Cramer v. Housing Opportunities Commission

McAULIFFE, Judge. This claim of negligent hiring was brought by Carolyn W. Cramer (Cramer) against the Housing Opportunities Commission of Montgomery County (the “HOC”) for damages resulting from a sexual assault. Cramer alleged and proved that in early March, 1976 she was raped in the townhouse she rented from the HOC, and that her assailant was George P. Slater (Slater), 1 a housing inspector employed by the HOC. Cramer contended the HOC was negligent in hiring Slater for a sensitive position without having any basis to believe he was trustworthy, and without having made any reasonable inquiry to ascertain his fitness for that position.

She offered evidence that Slater had been convicted earlier in the Circuit Court for Montgomery County of robbery and assault, and in the District of Columbia of burglary, and that at the time of his hiring approximately two months before the assault, he was under indictment in Montgomery County for rape and related offenses. 2 The case was submitted to the jury on special ⁷⁰⁸ interrogatories and the jury found Cramer had not proven the HOC “was negligent in hiring Mr. Slater.” 3 Following the entry of a judgment nisi in favor of the HOC the trial judge entered an order finding there was no legally sufficient evidence to establish a causal relationship between any negligence of the HOC and the attack upon Cramer. 4 Cramer appealed to the Court of Special Appeals, but that court found no error. Cramer v. Housing Opportunities Comm’n, 60 Md.App. 253 , 482 A.2d 156 (1984). We granted certiorari and we reverse because of error in the exclusion of evidence concerning Slater’s record of criminal convictions and the accessibility of that information to the HOC. Appellant separated from her husband in the Spring of 1974 and moved with her twin children, then two years of age, to a rented townhouse located in a development known as Pomander Courts, in Montgomery County.

In November of 1975 the townhouse development was purchased by the HOC, a public agency providing subsidized housing for ⁷⁰⁹ qualified individuals. 5 At about the same time, the HOC entered into a contract with Montgomery County to employ a building inspector and three maintenance workers from among unemployed persons qualified for federally subsidized employment under Title VI of the Comprehensive Employment Training Act (“CETA”). Montgomery County’s CETA program was administered by its Office of Human Resources (“OHR”), which agreed to screen all applicants to ensure that they were unemployed residents of Montgomery County and eligible under the CETA program. On December 9, 1975 Slater submitted an application for the position of housing inspector to the Montgomery County Employment Service Center, a part of the OHR. Employees of the employment center confirmed Slater’s residence in Montgomery County and forwarded his application to the HOC with advice that Slater was CETA-qualified.

No one at the employment center questioned Slater concerning any matter relating to his trustworthiness, nor was any effort made to verify other information contained in the application. The HOC employment interview was conducted by Charles Bryant, a maintenance superintendent. Bryant asked Slater five questions, all pertaining to his previous work experience. Bryant did not question Slater concerning parts of the application that were not completed, nor did he ask any questions intended to provide information relating to Slater’s trustworthiness. 6 The application revealed that Slater had quit high school in 1965, served in the Army, ⁷¹⁰ and had worked for Kenneth Downs from April, 1973 to January, 1974, and for Robert Bobb from February to September of 1974.

A portion of the application requesting dates of military service was not completed, and questions asking whether the applicant had ever been dismissed or asked to resign from any position were not answered. Although Bryant was not particularly pleased with any of the three persons he interviewed for the position, he recommended Slater upon being advised there were no other CETA-qualified applicants, and with the realization that if the position was not filled promptly, federal funding for it would probably be lost. Bryant’s recommendation was forwarded to Bernard Tetrault, Executive Director of the HOC, in the form of a payroll change authorization form that included no information about Slater except his name, address, Social Security number and date of birth. Tetrault signed the authorization without reviewing the employment application, and apparently without discussing the matter with Bryant.

Neither Bryant, Tetrault nor any other employee of the HOC called or contacted either person listed by Slater as a previous employer, or any person listed as a personal reference, nor did they attempt any verification of the information furnished by Slater or undertake any independent investigation of him. Slater’s employment as a housing inspector commenced on December 23, 1975. His duties consisted of periodically inspecting rental units of the HOC and submitting a report to the maintenance division of items needing repair or replacement. Each inspection was comprehensive, covering every room of the unit by following a predetermined and systematic routine.

