A state appellate court recently ruled in favor of an employer whose employee left a job site in the middle of a shift, drove several miles away in his personal vehicle, broke into a home, and murdered two residents.  According to the Indiana Court of Appeals, because the harm caused by the employee was not reasonably foreseeable, the employer was not responsible for negligently hiring and retaining him. Clark v. Aris, Inc., No. 48A04-0801-CV-19, Indiana Court of Appeals (July 24, 2008).

Factual Background

In 2004, Frederick M. Baer applied for a job with Aris, Inc., an Indiana corporation that supplies traffic controllers to contractors.  On his application, Baer admitted to having a burglary conviction and authorized Aris to perform a criminal background check, which Aris did not do.  Approximately one month after hiring him, Aris assigned Baer to work on a Madison county job site where construction was being performed by N.G. Gilbert Corp.  Baer left the job site without Aris’ permission, drove his personal vehicle to the residence of Cory and Jenna Clark, entered the home, and murdered them.  Baer was later found guilty of the Clarks’ murders.  John Clark, individually and as the personal representative of the Estate of Cory Clark, filed a lawsuit against Aris for negligent hiring and retention.  The trial judge ruled in Aris’ favor and Clark appealed this decision to the Indiana Court of Appeals.

Legal Analysis

The state appellate court first considered whether Aris owed the Clarks a duty of care on the basis of the employment relationship between Aris and Baer.  The court reasoned that to determine whether to impose a duty of care it must consider whether the harm to the Clarks was reasonably foreseeable.  Specifically, the court considered whether the Clarks were reasonably foreseeable victims who were injured by a reasonably foreseeable harm.

In making this determination, the Indiana Court of Appeals took note of several facts: (1) Baer’s job did not put him in personal contact with citizens; (2) Baer’s job did not give him access to people’s homes; (3) to commit the murders Baer left his job mid-shift and drove his personal vehicle several miles to break into the Clark home.  Given these facts, the court stated it “simply cannot conclude that Cory and Jenna Clark, who lived miles from the construction site in a residence that Baer was not authorized to enter for any purpose whatsoever, were reasonably foreseeable victims, or that the tragic harm that befell them was reasonably foreseeable.”  Concluding that the Clarks were not reasonably foreseeable victims, the court held that Aris did not owe a duty of care to the Clarks and affirmed the trial judge’s ruling in the company’s favor.

Practical Impact

According to Kim Ebert, a shareholder in Ogletree Deakins’ Indianapolis office: “The result in this case was predictable given the facts.  The lesson for Indiana employers is that the court recognizes that there may be circumstances under which an employer can be held liable for criminal acts of employees that harm third parties.  Special care should be exercised in evaluating applicants and current employees in positions which will involve contact with the public, especially jobs in which employees visit the homes or premises of customers, handle valuables or drive as a part of work duties.  Failure to conduct proper background checks could result in liability to the employer when harm or a loss is suffered at the hands of an employee with a record of past misdeeds.”   

Note: This article appeared in the August 28, 2008 issue of the Indiana eAuthority.

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