Opinion
No. 59876-7-I.
August 18, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-35159-4, Charles W. Mertel, J., entered April 10, 2007.
Reversed and remanded by unpublished opinion per Schindler, C.J., concurred in by Ellington and Lau, JJ.
American Cabulance, Inc. (Cabulance) provides nonemergency medical transportation services for individuals with disabilities. After driving a 61-year-old disabled woman, Barbara Hebert, to a medical appointment and back to her home, Cabulance driver David Aulerich sexually assaulted her. Hebert appeals the summary judgment dismissal of her claims against Cabulance for negligent hiring, retention, and supervision of Aulerich and the denial of her motion to amend the complaint to specifically allege that Cabulance was a common carrier. Because there are genuine issues of material fact about whether Cabulance failed to exercise reasonable care before hiring Aulerich, we reverse the decision to dismiss Herbert's claims against Cabulance, vacate the decision denying her motion to amend the complaint, and remand.
FACTS
David Aulerich worked for approximately six years as a driver for a nonemergency medical transportation service, Rural/Metro Corporation (Rural/Metro). In 2002, the Rural/Metro human resources representative, Jen Burnett, investigated a sexual harassment complaint against Aulerich. In June, Rural/Metro disciplined Aulerich for sexual harassment of a co-worker. In December, Burnett received a complaint that Aulerich hugged a co-worker's mother while on duty. During that investigation, Aulerich admitted soliciting a date from a married woman while he was on duty and in uniform. Aulerich also told Burnett that "he had been accused of sexually molesting his daughter and was no longer allowed to see her." On December 13, Rural/Metro terminated Aulerich for "harassing female coworkers. . . ."
Three days later, Aulerich applied to work as a driver for another company that provides nonemergency medical transportation services, American Cabulance, Inc. (Cabulance). Cabulance is owned and operated by Priscilla Bunch and contracts with King County and Snohomish County to provide nonemergency medical transportation for individuals with disabilities. In his written application, Aulerich states that he had worked as a driver for Rural/Metro for the past six years and was still working at Rural/Metro on a part time basis. Under the "Reason For Leaving," Aulerich also states, "Downsizing cabulance — part time still."
Bunch testified that she conducted an interview with Aulerich for 30 to 40 minutes. During the interview, Aulerich told Bunch that he left his full time position with Rural/Metro because they were downsizing but he still worked as a driver for Rural/Metro on a part time basis on the weekends in order to keep his medical emergency training certificate. Bunch testified that she believed Aulerich was "someone who was credible in the information he provided me," was well qualified for the position, and "enjoyed cabulance driving."
After the interview, Bunch said that she checked Aulerich's driving record with the Department of Licensing and verified that King County did not have a record of any driving complaints concerning Aulerich. Bunch also said that she called Rural/Metro to verify Aulerich's employment history, but she did not document the call. According to Bunch, she asked Rural/Metro to verify Aulerich's start date, but did not ask about his termination date nor did Bunch verify whether Aulerich was still working at Rural/Metro part time. Burnett testified that she did not recall receiving a call from Bunch but, if asked, she would have provided Aulerich's termination date and would have verified that he did not still work for Rural/Metro part time. Burnett testified that Aulerich's stated reasons for leaving were not true. Bunch said that if she had learned that Aulerich had not been truthful, she would not have hired him. In mid to late December, Bunch hired Aulerich as a Cabulance driver.
Barbara Hebert suffers from Addison's disease and fibromyalgia and had used medical transportation services such as Cabulance for a number of years. In March 2004, Hebert made arrangements for Cabulance to drive her to a medical appointment and then back home. Aulerich was the assigned Cabulance driver. After returning from the appointment and assisting Hebert to her front door, Aulerich sexually assaulted Hebert. Aulerich pressed her against the door, forced his leg in between her legs, pinned her arms to her sides by wrapping both his arms around her, and forcibly kissed her. Herbert said she tried unsuccessfully to get free from Aulerich. But when she told Aulerich, "Don't" and "Stop it," he forced his tongue into her mouth. And when Hebert tried to turn her head away, Aulerich said "[y]ou know you like it, don't you." Aulerich finally released Hebert when a driver who was trying to get around the Cabulance van, honked. Aulerich then ran to the van and drove away. After the attack, Hebert suffered a debilitating level of fear and anxiety and believes that she contracted mononucleosis.