Appointments for inspections were made with the tenants by a secretary in the maintenance office, and it was the normal practice to conduct an inspection in the presence of the tenant. Keys for all units were kept in Bryant’s office, and were used to gain access to the units in those instances where the tenant had consented in ⁷¹¹ writing to an inspection or the making of repairs in the tenant’s absence. Appellant testified that Slater inspected her townhouse on February 13, 1976, and that the inspection lasted about 45 minutes and included every room. During the inspection Slater asked a number of questions, including one unauthorized inquiry concerning the number and identity of the occupants of the townhouse.

Appellant provided all requested information, including the fact that she and her two children were the sole occupants of the home. In the hours of darkness during the evening of March 2 or the early morning of March 3, Slater returned to Appellant’s townhouse and assaulted her. The evidence indicated Slater probably gained access to the home through an open kitchen window on the ground level. 7 Appellant’s claim is that the HOC failed to use reasonable care in ascertaining the fitness of Slater for a position that not only brought him in contact with tenants but also gave him access to their homes, and under some circumstances to the keys to their homes. In Evans v. Morsell, 284 Md. 160, 166-67 , 395 A.2d 480 (1978), we said: Where an employee is expected to come into contact with the public ... the employer must make some reasonable inquiry before hiring or retaining the employee to ascertain his fitness, or the employer must otherwise have some basis for believing that he can rely on the employee.

The nature and extent of the inquiry that is needed will naturally vary with the circumstances. (Citations omitted.) Appellant, as a tenant, was clearly a person to whom the HOC owed a duty of reasonable care in the hiring of a housing inspector. Equally clear is the existence of evi ⁷¹² dence from which the jury could have found a breach of that duty. Notwithstanding the sensitive nature of the position to be filled, the HOC accepted an incomplete application for employment, made inquiry of the applicant only as to work experience, and failed to undertake even the most rudimentary investigation either to verify the sparse information furnished or to otherwise gather independent information concerning the fitness of the employee.

If, as appears likely, the HOC undertook no investigation of Slater because of a belief that the OHR had done so, it had no right to make that assumption. The contract between the HOC and Montgomery County required only that the OHR screen applicants for confirmation of county residency and CETA eligibility, and the HOC had no reasonable basis to assume that more would be done. Additionally, as the HOC conceded at trial, its duty to exercise reasonable care in the selection of a housing inspector was not delegable. Athas v. Hill, 300 Md. 133, 148-49 , 476 A.2d 710 (1984); Wood v. Abell, 268 Md. 214, 238-39 , 300 A.2d 665 (1973); Jarka Co. v. Gancl, 149 Md. 425, 431 , 131 A. 754 (1926). 8 To establish a cause of action in negligence, a plaintiff must prove the existence of a duty owed by a defendant to him (or to a class of which he is a part), a breach of that duty, a legally cognizable causal relationship between the breach of duty and the harm suffered, and damages.

Scott v. Watson, 278 Md. 160, 165 , 359 A.2d 548 (1976); Peroti v. Williams, 258 Md. 663, 669 , 267 A.2d 114 (1970). One who breaches a duty owed to another is said to ⁷¹³ be negligent, but that negligence is actionable only if it is a proximate cause of damage. In this case there was legally sufficient evidence to prove three of the four elements of the cause of action — duty, breach, and damage, and those three concepts are rather easily understood. Somewhat more complicated in the context of this case is the concept of proximate cause — the legally cognizable nexus between the breach of duty and the damage suffered.

This is so because the plaintiff must prove two links in the causal chain to establish the ultimate connection in this case. First, she must prove that the failure of HOC to undertake a reasonable inquiry resulted in the hiring of Slater. If, for example, a reasonable inquiry would probably not have produced any information that would have persuaded a reasonable employer to refuse employment for the position sought, the failure to conduct an inquiry, though negligent, would not be a proximate cause of the harm. Kendall v. Gore Properties, 236 F.2d 673 (D.C.Cir.1956); Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 912-13 (Minn. 1983); Stevens v. Lankard, 31 A.D.2d 602 , 297 N.Y.S.2d 686 (1968), aff'd, 25 N.Y.2d 640 , 306 N.Y.S.2d 257 , 254 N.E.2d 339 (1969); Stone v. Hurst Lumber Co., 15 Utah 2d 49 , 386 P.2d 910 (1963).

