Ponticas v. KMS Investments, C7-81-1026.

• Decision Date: 25 March 1983
• Docket Number: No. C7-81-1026.,C7-81-1026.
• Citation: 331 NW 2d 907
• Parties: Stephanie PONTICAS, et al., Respondents, v. K.M.S. INVESTMENTS, et al., Appellants, Lakeview Realty, Inc., Defendant.
• Court: Minnesota Supreme Court

331 N.W.2d 907 (1983)

Stephanie PONTICAS, et al., Respondents, v. K.M.S. INVESTMENTS, et al., Appellants Lakeview Realty, Inc., Defendant.

No. C7-81-1026.

Supreme Court of Minnesota.

March 25, 1983.

Lommen Nelson, Sullivan & Cole, V. Owen Nelson and Phillip A. Cole, Minneapolis, for appellants.

Lawrence D. Olson and Bruce D. Peck, St. Paul, for Stephanie Ponticas, et al.

Heard, considered and decided by the court en banc.

KELLEY, Justice.

The appellants, the owner and the operator of a residential apartment complex, were found negligent by jury verdict in the hiring of a resident manager who violently sexually assaulted one of the female tenants of the complex. They appeal from the Hennepin County District Court's order for entry of judgment which awarded the tenant damages for personal injuries and her husband damages for loss of consortium. We are called upon first to determine whether Minnesota recognizes a tort action creating liability on an employer for negligence in hiring an employee; second, if so, whether in this case the evidence was sufficient to sustain the jury's verdict that appellants had breached that duty; and, third, whether criminal assaultive actions of the employee under the circumstances of this case could be considered a superseding intervening cause of respondents' damages so as to relieve appellants from liability.¹ We affirm.

In 1978, appellant K.M.S. Investments owned an apartment complex known as Driftwood Apartments. This complex was managed by appellant Skyline Builders. In May of 1978, respondents Stephanie and Jorge Ponticas moved into a ground floor apartment in the Driftwood Apartment complex. On or about the 1st of August of that year, Dennis Graffice was employed as apartment manager by appellant Skyline Builders. As apartment manager, Graffice had general supervision over 198 apartment units. He was issued a passkey that would afford him admission into all units. On September 8, 1978, Stephanie Ponticas noticed that her refrigerator was not functioning properly and notified Graffice, who came to the apartment. Jorge Ponticas, Stephanie's husband, was a musician. When Graffice was in the apartment on September 8, he made the observation to Stephanie Ponticas that he had not seen Jorge for some time. In response, she informed him that Jorge was out of town for the week on a band job in northern Minnesota. In the early morning hours of Sunday, September 10, she was violently raped at knifepoint by a person whom she recognized to be Dennis Graffice. During the course of the sexual assault, he attempted to strangle her. Following the assault, she escaped from the apartment through a broken window and reported the incident to police. Dennis Graffice was subsequently arrested and convicted of sexual assault in the first degree and was sentenced to Stillwater State Prison. Stephanie and Jorge Ponticas commenced this lawsuit against the appellants K.M.S. Investments and Skyline Builders, alleging that they were negligent in the hiring of Dennis Graffice as manager of the Driftwood Apartments, and that as a direct result of such negligent hiring Stephanie sustained personal injuries of a physical and psychological nature and Jorge sustained damages as a result of loss of consortium.

