Metropolitan News-Enterprise


Monday, April 6, 2009


Page 1


Court: Employers Not Liable for Ex-Employees’ Torts


By STEVEN M. ELLIS, Staff Writer


The Fourth District Court of Appeal on Friday rejected a negligent hiring and retention action against a company whose former employee met a woman during a service call one month before he was fired and then murdered her two years later, after they had begun a relationship.

Explaining that an employer owes no duty of care with respect to the post-termination torts of former employees, Div. One upheld a grant of summary judgment against the woman’s daughter in her action against a San Diego plumbing services company.

James Joseph Cain shot and killed Judith Phillips in May 2005, two years after he was fired from his job as a plumbing service repairman for TLC Plumbing for misusing a company vehicle, drug and alcohol use, and reportedly threatening a coworker.

Cain and Phillips met in April 2003 after TLC dispatched Cain on a service call to Phillips’ residence. The two later began a relationship, but Phillips ended it and sought a restraining order against Cain prior to her death.

Cain was convicted of murder, and Phillips’ daughter sued TLC and its owner. She alleged they knew Cain had been convicted of a domestic violence and/or arson offense involving his then-wife when they hired him in 1999, and owed Phillips a duty of care.

Negligent hiring and retention actions require a showing of a duty, a breach, causation and damages, and California follows the rule set forth in the Restatement Second of Agency Sec. 213. The section provides that a person conducting an activity through an agent is subject to liability for harm resulting from the agent’s conduct if the principal negligently or recklessly employs an improper person or instrumentality in work involving the risk of harm to others.

However, on TLC’s motion for summary judgment, San Diego Superior Court Judge Yuri Hofmann agreed that the company’s alleged negligence was not a legal cause of Phillips’ harm because Cain was not the company’s employee when he killed her.

Hoffman noted the lack of any employer-employee relationship at the time of Phillips’ death, and commented it was not “reasonably foreseeable that Cain would enter into a personal relationship with [Phillips] which would later lead to [his] shooting and killing of [her] years after he provided plumbing service to her.”

Phillips’ daughter appealed, but Justice Alex C. McDonald confirmed that TLC did not owe her mother a duty of care because the employer-employee relationship ends on termination of employment, and because Cain’s tortious act on Phillips occurred two years after his firing.

Pointing to a lack of California caselaw directly on point, the justice wrote that his conclusion was supported by the “great weight of case authority from other jurisdiction” applying the Restatement Second of Agency in similar circumstances.

McDonald also found support in the Restatement Third of Agency Sec. 7.05, published in 2006. The section similarly defines a cause of action for negligent hiring and retention and adds the requirement of a nexus or causal connection between the principal’s negligence in selecting or controlling an actor, the employment or work, and the harm suffered by a third party.

He explained:

“[W]e doubt Defendants’ alleged negligent hiring and retention of Cain was a proximate or legal cause of Cain’s tortious conduct committed on Judith two years after Defendants terminated his employment, especially when Cain and Judith’s initial social relationship began outside of Cain’s employment duties and their romantic relationship did not begin until after his employment was terminated.”

Justices Patricia D. Benke and Joan Irion joined McDonald in his opinion.

The case is Phillips v. TLC Plumbing, Inc., 09 S.O.S. 1965.

McDonald also cited language from Federico v. Superior Court (1997) 59 Cal.App.4th 1207, where the Court of Appeal stated that “[a]n employer is not charged with guaranteeing the safety of anyone his employee might incidentally meet while on the job against injuries inflicted independent of the performance of work-related functions.”



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