About two weeks after the assault, Hebert called Cabulance to arrange for transportation but said that she did not want Aulerich as the driver. When Bunch asked her why, Hebert told Bunch what had happened. Bunch immediately terminated Aulerich.
The State criminally charged Aulerich with the assault of Herbert. In his plea to assault in the third degree, Aulerich admitted that he "caused bodily harm accompanied by substantial pain extending over a period of time causing considerable suffering to Barbra Herbert [sic]."
On October 26, 2005, Hebert filed a lawsuit against Aulerich and Cabulance. Hebert alleged Aulerich committed assault, battery, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. Hebert alleged that Cabulance was negligent and failed to exercise reasonable care in hiring, retaining, and supervising Aulerich.
Defendant American Cabulance Inc. negligently failed to adequately investigate David Karl Aulerich qualifications, history, and background prior to hiring him. Had American Cabulance Inc. properly investigated Mr. Aulerich, it would have discovered Mr. Aulerich's history, which included a conviction for criminal assault. Defendant American Cabulance, Inc. also negligently retained, and supervised David Karl Aulerich as an employee.
Cabulance filed a motion for summary judgment. Cabulance argued that as a matter of law, Bunch conducted a "clearly sufficient" background investigation of Aulerich. In support, Cabulance submitted the declaration of an expert witness, Edward Peterson. Peterson testified that Bunch's efforts to obtain a "State Patrol check, drug screening check, [motor vehicle records] check," and verify Aulerich's start date with Rural/Metro constituted a reasonable hiring process. As an alternative ground for dismissal, Cabulance asserted that any alleged negligence was not the proximate cause of Aulerich's sexual assault of Hebert. In opposition, Hebert argued that Cabulance was strictly liable as a common carrier for Aulerich's assault against her. Hebert also relied on deposition testimony to assert that Bunch's testimony about her call to Rural/Metro was not credible.
The court granted the motion for summary judgment and dismissed Hebert's claims against Cabulance with prejudice. The court also rejected Hebert's argument that Cabulance was liable as a common carrier because the "claim was never pled." Hebert filed a motion for reconsideration and a motion to amend her complaint "to clarify defendant American Cabulance's status as a common carrier." The court denied Hebert's motion for reconsideration and the motion to amend. Hebert appeals.
ANALYSIS
Hebert contends that because genuine issues of material fact preclude summary judgment, the trial court erred in ruling as a matter of law that Bunch exercised reasonable care in hiring Aulerich as a Cabulance driver.
We review the decision to grant summary judgment de novo.Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 487, 84 P.3d 1231 (2004). Summary judgment is proper if, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c);Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). "A material fact is one upon which the outcome of the litigation depends." Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). However, where competing inferences may be drawn from the evidence, the case must be resolved by the trier of fact. Hudesman v. Foley, 73 Wn.2d 880, 441 P.2d 532 (1968). The appellate court cannot resolve questions of credibility on summary judgment. Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 626, 818 P.2d 1056 (1991).
An employer may be liable for the harm caused by an unfit employee if the employer acted negligently in hiring the employee. Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 252, 868 P.2d 882 (1994). To establish negligent hiring, a plaintiff must prove: (1) the employer knew, or in the exercise of ordinary care, should have known of the employee's unfitness at the time of hiring, and (2) the employer's negligence proximately caused the resulting injury. Betty Y. v. Al-Hellou, 98 Wn. App. 146, 150, 988 P.2d 1031 (1999);Guild v. St. Martin's College, 64 Wn. App. 491, 498-99, 827 P.2d 286 (1992). Foreseeability requires that the alleged harm is related to the employer's duty. Niece v. Elmview Group Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997). In determining the reasonableness of a background investigation of a potential employee, if there is a likelihood of subjecting third persons to harm, a higher degree of care is required.Carlsen v. Wackenhut, 73 Wn. App. at 256.