Second, if a negligent hiring is shown, the plaintiff still must prove that the hiring was a proximate cause of the injury. Scott v. Watson, supra, 278 Md. at 171 , 359 A.2d 548 ; Peterson v. Underwood, 258 Md. 9, 16-17 , 264 A.2d 851 (1970). Again, by way of example, if Slater had been negligently hired but had assaulted a tenant of the HOC previously unknown to him, in a nearby shopping center and during off-duty hours, there would be no causal relationship between the hiring and the assault. In attempting to prove the first link in this chain of causation, Appellant properly sought to prove the probable consequences of a reasonable inquiry.

She produced the three individuals listed by Slater on his employment application as persons “who can comment on your education ⁷¹⁴ and/or work experience.” Each testified to the absence of any contact by the HOC, and further testified to a lack of any knowledge of Slater’s educational background or work experience. Appellant proved that one of the previous employers named on the application, but not contacted, had knowledge of Slater’s imprisonment. She offered evidence that the only other previous employer listed by Slater probably could not have been located because of the failure to include a proper address or any telephone number on the application. Appellant then offered to prove that Slater’s criminal and arrest record was available to the HOC by a telephone call to the records section of the Montgomery County Police Department, or by requiring that Slater obtain and present a copy of his criminal record.

Further, Appellant proffered that a record check made at the time of hiring would have disclosed Slater’s convictions in Montgomery County, as well as the fact that he was awaiting trial on rape and related charges. 9 The trial judge refused to admit this evidence, stating: No, Sir, because they were not required to look at the criminal record, and the jury is not going to get into the concern as to whether — how easy, how they could have gone about getting them; and I still hold as a matter of law under the circumstances that you have presented, there is no requirement for them to run a record check. ⁷¹⁵ This ruling was in error, and requires reversal. Because Appellant had the burden of showing that Slater was unfit for the position of housing inspector, and that a reasonable inquiry would have produced information bearing on that issue, she was entitled to place before the jury evidence of an additional area of investigation open to the HOC, the relative ease with which it could have been conducted, 10 and the information that would have been obtained had the inquiry been made. 11 One can normally assume that anoth ⁷¹⁶ er who offers to perform simple work, not involving danger to others, is competent. Restatement (Second) of Agency § 213, Comment d (1958). On the other hand, where the work involves a serious risk of harm if the employee is unfit, as in the hiring of a police officer, there is no presumption of competence and there may well exist a duty to conduct a criminal record investigation.

Other factors must be considered, including the availability of such information; the cost, inconvenience, and delay in obtaining it; whether other sources, including a previous employment record in the same field, are sufficient to justify a finding of fitness; and whether unanswered questions, negative indicators, or other “red flags” have surfaced during routine investigation. No single factor is dispositive, and the trier of fact must consider all of the .circumstances to determine whether the failure to obtain a criminal history record constitutes a breach of duty in a given case. Clearly there exists a tension between competing interests. On the one hand, there is the individual’s right of privacy, the desire of the previously convicted individual to secure employment in any area for which the person is suited, and the societal interest in rehabilitation of offenders.

On the other hand, there is a significant need to protect society from the enhanced risk of careless employment practices. In the first instance that balance is struck by the Congress, the General Assembly, and the agencies charged with the collection and dissemination of criminal history record information, through the enactment of laws and regulations specifying the circumstances under which the information should be provided to employers. That policy decision has been made, and where it has been determined that the balancing of interests does not warrant dissemination of the information, the employer cannot be faulted for not having obtained it. Where, however, the decision has been made to provide the information, it be ⁷¹⁷ comes a jury question as to whether an employer is negligent in not seeking it.

The HOC contends that any error in the exclusion of this evidence must be considered harmless because the evidence was relevant only to the issue of causation. The jury’s finding that the HOC had not been negligent in hiring Slater removed from consideration the issue of causation. We disagree,