In 1978, Dennis Graffice was 25 years old. When he was 19, he joined the Army and served 14 months until November 3, 1973, when he received a general discharge. After his discharge from the Army, he lived in California. While in California, he was charged with burglary and receiving stolen property and convicted of the latter in 1974 and served 4½ months in jail. Shortly after his release from jail, he moved to Colorado. There he was charged with two counts of armed robbery, two counts of burglary, three counts of theft and one count theft of auto parts. As a result of plea negotiations, he was convicted of armed robbery and burglary and sentenced to prison. He was released from prison in Colorado in June of 1977 and returned to California where he lived for approximately 6 months working self-employed as operator of a tree service. In January of 1978, he, his wife and child moved to Minnesota. He obtained a job as a driver for the Spring Lake Park School Bus Company. He and his wife were also caretakers for a 24-unit apartment building where they then lived. He was "fired" from the bus company after only a month and a half for drinking on the job and apparently had also had a fight with his supervisor. In March of 1978, he got a job as a line foreman at Carter's Car Wash where his wife also worked part-time. In June of 1978, Skyline Builders placed an advertisement in the newspaper for a resident manager for the Driftwood Apartment complex. The resident manager's duties included showing and renting apartments, taking care of small repairs and other tenant complaints and overseeing other employees and generally insuring a smooth operation. Graffice and his wife answered the ad that had been placed in the newspaper and completed the standard form of application. Delores Swanson, the property manager for Skyline Builders and the person solely responsible for hiring apartment employees, interviewed the Graffices. Later, a credit check of the Graffices was made in Minnesota and in California. It was normal for Skyline Builders to make a check on the named references, either by telephone or by mail. In the case of the Graffices, Mr. Graffice had put down on his application form two names as references, one of which did not have an address and neither of which had telephone numbers. As it turned out, the two names given were his mother and sister who resided in California. Originally, the Graffices were not the successful applicants for the vacancy. The couple that had been chosen to take over the management notified Skyline Builders that they no longer desired to do so, whereupon the Graffices were called and given 20 minutes within which to give a "yes" or "no" answer. They agreed and were hired without further investigation.

On the initial application form, Dennis Graffice indicated that he had been convicted of a crime but he described the crime as "traffic tickets." Ms. Swanson did not inquire further. She did not consider violation of traffic laws to be a crime. In fact, at the time of the application Graffice was on parole following his Colorado conviction and was being supervised by the Minnesota Department of Corrections under the interstate compact. At the trial, Graffice testified he did not voluntarily disclose his felony convictions because he wanted the job, and he further testified that if he had been asked to sign an authorization releasing his criminal record he would have refused and no longer sought the job. He also corroborated that he was never questioned about his response to that question on the application. Ms. Swanson also testified she would not have hired Dennis Graffice had she been aware of his criminal record.

1. At the outset, we must determine whether, in a tort action, a person may recover from an employer if the person was injured by a negligently hired employee. We have recognized that a person injured by a negligently retained employee may recover damages from the employer. Porter v. Grennan Bakeries, 219 Minn. 14, 16 N.W.2d 906 (1945);²Travelers Indemnity Co. v. Fawkes, 120 Minn. 353, 139 N.W. 703 (1913); Dean v. St. Paul Union Depot, 41 Minn. 360, 43 N.W. 54 (1889).³ The origin of the doctrine making an employer liable for negligent hiring, as well as negligent retention, arose out of the common law fellow-servant law which imposed a duty on employers to select employees who would not endanger fellow employees by their presence on the job. See Loftus, Employer's Duty to Know Deficiencies of Employees, 16 Clev-Mar.L.Rev. 143, 145 (1967). The concept of direct employer liability arising as a result of negligent hiring was later expanded to include a duty to "exercise reasonable care for the safety of members of the general public" so today it is recognized as the rule in the majority of the jurisdictions⁴ and recognized as the law by Restatement (Second) Agency § 213 (1958) which states:

A person conducting 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 person or instrumentalities in work involving risk of harm to others.

Liability is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.

The connection between the employment relationship and the plaintiff has been found sufficient by courts of other jurisdictions to impose upon a landlord a duty to use reasonable care in the hiring of an employee who may pose a threat of injury to tenants. Kendall v. Gore Properties, 236 F.2d 673 (D.D.C.1956); Svacek v. Shelley, 359 P.2d 127 (Alaska 1961); Zerder v. Friman Holding Co., 153 Misc. 225, 274 N.Y.S. 588 (N.Y.Sup.Ct.1934); La Lone v. Smith, 39 Wash.2d 167, 234 P.2d 893 (1951). The rationale employed in those cases, as well as in similar cases involving deliverymen or others who gain access to a dwelling by virtue of their employment, is that since plaintiff comes in contact with the employee as the direct result of the employment, and since the employer receives some benefit, even if only a potential or indirect benefit, by the contact between the plaintiff and the employee, there exists a duty on the employer to exercise reasonable care for the protection of the dwelling occupant to retain in such employment only those who, so far as can be reasonably ascertained, pose no threat to such occupant.

We can ascertain no substantial...