion for judgment notwithstanding the verdict on the ground that Romac had no duty to plaintiff at the time of her injury, and denied plaintiff's motion for a new trial. We reverse the entry of judgment notwithstanding the verdict.

I.

In September 1980, Joseph Farmer sought the services of Romac & Associates, a corporation engaged in the business of personnel consultation, and asked to speak with a counselor regarding a job as data programmer. He produced letters of reference from Wang Laboratories, Inc., and the United States Disciplinary Barracks in Ft. Leavenworth, Kansas.

Farmer told Romac counselor Ron Kovatis, who interviewed him, that he had been incarcerated in Fort Leavenworth because, while he was stationed in Germany, his German girlfriend had charged him with rape, and that it was a policy of military courts to appease foreign women who made such charges. The following month, Romac representative Robert Witkoski, told Robert Healy, Altair's data processing manager, that Romac had a candidate for a data processing position that Altair was trying to fill. Witkoski repeated to Healy the explanation Farmer gave of his criminal conviction, and sent Healy copies of Farmer's resume and letters of reference. Healy interviewed Farmer for the position of data processor in November 1980, and at the interview Farmer repeated to Healy the story of his criminal conviction that he had given Romac.

Prior to Farmer's interview at Altair, Kovatis telephoned Wang Laboratories and Fort Leavenworth to verify the authenticity of Farmer's references. No one at Romac inquired into the incident which led to Farmer's rape conviction, but Healy testified that Witkoski represented to him that Farmer's explanation had been verified by military officials.

After two more interviews, Altair hired Farmer in January 1981. Altair management decided that Farmer's prior conviction should not be divulged to Altair employees and to make no notations concerning the conviction on Farmer's personnel record.

During the course of Farmer's employment at Altair, two female employees complained to Healy about disturbing incidents involving Farmer. One incident involved Farmer lingering near a female executive after his work was done, until he was offered a ride home by an Altair vice-president. The second, more serious incident, involved a secretary, Nancy Rose Bohl, who testified that one morning in the summer of 1981, Farmer asked her to stop at his apartment to pick up some papers which he said her supervisor had requested. Farmer, who apparently had taken the day off because he claimed that he was not feeling well, had no papers ready when Ms. Bohl arrived. She testified that he was wearing a bathrobe when she entered his apartment and felt that he was staring at her. He kept her waiting a long time, and found some papers to give her only when she became frightened and told him her supervisor knew where she was and was waiting for her. When she returned to work, Bohl discovered that her boss had not expected to receive any papers from Farmer. She reported the incident to Healy, to Patrick Rodgers, an Altair vice-president, and to Bernard Alter, director of personnel, and was told by Rodgers to "keep quiet" about it.

In December 1981, Farmer raped plaintiff. Altair and Romac later discovered that Farmer's story regarding his prior conviction had been a fabrication, and that while in the Army he had been convicted of assaulting and raping a co-worker. Plaintiff filed suit for damages against Altair in January 1983, and in April 1983, Altair filed third-party complaints against Farmer, Romac, and the United States. Gutzan then amended her complaint to add Romac as a defendant. Plaintiff settled her claim against Altair before trial, but her suit against Romac proceeded to trial. The jury returned a verdict in her favor. ²

Romac filed a motion for judgment notwithstanding the verdict, which the district court granted. Gutzan then moved for a new trial and to set aside the judgment. The district court denied both motions, and plaintiff appealed.

II.

Plaintiff argues on appeal that she should be awarded a new trial because the district court erred in refusing to instruct the jury on negligent misrepresentation and negligent performance of an undertaking as set forth in sections 324A and 311 of the Restatement Second of Torts, ³ Altair's reliance on information supplied by Romac, and on superseding cause. The failure of the trial court to instruct the jury as requested does not constitute error so long as the instruction, taken as a whole, properly apprises the jury of the issues and applicable law. Service Merchandise Co. v. Boyd Corp., 722 F.2d 945, 950 (1st Cir.1983); Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir.), cert. denied, 432 U.S. 907, 97 S.Ct. 2952, 53 L.Ed.2d 1079 (1977).

Apparently, the trial judge concluded that the requested instructions were unnecessary. Although more specific and amplified instructions might have been desirable, we cannot say that the ones given were erroneous or improper. The trial judge pointed out to the jury the plaintiff's contention that Romac acted negligently "in failing to adequately investigate" Farmer's background, in failing to warn of his conviction for rape and his "propensity for such behavior."

The court charged that negligence constituted, inter alia, "the failure to use ordinary care under the circumstances in the management of one's person or property toward a person ... to whom you owe the duty of using ordinary care. Conduct which falls below that established as necessary for the protection of others ... from unreasonable risk of harm is negligent conduct."

Continuing in his instructions, the judge observed:

Everyone has a duty toward persons in certain relationship with them to protect those persons and their property from the unreasonable risk of harm. This is the duty not to act negligently, or to be negligent toward them. Both the act or omission, and the relationship to the person or property injured thereby, are important....

When the instant plaintiff claims that defendant was negligent ... she is saying, in legal terms, that defendant owed her the duty of ordinary care because of their relationship and that defendant breached that duty by acting or omitting to act in such a way that he failed to protect plaintiff from unreasonable risk of harm.

Still another way of measuring negligent behavior is to call negligent an act or omission that would be avoided by a reasonable man, properly considerate of the safety of others, under all the circumstances of this case.

After colloquy with counsel, the court also supplemented its charge with an instruction on the duty not to transmit false information.

Although the instructions are not a model of clarity and particularity, they do inform the jury of the duty one owes, by virtue of his relationship to a person, to protect that person from unreasonable risk of harm, and in this respect not to act negligently. The instructions explain the concepts of duty, negligence, negligent omission, proximate cause, and preponderance of the evidence. There is nothing in the charge that would lead the jury to conclude that one who negligently gives false information to a party may not be liable for physical harm to a third party caused by action taken by the recipient of the information in reasonable reliance on it. "As long as the instructions 'show no tendency to confuse or mislead the jury,' an appellate court will presume that the jury's verdict was reached in accordance with the law." Brown v. Ivarans Rederi A/S, 545 F.2d 854, 861 (3d Cir.1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Hunziker v. Scheidemantle, 543 F.2d 489, 498 (3d Cir.1976).

The failure to include the specific language of Restatement (Second) of Torts Sec. 311 (Negligent Misrepresentation Involving Risk of Physical Harm) and Sec. 324A (Liability to Third Person for Negligent Performance of Undertaking) does not constitute reversible error. The verdict of the jury demonstrates that it understood the duty owed by Romac, the personnel agency, to a third person (co-employee) for a negligent performance of its undertaking to the employer. The jury found both the employer and the personnel agency negligent. In so doing, it made, as the plaintiff concedes, "a factual determination that Romac had assumed a duty and intentionally or negligently misled Altair." Brief for...