First, Hebert contends there are issues of material fact about whether Bunch actually called Rural/Metro to verify the information Aulerich provided in his application and during his interview. Where the testimony in opposition to summary judgment is "contradictory and raise[s] credibility questions revolving about a material and decisive issue in the case," summary judgment should not be granted, especially where material facts are particularly within the knowledge of the moving party.Meadows v. Grant's Auto Brokers, Inc., 71 Wn.2d 874, 881-82, 431 P.2d 216 (1967). And if the evidence the moving party relies on is contradicted or impeached by other evidence in the record, summary judgment should not be granted and the nonmoving party should be "'allowed to disprove such facts by cross-examination and by the demeanor of the moving party while testifying.'" Michigan Nat'l Bank v. Olson, 44 Wn. App. 898, 905, 723 P.2d 438 (1986) (quoting Felsman v. Kessler, 2 Wn. App. 493, 496-97, 468 P.2d 691 (1970));see also Amend v. Bell, 89 Wn.2d 124, 129, 570 P.2d 138 (1977), and Gingrich v. Unigard Sec. Ins. Co., 57 Wn. App. 424, 429-30, 788 P.2d 1096 (1990).
Bunch testified that she called Rural/Metro and talked to the human resources representative about Aulerich. But Bunch did not remember who she talked to and made no record of the call.
Q. [W]ho did you contact at Rural/Metro?
A. You know, their HR person.
Q. Do you recall his or her name?
A. No, I don't.
Q. Do you have any record of that conversation?
A. No, I don't. It was just a verbal conversation.
Burnett was the "only human resources representative for the Pacific Northwest" for Rural/Metro. Burnett testified that any call about Aulerich would have been directed to her. However, Burnett said that she had "no recollection of a call from Priscilla Bunch. . . ."
Bunch's testimony about the call that she made to Rural/Metro is also arguably inconsistent. At one point in her deposition, Bunch said that the Rural/Metro representative told her that Aulerich was still working part time. At another point, Bunch said it was Aulerich who told her that he was working part time for Rural/Metro. Bunch testified, "I did call Rural/Metro, which was his last employer, and they did not give me any information other than giving the dates of hire. And he was still working for them on a part-time basis." But in response to the question, "Did you ask them the date of termination[?]," Bunch also stated, "No, I did not because they did — Mr. Aulerich stated that he was still working for them on a full-time basis, and they did not tell me that he was terminated." Whether Bunch called Rural/Metro is material and critical in determining whether she exercised reasonable care in hiring Aulerich as a Cabulance driver. We conclude that Burnett's testimony coupled with the inconsistencies in Bunch's testimony precludes granting summary judgment.
However, even if we assume that Bunch called Rural/Metro, there are genuine issues of material fact about whether Bunch exercised reasonable care. Bunch admitted that she did not call any of Aulerich's references other than Rural/Metro. Bunch also admitted she did not ask Rural/Metro to verify the dates of Aulerich's employment or whether he was still employed on a part time basis.
Q. [Y]ou asked Rural/Metro to tell you what were the dates of his employment at that agency, correct?
A. Yes, I did ask them his date of hire.
Q. Did you ask them the date of termination[?]
A. No, I did not. . . .
There is no dispute that Aulerich lied on his application by stating that he left Rural/Metro because it was downsizing and that he still worked for Rural/Metro on a part time basis. Burnett testified that if Bunch had asked about Aulerich's dates of employment, she would have provided them and she would have confirmed that Aulerich was not working part time for Rural/Metro.
Q: And on the employer information, the last employer name, which is the first last employer, it says "Rural/Metro Ambulance," right?
A. Correct.
Q: It says he was an EMT driver from December 14th, 1999, to December 13th, '02. Is that what it says?
A: That's what it says.
Q: And that is accurate information, is it not?
A: Correct.
Q: And then he goes on to say, "Reason for leaving: Downsizing cabulance — part time still." That's not true, is it?
