Nigg v. Patterson

• Decision Date: 20 December 1990
• Citation: 226 Cal.App.3d 551,276 Cal.Rptr. 587
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 226 Cal.App.3d 551, 233 Cal.App.3d 171 226 Cal.App.3d 551, 233 Cal.App.3d 171, 59 USLW 2429, 6 IER Cases 65 Denise NIGG, Plaintiff and Appellant, v. Dennis PATTERSON, etc., Defendant and Respondent. Civ. C005984.

Page 587

276 Cal.Rptr. 587

Previously published at 226 Cal.App.3d 551, 233 Cal.App.3d 171

226 Cal.App.3d 551, 233 Cal.App.3d 171, 59 USLW 2429,

6 IER Cases 65

Denise NIGG, Plaintiff and Appellant, v. Dennis PATTERSON, etc., Defendant and Respondent.

Civ. C005984.

Court of Appeal, Third District, California.

Dec. 20, 1990.

Review Granted March 14, 1991.

Mike Ewing and Bronson, Bronson & McKinnon, Lakeport, for plaintiff and appellant.

Steven R. Enochian, Sandra L. Johnson and Moss & Enochian, Redding, for defendant and respondent.

DAVIS, Associate Justice.

INTRODUCTION

Following a request at a Rotary Club luncheon by the director of a state-licensed residential treatment center known as Stepping Stones, defendant Dennis Patterson agreed to hire Stepping Stones juvenile residents at his business, The Laundromat. Among those hired to work at The Laundromat was Daniel Durrett. Durrett was placed at Stepping Stones by San Diego County while on probation following a burglary. He had also been charged with molesting a four or five-year-old girl. On January 22, 1986, while working at The Laundromat, Durrett severely beat plaintiff Denise Nigg in the head and face with his fists and a hammer. ¹

Nigg sued Patterson for negligently hiring Durett. Defendant's motion for summary judgment was granted based on the trial court's belief that the principles in Cardenas v. Eggleston Youth Center (1987) 193 Cal.App.3d 331, 238 Cal.Rptr. 251, applied. Cardenas held that a state-licensed group home provider owed no duty of care to members of the general community for the criminal conduct of its residents. The issue before us is whether an employer's common law duty to hire competent, nonvicious employees applies where an employee is hired pursuant to an agreement with a private rehabilitative service or whether public policy concerns for fostering "innovative release and rehabilitation programs for criminal offenders" mandate that no such duty be imposed.

We reverse. An employer's duty to select competent employees is not abrogated because employees are hired in connection with a job program operated by a private rehabilitative center. Whether defendant fulfilled his duty by relying on the screening procedures of the private rehabilitative agency is a question of fact for the jury. Sufficient evidence of negligent hiring and foreseeability of harm was presented to defeat defendant's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

By Second Amended Complaint, ² plaintiff sued Dennis Patterson, individually and doing business as The Laundromat, and Daniel Durrett for personal injuries. Plaintiff alleged that Patterson entered into an arrangement with Stepping Stones to hire juvenile criminal offenders who resided at Stepping Stones and that Durrett had a "history and propensity for heavy drug use, extreme violence, and bizarre sexual attacks." It further alleged that Patterson either knew Durrett was incompetent to work at The Laundromat at night or negligently failed to exercise ordinary care in investigating Durrett's background to learn of his vicious disposition.

Defendant moved for summary judgment on the grounds that respondeat superior was inapplicable to the facts of the case and that defendant owed plaintiff no duty of care. In support of his motion, defendant submitted excerpts from his own deposition as well as from those of Daniel Durrett, Stepping Stones' director Neal These excerpts revealed that the purpose of Stepping Stones is to provide independent living skills to youngsters who will soon be released back to the community. Sternberg had requested members of the Rotary Club to provide positions for their residents "so they don't [sic] be a burden on the state or on themselves." ³ He and defendant had discussed having Stepping Stones juveniles come to work at The Laundromat to clean in the evenings. Defendant paid Stepping Stones $300 per month which was then split among the residents who worked there, with no money going to Stepping Stones.

Sternberg, and Durrett's primary Stepping Stones counselor, Vincent Maciorski.

