Irrespective of whether or not ABC Apartments satisfied its duty of reasonable care with respect to the safety of its tenants, the harm for which liability is claimed must relate directly to any failure to satisfy that standard. More particularly, to establish liability, the plaintiff must also establish that any negligence of ABC in failing to exercise reasonable care was the proximate cause of the harm that resulted (Freidman 2005).
For example, had the apartment complex manager previously been sentenced for rape as a juvenile, even a thorough criminal background check performed by ABC Apartments would have failed to disclose that information, through no fault of ABC Apartments. A more interesting factual situation arises if ABC failed to satisfy its duty of care owed to its tenants by neglecting to perform any pre-employment criminal background check of the manager but where the only relevant information available would have required much more extensive research beyond the scope of what the reasonable care standard actually requires.
Identifying the Basis of ABC Apartments Liability:
Ordinarily, vicarious liability of employers is predicated on the common law principle of respondeat superior, pursuant to which employers are responsible for harms caused by their employees by virtue of the employers failure to properly supervise or train them (Halbert & Ingulli 2000). In addition, many states have established precedents imposing an affirmative duty on the part of employers to safeguard their employees, tenants, and the general public from criminal conduct perpetrated by their employees.
Minnesota, in particular, has dealt with the same factual circumstances raised by the ABC Apartment case; California and several other states have specific statutes defining additional liability for negligence in hiring and in the retention of employees who are unfit or otherwise unsuitable for their positions. (Feliu & Johnson 2002).
The conceptual distinction between issues giving rise to ABC Apartments liability under respondeat superior principles and liability under state-specific statutes and precedents is that liability under the former is predicated on specific conduct of the employer that relates directly to the harm caused by the employee; typically, that arises in the context of failure to properly supervise and train employees in the particular task or responsibilities that caused the harm. Negligence in hiring and employee retention is not covered under traditional respondeat superior theories of civil liability (Feliu & Johnson 2002).
Irrespective of whether or not the state whose jurisdiction controls currently recognizes employer/landlord liability for negligence in hiring or employee retention, the plaintiff may establish that basis of liability by presenting evidence of standards recognized in other jurisdictions. In principle, the plaintiffs claim is predicated on the specific negligence of ABC Apartments to satisfy its duty of reasonable care with respect to investigating the criminal background of the manager.
The plaintiffs claim satisfies the requirement of proximate cause, by virtue of the fact that it was reasonably foreseeable that providing an individual with a previous record of violent criminal assault access to keys to private residences presented an unreasonable risk to those tenants. Had ABC Apartments conducted a standard criminal background checks necessary to satisfy its duty of reasonable care, ordinary common sense and experience would have sufficed to disqualify the candidate.
Whereas compensatory damages are relatively straightforward once breach of duty of care and causation are established, any recovery of punitive damages will likely depend on the prior availability of specific statutes requiring pre-employment criminal background screening by landlords. Generally, the standard required to establish punitive damages in civil awards is the knowing or purposeful violation of a statutory duty (Freidman 2005) rather than merely meeting the burden of proof necessary to establish liability for negligence.
Feliu, a., Johnson, W. (2002) Negligence in Employment Law. Washington, DC: BNF, Inc.
Friedman, L. (2005) a History of American Law. New York: Touchstone Halbert, T., Ingulli, E. (2000) Law & Ethics in the Business Environment 3rd ed. Cincinnati, OH: West Legal Studies
Schmalleger, F. (1997) Criminal Justice Today: An.