A: What date did he fill this out? Is there a date?
Q: Yes.
A: Oh, 12/16/02, that is not correct.
Q: In fact, it would be a lie, right?
A: Correct.
Q: And if Priscilla Bunch said, when was he terminated, you would have said December 13th, '02, right?
A: Correct.
Q: And if she said, is he still working for you, you would have said no?
A: Obviously, because his termination date was 12/13/02.
. . .
Q: All right. And you would have had no hesitation to tell Priscilla Bunch that he no longer worked for you, period?
. . .
A: I would have told Priscilla his dates of employment and position held, which would have been 12/14/99 to 12/13/02.
Q: And if she had said, is he still working here, you would have said no?
A: Correct.
. . .
Q. [I]f Ms. Bunch were to have called your office in the middle or end of December 2002, do you know what you would have said specifically about Mr. Aulerich?
A. I would have only given out dates of employment and position held.
Cabulance relies on Scott v. Blanchet High School, 50 Wn. App. 37, 747 P.2d 1124 (1987), to argue that the background investigation of Aulerich was reasonable as a matter of law. InScott, the parents sued the school for negligently hiring a teacher. After the teacher started working at the school, he had a sexual relationship with their daughter. Before hiring the teacher, the school contacted each of his previous employers and conducted more than one interview with him. Scott, 50 Wn. App. at 38-39. The court concluded that "[a]lthough certain specific questions identified by the Scotts were not asked, the process appears sufficient as a matter of law to discover whether an individual is fit to teach" at the school, and affirmed summary judgment. Scott, 50 Wn. App. at 43. Here, unlike in Scott, we cannot conclude that Bunch's investigation of Aulerich's background was reasonable as a matter of law. Bunch did not contact any of Aulerich's past employers except Rural/Metro and she did not verify either his dates of employment or whether he in fact still worked part time for Rural/Metro.
Bunch's background investigation of Aulerich is more similar toCarlsen than Scott. In Carlsen, a part time security guard, who worked for the company that provided security at a concert, attempted to rape a girl who asked for his help during the concert. The girl sued the employer for negligently hiring the security guard.Carlsen, 73 Wn. App. at 249. The court reversed summary judgment in favor of the employer because the employer did not conduct a background check, contacted no references, and did not investigate inconsistent statements in the job application. Carlsen, 73 Wn. App. at 249-251. The court also concluded the employer could be liable for the assault because (1) it occurred on the work premises; (2) the guard was on the job when he contacted the victim; and (3) the victim approached the guard for assistance because of his position. Carlsen, 73 Wn. App. at 256-57.
Viewing the evidence in the light most favorable to Hebert, there are genuine issues of material fact about whether Bunch exercised reasonable care in hiring Aulerich as a Cabulance driver. As in Carlsen, a trier of fact could find that "the circumstances of [Aulerich's] employment put him in a position of responsibility" and the greater risk of harm to third persons increased "'the degree of care necessary to constitute ordinary care.'" Carlsen, 73 Wn. App. at 256 (quoting Welsh Mfg., Div. of Textron, Inc., v. Pinkerton's, Inc., 474 A.2d 436, 440 (R.I. 1984).
Alternatively, Cabulance argues that even if Bunch was negligent in hiring Aulerich, any alleged negligence was not the proximate cause of the sexual assault of Hebert.
Proximate cause consists of cause in fact and legal causation.Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). "Cause in fact, or 'but for' causation, refers to 'the physical connection between an act and an injury.'" Ang v. Martin, 154 Wn.2d 477, 482, 114 P.3d 637 (2005) (quotingHartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985)). Cause in fact is generally a question of fact for the jury. Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). Legal causation is a question of law. Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 204, 15 P.3d 1283 (2001). "[L]egal cause is grounded in policy determinations as to how far the consequences of a defendant's acts should extend." Schooley, 134 Wn.2d at 468. The legal causation analysis focuses on whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability. The determination of legal liability depends on "mixed considerations of logic, common sense, justice, policy, and precedent." Schooley, 134 Wn.2d at 479 (quoting King v. Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)).
