Opinion
No. 61297-2-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-20866-8, Douglass A. North, J., entered April 6, 2007.
Affirmed by unpublished per curiam opinion.
Tiffini Thompson and Josie Lenk-Naputi (collectively, Thompson) sued the owners of an apartment complex for negligent hiring after a maintenance person at the complex sexually molested them. The trial court did not err by summarily dismissing Thompson's claims against the owners because their hiring of the maintenance person was not the proximate cause of the girls' harm. We affirm.
FACTS
Kevin Linker was a tenant at the Royal Firs Apartments in Kent, Washington. In August 1993, Linker applied for a job doing painting and light maintenance for the Royal Firs, which was owned by Peter and Grace Wang. Linker left blank a part of the employment application asking about his criminal history. But before hiring Linker, Grace Wang paid a company to run a credit check on him, and the credit report included a section for public records that Wang assumed would show if Linker had a criminal record. The credit report, however, did not reflect that Linker was convicted in California in 1986 for committing lewd and lascivious acts with children.
Linker's second floor apartment at the Royal Firs was across a playground from a ground floor unit occupied by Nevada Williams and her daughter, Tiffini Thompson, who was five years old in 1993. Williams' five-year-old niece, Josie Lenk, often visited Williams and Tiffini at the Royal Firs. One day, Williams discovered that Tiffini and Josie had been "play[ing] house" in Linker's apartment. The young girls later told their mothers that Linker sexually molested them.
In 1994, Linker pleaded guilty to three counts of first degree child molestation. In 2006, Matthew Dubin, as guardian ad litem for Tiffini and Josie, filed a complaint against Linker and the Wangs. The complaint alleged that the Wangs negligently hired Linker and that Linker sexually assaulted and committed the tort of outrage against them.
Apparently, the plaintiffs voluntarily dismissed an earlier complaint filed against the Wangs, and after Tiffini and Josie reached adulthood, they replaced Dubin as the plaintiffs.
The Wangs argued in a motion for summary judgment that their hiring of Linker was not the proximate cause of the girls' harm. The trial court granted summary judgment and dismissed Thompson's claims against the Wangs. Thompson appeals.
Thompson earlier asked this court for discretionary review, but a court commissioner denied the request because the claims against Linker remained, and the strict requirements for discretionary review were not satisfied. Thompson then obtained a default judgment against Linker, who is incarcerated. He is not a party to this appeal.
ANALYSIS
Thompson argues that the trial court erred by entering summary judgment in the Wangs' favor because sound public policy mandates that convicted sex offenders not be employed to work in areas frequented by children. Thompson's argument fails because the tasks, premises, and instrumentalities entrusted to Linker as a painter and maintenance person were not what endangered her, and the Wangs' hiring of Linker was not the proximate cause of her injuries.
Thompson asserts that the Wangs conceded below that their negligence was the factual cause of the plaintiffs' harm. That is incorrect. The Wangs argued in their motion for summary judgment, as they do on appeal, that there was no direct connection between Linker's employment and Thompson's harm, but even if there was, Thompson's injuries were too remote from their actions to hold them liable.
A motion for summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. This court reviews orders granting summary judgment de novo.
Cerillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155 (2006).
To prevail in a suit for negligent hiring, the plaintiff must prove that (1) the employer knew or, in the exercise of ordinary care, should have known that the employee was unfit when hired; and (2) the negligently hired employee proximately caused the plaintiff's injuries. An employer's duty, however, is limited to preventing "'the tasks, premises, or instrumentalities entrusted to an employee from endangering'" foreseeable victims.
Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 252-53, 868 P.2d 882 (1994).
Betty Y. v. Al-Hellou, 98 Wn. App. 146, 149, 988 P.2d 1031 (1999) (quoting Niece v. Elmview Group Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997)).
Proximate cause has two elements: "cause in fact and legal causation." "Cause in fact" refers to the actual, generally physical, cause of the injury. A defendant's action is a "[c]ause in fact" of the plaintiff's injury if, but for the defendant's action, the plaintiff would not have been injured. In contrast, "legal causation" involves a policy determination as to how far the consequences of the defendant's acts should extend. The policy considerations analyzed in determining whether a defendant's acts were the legal cause of the plaintiff's injury are intertwined with the policy considerations analyzed when determining whether the defendant owed a duty to the plaintiff.
Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998).
Schooley, 134 Wn.2d at 478; Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985).
See Ang v. Martin, 154 Wn.2d 477, 490, 114 P.3d 637 (2005).
Schooley, 134 Wn.2d at 478-79.
Schooley, 134 Wn.2d at 479-80.
The trial court granted summary judgment in favor of the Wangs because "[e]verything that Mr. Linker did in this case he could have done without being an employee, just by being a resident in that apartment complex." We agree. Thompson's harm did not flow from the "'tasks, premises, or instrumentalities'" entrusted to Linker as a painter and maintenance person at the apartments. The Wangs, therefore, did not owe a duty to Thompson to protect her from the harm that Linker caused. Furthermore, the connection between Thompson's harm and the Wangs' act of hiring Linker was too remote to hold the Wangs liable.
See Betty Y., 98 Wn. App. at 149 (quoting Niece, 131 Wn.2d at 48).
Thompson contends that the circumstances in her case are distinguishable from those in Betty Y., wherein the court held that the employer was not liable. But that case supports the trial court's decision in this case.
In Betty Y., an employer hired a laborer to rehabilitate vacant apartments. The laborer befriended a 14-year-old boy who lived near the apartments. On occasion, the laborer paid the boy to sweep the apartments. One day, the boy accepted the laborer's invitation to go to the mall. They met at the apartments, but instead of going to the mall, the laborer took the boy home and raped him. The laborer pleaded guilty to third degree child rape, but the boy's claim against the laborer's employer was dismissed on summary judgment.
The employer was aware that the laborer had been convicted in Texas for child molestation. Nevertheless, the trial court concluded that the employer's act of retaining the laborer as an employee was not the proximate cause of the boy's harm. The appellate court affirmed after concluding that the employer did not owe a duty to the boy. The laborer "was not hired to work with potential victims, the rape did not occur on the work premises, and, most importantly, the job duties did not facilitate or enable [the laborer] to commit the rape. Thus, the tasks, premises, and instrumentalities entrusted to [the laborer] were not what endangered the victim."
Betty Y., 98 Wn. App. at 152.
Betty Y., 98 Wn. App. at 150.
Thompson contends that her case is distinguishable from Betty Y. because Linker was hired to work in areas where children played and contact with children was unavoidable. But Linker was not hired to work with children, and he had no more access to children as a maintenance person than he had as a tenant at the apartments. Linker molested Thompson in his own apartment, and his duties as a maintenance person did not enable him to commit the assaults. Thompson's claims against the Wangs fail as a matter of law.
The record does not support Thompson's assertion that Linker had a master key to all of the apartments, enabling him to gain access to children. A psychologist who submitted a declaration in opposition to the Wangs' motion for summary judgment indicated that Linker had a master key, but no admissible evidence supported that assertion. See CR 56(e) (affidavits in support of, or in opposition to, a motion for summary judgment must be based on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that the affiant is competent to testify on the matter).
CONCLUSION
The trial court did not err when it dismissed Thompson's claims against the Wangs on summary judgment because Thompson's harm did not result from the tasks, premises, or instrumentalities of Linker's job as a maintenance person. The decision of the trial court is affirmed.