Abrams v. Worthington
In Abrams v. Worthington (2006) 169 Ohio App. 3d 94 2006 Ohio 5516, 861 N.E.2d 920 (Abrams), an Ohio court concluded a company did not owe a duty of care to a customer in connection with a former employee's posttermination tort committed against that customer and therefore was not liable on a negligent hiring cause of action. (Id., 861 N.E.2d at pp. 922-924.)
In Abrams, the company hired Chad Sullivan as a furniture mover, but did not uncover his criminal record that included convictions for theft, burglary, and receiving stolen property. (Id. at p. 921.)
Four months later in December 2001, a married couple hired the company to move their possessions to their new home. Sullivan and two other movers participated in the move. In January 2002, the company terminated Sullivan's employment because of his bad attitude, poor work performance, and unreliability. (Ibid.) In March 2002, Sullivan and four or five accomplices went to the couple's home and attacked the husband, bound him and his wife, beat him, and stole valuable property. (Id. at pp. 921-922.)
Sullivan was convicted of aggravated burglary, aggravated robbery, kidnapping, and grand theft. (Id. at p. 922.) The couple filed an action against the company, alleging causes of action for negligent hiring and negligent retention of Sullivan. The trial court granted the company's motion for summary judgment. (Ibid.)
On appeal, Abrams noted Ohio courts rely on section 213 of the Restatement Second of Agency (as quoted above) in defining the torts of negligent hiring and negligent retention. (Abrams, supra, 861 N.E.2d at pp. 922-923.) It also quoted section 7.05, subdivision (1) of the Restatement Third of Agency, which it stated provided a "more succinct statement" of those torts. (Abrams, at p. 923.)
Noting "the existence of a duty depends upon the foreseeability of injury to the plaintiff" (ibid.), the Abrams court noted two of its prior cases involving analogous circumstances "found that the defendants did not owe the plaintiffs a duty of care because a reasonable person could not foresee that the ex-employees would injure the plaintiffs months after their employment ended" (id. at p. 924).
Abrams stated: "Essentially, our reasoning in those two cases conflated the two elements necessary for a duty to arise in negligent hiring and negligent retention cases--the existence of an employment relationship and foreseeability of injury. We now clarify that both elements must be considered separately and, based upon the lack of an employment relationship between the defendant and the ex-employee at the time of the plaintiffs' injuries, conclude that the defendant did not owe the plaintiffs a duty to prevent the ex-employee from causing their injuries." (Ibid.) Accordingly, Abrams affirmed the summary judgment for the company. (Ibid.)