There is no question that if Bunch had not hired Aulerich, the assault against Hebert would not have occurred. Burnett testified that if Bunch had asked whether Aulerich still worked at Rural/Metro, she would have said no and would have told Bunch that Aulerich's termination date was December 13, 2002. Bunch also admitted that if she knew Aulerich had lied on his application, she would not have hired him.
Q. And if [Bunch] said, is he still working for you, you would have said no?
A. Obviously, because his termination date was 12/13/02.
Q. That's, in your judgment, grounds for either not hiring him or terminating him, correct? Falsifying an application?
A. Falsifying an application.
. . .
Q. [I]f they would have provided you that information . . . that he had been terminated or left employment of Rural/Metro, as I understand your testimony, given Mr. Aulerich's falsification of his employment records, you would not have hired him?
A. That's true.
Cabulance's reliance on Crisman v. Pierce County Fire Prot. Dist. No. 21, 115 Wn. App. 16, 60 P.3d 652 (2002), is unpersuasive. In that case, Crisman sued the fire district for negligent hiring after losing the election for fire district commissioner. Crisman alleged that the district's chief administrative officer, Burgess, coerced other employees into campaigning for the plaintiff's opponent. The court concluded that even if the district had properly investigated the background of the chief administrative officer before hiring him, it would only have learned "he had questionable management skills." Crisman, 115 Wn. App. at 21. The court held that "although the District may have hired an incompetent manager, any harm to Crisman was outside the scope of Burgess' duties. Accordingly, the District did not facilitate or enable Burgess' alleged unlawful campaign activities."Crisman, 115 Wn. App. at 21. But here, unlike inCrisman, a higher degree of care was required in hiring Aulerich as a Cabulance driver and there are material issues of fact about what Bunch would have learned from a reasonable investigation.
Because of the standard adopted by this court in Carlsen, the out of state cases Cabulance cites in support of its argument that there is no causal connection, Munroe v. Universal Health Servs, Inc., 596 S.E.2d 604, 606 (2004),Reed v. Kelly, 37 S.W.3d 274, 277 (Mo.Ct.App. 2000),Strickland v. Communications Cable of Chicago, 710 N.E.2d 55, 58 (Ill.App.Ct. 1st Dist. 1999), Rodriguez v. United Transp. Co., 677 N.Y.S.2d 130, 132 (N.Y.App. Div. 1st Dep't 1998), are inapposite.
We also cannot conclude that as a matter of law or as a matter of policy, the connection between negligently hiring Aulerich as a Cabulance driver and the harm to Hebert is so remote or insubstantial that that there is no legal liability. Viewing the evidence in the light most favorable to Hebert, we conclude that there are genuine issues of material fact about whether negligently hiring Aulerich was the cause of the sexual assault of Hebert.
Hebert also claims the trial court abused its discretion in denying her motion to amend the complaint to allege that Cabulance is a common carrier. Under CR 15(a), leave to amend should be freely given "except where prejudice to the opposing party would result." Caruso v. Local Union No. 690 of Int'l Bhd. of Teamsters, 100 Wn.2d 343, 349, 670 P.2d 240 (1983). Because we reverse the decision to grant summary judgment, we also vacate the court's denial of Hebert's motion to amend her complaint to allege Cabulance's common carrier status.
We note that "[i]n the vast majority of cases, the court will determine whether the party in question is a common carrier as a matter of law." 6 Washington Practice: Washington Pattern Jury Instructions: Civil 100.02, comment at 538 (2005). Common carrier status is determined by a three part test: "(1) the carriage must be part of the business; (2) the carriage must be for hire or remuneration; and (3) the carrier must represent to the general public that this service is a part of the particular business in which he is engaged, and that he is willing to serve the public in that business." McDonald v. Irby, 74 Wn.2d 431, 435, 445 P.2d 192 (1968).
In sum, because there are issues of material fact, we reverse the decision to grant summary judgment, vacate the order denying Hebert's motion to amend, and remand.