Reed v. Kelly

• Decision Date: 21 November 2000
• Citation: 37 S.W.3d 274
• Parties: (Mo.App. E.D. 2000) Gwendolyn Reed, Plaintiff/Appellant, v. Derrell Kelly, Defendant, and Ree's Contract Service, Inc., Defendant/Respondent. ED77380
• Court: Missouri Court of Appeals

37 S.W.3d 274 (Mo.App. E.D. 2000)

Gwendolyn Reed, Plaintiff/Appellant, v. Derrell Kelly, Defendant, and Ree's Contract Service, Inc., Defendant/Respondent.

ED77380

Missouri Court of Appeals Eastern District

11/21/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Robert J. Dierker, Jr.

Counsel for Appellant: Ted F. Frapolli and Dan Haltenhof

Counsel for Respondent: Russell F. Watters, Angela N. Loehr, T. Michael Ward and Amy L. Klingerman

Opinion Summary: Gwendolyn Reed appeals the trial court's judgment in favor of the employer of Derrell Kelly, an armed security guard in a federal building who sexually touched her, falsely imprisoned her, and exposed himself to her while she was visiting the building.

Division Five holds: 1. There was insufficient connection between employee Kelly's pre-employment acts of slapping his wife and engaging in a fistfight with a co-employee and employee's commission of sexual offenses against a building visitor to make the employer negligent in hiring the employee. 2. There was an insufficient connection between the employee's pre-employment acts of slapping his wife and engaging in a fistfight with a co-employee and commenting on a visitor's legs during his employment, and employee's commission of sexual offenses against a building visitor to make employer negligent in retaining or supervising employee.

Kathianne Knaup Crane, Judge

Plaintiff, Gwendolyn Reed, brought an action against Derrell Kelly, who was employed as an armed security guard in a federal government building, and his employer, Ree's Contract Service, Inc. (employer), to recover damages she suffered when Kelly sexually touched her, falsely imprisoned her, and exposed himself to her while she was visiting the building where he was employed. The trial court entered summary judgment in employer's favor and plaintiff appealed. We affirm because there was insufficient connection between the three previous instances of Kelly's misconduct and the acts committed against plaintiff to make employer negligent in hiring, retaining, or supervising Kelly.

Prior to September 21, 1991, while Kelly was serving in the Marine Corps in Virginia, he was arrested and charged with assaulting his wife by slapping her. In 1993, a previous employer discharged Kelly for engaging in a fistfight with a co-worker. Employer hired Kelly as a security guard in June, 1995. Employer provides security services for federal government properties in several states under contracts with the Federal Protective Service of the General Services Administration. On July 25, 1995 employer suspended Kelly for three days and reassigned him after a woman visiting the building where he was on duty overheard him comment, "ooh, nice legs" as she passed.

On September 18, 1996 plaintiff visited the building where Kelly was then employed. Kelly escorted plaintiff into a private room where he sexually touched her and exposed himself to her. He was subsequently convicted of the federal misdemeanor offense of abusive sexual contact in violation of 18 U.S.C. Section 2244(b) and was terminated from his employment.

Plaintiff brought a lawsuit to recover damages from Kelly and employer. Her claims against employer were based on respondeat superior, negligent hiring, negligent retention, and negligent supervision. The trial court entered summary judgment for employer on each of these counts.

In her first point plaintiff asserts that the trial court erred in failing to find a genuine issue of material fact with respect to whether employer conducted a reasonable investigation of Kelly before it hired him. In her second point she claims that the trial court erred in finding employer's reliance on a limited background check was reasonable and in finding that there was no issue of material fact with respect to the conduct or scope of the background check. These points misconstrue the trial court's action. Although the parties disputed the scope, conduct, and reasonableness of employer's pre-employment investigation, the trial court based its judgment on an assumption that employer knew or should have known of the two incidents which plaintiff argues employer would have discovered had it conducted the pre-employment investigation and background check in the manner in which plaintiff argues it should have. Because the trial court's decision was based on a conclusion that employer was entitled to judgment as a matter of law even if employer knew of the two prior incidents, whether employer conducted a reasonable investigation to learn of these incidents is not a dispute that affects the outcome of the case and thus is immaterial. Martin v. City of Washington, 848 S.W.2d 487, 491 (Mo. banc 1993). Points one and two are denied.

For her third point plaintiff maintains that the trial court erred in finding that the two pre-employment assaults were not, as a matter of law, the proximate cause of plaintiff's injury on her negligent hiring claim. She argues that, because employer's owner and management testified they would not have hired Kelly had they known of the prior assaults, causation is a question of fact. She contends that the issue is not whether there was a nexus between Kelly's previous conduct and his conduct towards plaintiff, but employer's admission that it would not have hired Kelly to be a security guard had it known of his background.

An employer may be liable for negligent hiring if the employer knew or should have known of the employee's dangerous proclivities and the employer's negligence was the proximate cause of plaintiff's injury. Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo. App. 1983). The question of whether Kelly's background would have made him unhirable under employer's hiring policies is not relevant to the question of...