Munroe v. Universal Health Services, Inc.

• Decision Date: 24 May 2004
• Docket Number: No. S04A0470.,S04A0470.
• Citation: 277 Ga. 861,596 S.E.2d 604
• Parties: MUNROE v. UNIVERSAL HEALTH SERVICES, INC.
• Court: Georgia Supreme Court

596 S.E.2d 604

277 Ga. 861

MUNROE v. UNIVERSAL HEALTH SERVICES, INC.

No. S04A0470.

Supreme Court of Georgia.

May 24, 2004.

Hertz, Link & Smith, Eric J. Hertz, Mark D. Link, Houston D. Smith III, for appellant.

Nall & Miller, Michael D. Hostetter, Adriane C. Yelton Sammons, Christine M. Stadler, Pennebaker & Zamora, Omar R. Mark Zamora, for appellee.

HUNSTEIN, Justice.

This case is before us after the Court of Appeals evenly divided over the negligent hiring/retention claim in the personal injury action brought by Christine Munroe against Universal Health Services, Inc., d/b/a Anchor Hospital Behavioral Health Systems.¹ Munroe alleged that shortly after she entered Universal's residential treatment facility as a patient, a mental health assistant named Shawn Love employed by Universal made inappropriate comments to her; that he came to her room and made sexual advances which ended when Munroe's roommate interrupted him; and that he returned in the evening, administered medication to her that left her incapacitated and then raped her. The trial court granted summary judgment to Universal on the negligent hiring/retention claim after finding that Universal exercised ordinary care in the hiring process and that dishonest information in Love's employment application did not put Universal on notice that he had a propensity to commit sexual assaults. Although we disapprove the foreseeability standard employed by the trial court, we conclude under the correct standard that summary judgment on Munroe's negligent hiring/retention claim was proper.

1. An employer "is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency." OCGA § 34-7-20. See also Restatement (Second) of Agency, § 213 (person who conducts an activity through servants or other agents is "subject to liability for harm resulting from his conduct if he is negligent or reckless: ... (b) in the employment of improper persons ... in work involving risk of harm to others"). Thus, the appellate courts have recognized that an employer may be liable for hiring or retaining an employee the employer knows or in the course of ordinary care should have known was not suited for the particular employment.² E.g., Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233(2), 378 S.E.2d 857 (1989); Patterson v. Southeastern Newspapers, 243 Ga.App. 241, 245, 533 S.E.2d 119 (2000).

When an incompetent employee is hired for a particular position, it is reasonably foreseeable that such employee may injure others in the negligent performance of the duties of that position and accordingly an employer may be held liable for injuries caused by the negligent performance of the incompetent employee where evidence shows the employer knew or should have discovered that incompetency. See, e.g., Piney Grove Baptist Church v. Goss, 255 Ga.App. 380(2), 565 S.E.2d 569 (2002); Georgia Electric Co. v. Smith, 108 Ga.App. 851, 854(1), 134 S.E.2d 840 (1964). However, absent a causal connection between the employee's particular incompetency for the job and the injury sustained by the plaintiff, the defendant employer is not liable to the plaintiff for hiring an employee with that particular incompetency. See Kelley v. Baker Protective Svcs., 198 Ga.App. 378, 401 S.E.2d 585 (1991).

In Henderson v. Nolting First Mortgage Corp., 184 Ga. 724, 737, 193 S.E. 347 (1937), a negligent retention case, this Court stated that

in order that a party may be liable as for negligence, "it is not necessary that he should have contemplated or even be able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient if, by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected." [Cits.]

Id. at 737, 193 S.E. 347. Consonant with general tort principles, we clarified in Harvey Freeman & Sons, supra, that an employer may be held liable only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee's "tendencies" to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff. Id. at 234(2), 378 S.E.2d 857.

Pursuant to Harvey Freeman & Sons and Henderson, supra, we hold that a defendant employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee's "tendencies" or propensities that the employee could cause the type of harm sustained by the plaintiff. "The employer is subject to liability only for such harm as is within the risk." Restatement (Second) of Agency, § 213 Comment (d). Thus, we reject Munroe's "but for" argument that Universal is liable for the negligent hiring or retention of Love solely because his employment by Universal provided Love with the access or opportunity to injure her. Rather, the relevant question is whether Universal knew or in the exercise of ordinary care should have known that Love, the employee it hired and retained to perform duties involving personal contact with medicated, vulnerable patients, was unsuitable for that position because he posed a reasonably foreseeable risk of personal harm to patients like Munroe. Similarly, we disapprove contrary language in those opinions relied upon by Universal for the proposition that to prevail on a negligent hiring/retention claim, a plaintiff must show the defendant employer knew or should have known of an employee's propensity to commit the tortious or criminal act that caused the plaintiff's injury. See, e.g., Walter Champion Co. v. Dodson, 252 Ga.App. 62(1), 555 S.E.2d 519 (2001); Harper v. City of East Point, 237 Ga.App. 375(2), 515 S.E.2d 623 (1999); Edwards v. Robinson-Humphrey Co., 164 Ga.App. 876(3), 298 S.E.2d 600 (1982). " Such a restrictive and inflexible approach does not square with common sense or tort law, and represents a significant departure from precedent of this Court. [Cits.]" Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997) (rejecting a similarly narrow approach to foreseeability in premises liability cases).³ See Harvey Freeman & Sons and Henderson, supra. 2. "The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. [Cit.]" Robinson v. Kroger Co., 268 Ga. 735, 739, 493 S.E.2d 403 (1997). By granting summary judgment to Universal, the trial court concluded as a matter of law that the evidence was sufficient to demand a finding that Universal had exercised due care in hiring Love and that no question of material fact remained for a jury. In support of the trial court's ruling, Universal points to evidence that it used a private investigation company called ChoicePoint to investigate Love's background⁴ and that after conducting a seven-year criminal record search on Love in the two counties where Love indicated he had lived and worked, Choicepoint reported that "no record [was] found" in either county.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). "On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cits.]" Youngblood v. Gwinnett Rockdale, &c. Svc. Bd., 273 Ga. 715, 717(4), 545 S.E.2d 875 (2001). Construing the evidence in favor of Munroe, our review of the record reveals that Universal received information from ChoicePoint prior to the sexual assault on Munroe that the high school where Love allegedly graduated could not locate any enrollment records for him for the years 1979 and 1980;⁵ that Love had misrepresented to his own benefit the reason why he had been fired by a previous employer;⁶ and that ChoicePoint had been unable to confirm the existence of two prior employers listed by Love or any details of Love's alleged employment at these businesses, one of which had operated the facility where Love gained the personal care experience Universal...