The initial selection process of juveniles suitable for employment was done without the participation of prospective employers. Residents were determined suitable for employment by program social workers based on an evaluation of established priorities. These included the residents' ability to be in the community and at no risk to the community; their age; and their ability to be successful within the group home as demonstrated by their behavior and level. Residents' privileges and release were also determined by their success in the group home. Due to confidentiality laws, very little background information about a juvenile would be given to an employer. No specifics about crimes committed would be provided nor would a psychological survey be given an employer.

Durrett was scheduled for release within three months. His placement was "for independent living skills and emancipation". He had never been charged with a criminal offense involving hitting, striking or harming anyone. He hit the plaintiff without any provocation or plan.

Maciorski testified that Sternberg pressured the staff to fill defendant's job shifts. Although a formal interview process with defendant was initiated, it eventually "started to be like bodies being filled in...." Durrett was hired and pulled off the job by Stepping Stones staff several times for drug use and unaccountability. To ensure responsibility, Stepping Stones counselors would make an unannounced check at The Laundromat at least once a night.

Patterson testified that Stepping Stones workers locked up the Laundromat every night at 10:30.

In opposition to the motion, plaintiff submitted excerpts from these same depositions which indicated that, according to Sternberg, defendant would have the final decision on who worked at The Laundromat. ⁴ He informed defendant that the majority of Stepping Stones youngsters came from a background of incest, molest or severe physical abuse and that most were "300-series" wards of the court. He also explained that, while some of the juveniles were in a probation program, this was based on a history of dependency or neglect. He told defendant that "the likelihood for any risk would be very small".

Sternberg was sure that, due to confidentiality laws, defendant never reviewed any psychological reports concerning Durrett prior to placement. He is "likely" to have told defendant that Durrett was on probation but not the nature of that probation.

Defendant understood that the residents at Stepping Stones were people with family problems. He did not learn that any of the residents had committed crimes or were on probation. The arrangement with Stepping Stones was for someone to clean, watch and lock up The Laundromat six hours a day, seven days a week for $300 per month. He originally interviewed between 5 and 10 prospective employees. During the interview, he explained the nature of what he expected. Once the residents were hired, he would occasionally stop by The Laundromat and talk to them. He would give them instructions on how to clean the store.

Although defendant knew that the residents he initially hired were replaced by Stepping Stones, he never interviewed any of the replacements. He informed Sternberg that he "didn't want any troublemakers", but he did not recall asking anyone if they had a background as a troublemaker.

Durrett had been "in trouble" since age 13 when he ran away from his foster home. In 1983, he was put on probation after being caught acting as a look-out for a commercial burglary. He was charged with theft of cigarettes in 1984. When he was 15, he was charged with lewd touching of a four or five-year-old girl. He had not been arrested for any other sexual offenses. Prior to being placed with Stepping Stones, Durrett escaped from a county juvenile facility. He had gotten into one fight with another inmate while at Stepping Stones.

Durrett had spoken only casually with Sternberg. Before he began work at The Laundromat, his counselors talked to him about it but he was never interviewed by Sternberg or by defendant. After being taken off the job by Stepping Stones, he "earned" his way back to the job by "being responsible." His attack on plaintiff occurred on his second day back to work. He spoke to defendant at The Laundromat at least three times, but never discussed his criminal background. If defendant had asked him about his past, Durrett would have told him.

Durrett had a love-hate relationship with his mother. He had told Maciorski that he hated her and was mistreated by her. Sternberg believed that the psychological study performed on Durrett before he came to Stepping Stones showed that he had a potential for acting-out hostility and that he hated his mother. He did not recall that this hatred was generalized toward women.

Maciorski had been told by Durrett's prior therapist that he had been involved in a molestation. Prior to Durrett's attack on plaintiff, Maciorski learned that he had brandished a knife at someone and that Durrett had a history of drug abuse. Maciorski had also been told by a female Stepping Stones resident that Durrett "was real inappropriate with her at school, and that he was coming on really strongly sexually." Several other women counselors and friends had told him that Durrett interacted with them in a disturbing, "leching [sic] sexualized" manner. Maciorski stated that, as to violent behavior, Durrett was "a time bomb". He also confirmed that defendant originally interviewed prospective applicants with Sternberg but that Durrett was never interviewed by defendant. Durrett was pulled off the job after being caught with drugs, which were available in the general vicinity of The Laundromat. Even knowing Durrett's history, Maciorski would have recommended him for the job.

Due to confidentiality concerns, Maciorski would not have...