Negligent Hiring Claim As a Result of a Rape by An Employee

In Guidry v. National Freight, 944 S.W.2d 807 (Tex. App. 1997), a long-haul truck driver applied for employment with the defendant employer. He stated in his employment application that he had no criminal record. In fact, the employee had a history of sexual misconduct in his military records, criminal records and previous employment records. The employer never confirmed the statements made in the application, never conducted an independent investigation into his nonvehicular criminal record, and never contacted his previous employer. The employer did, however, check the employee's driving record, as required by law. The employee was hired, and while driving through the city of Austin, he stopped and parked his truck at a building to urinate and stretch his legs. The employee left the truck in the parking lot and wandered through an adjacent neighborhood before coming to a condominium complex parking lot. There he encountered a woman and dragged her into an adjoining apartment complex and raped her. The victim brought an action against the employer claiming that it was liable for the negligent hiring, supervision and retention of the employee. The court ruled that before liability will be imposed there must be sufficient evidence to indicate the defendant knew or should have known that a foreseeable harm would eventually befall the victim. It found the employee should never have come into contact with the plaintiff in the exercise of his duties as a truck driver, thus, the duty owed to her must flow from a duty owed to the general public. The court found negligence could not be established because the harm was not foreseeable. The court reasoned that this situation differs from that where an employer places the employee into a special relationship of trust with a vulnerable group, such as a scoutmaster with young boys, a drug counselor with the family of an addict, or a nurse with the elderly. Id. at 810. It also found that this case did not concern an employer who hired an employee to go to a customer's home to sell its product. In these situations an employer would be held to a heightened obligation. The Texas court found the employer had "a duty to take steps to prevent injury to the driving public by determining the competency of a job applicant to drive one of its trucks." Id. at 809. It found the purpose of this duty "is to promote highway safety and prevent motor vehicle accidents, not to prevent general criminal activity." Id. The court refused to impose a duty on the employer of a long-haul driver to conduct a criminal background check on all new applicants, or periodic criminal checks on all current employees. It found the employer's duty was simply to hire competent drivers and that it would not "require an employer to insure the safety of those who come into contact with an employee by reasons other than his employment." Id. at 811.