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A trucking company cannot be held liable for the negligent hiring of a driver who shot two people after his truck went off a road in Reynoldsville, Pa., a Pennsylvania three-judge Superior Court panel has ruled. Because the driver had left his truck and the people he shot had no connection to his employer, the unanimous court said his conduct was “outrageous” and was not done within the scope of employment. Although employers can be, and have been, held liable for an employee’s criminal and intentional harmful acts, the Superior Court stressed in Brezenski v. World Truck Transfer Inc., that such liability has its limits. The employee, Rodney Crew, worked for World Truck, a business that transports trucks for customers throughout the country. Crew was hired on the same day he submitted a job application to World Truck, even though the application was incomplete. It was missing an employment history between July 1991 and November 1993 and did not mention that a company called Atlas Transfer had employed him previously. No background check was completed. While Crew was training with World Truck in Arkansas, his supervisor, Thomas Pelham, and another employee, Roland Edwards, noticed that Crew had a .32 caliber derringer pistol and ammunition. They told Crew he should send the gun home because the possession of firearms was against company policy, but they found out the next day that he had not. Crew began driving with Pelham and Edwards a few days later. At one point, they had to fly from Indianapolis to Nebraska so they could drive a truck to Medina, Ohio. Knowing that a firearm could not be carried on an airplane, Pelham and Edwards came up with a plan to transport the gun by truck to Medina. The three drivers and the gun arrived in Medina and started a drive caravan-style to Maryland. Crew became separated from Pelham and Edwards and wound up in Reynoldsville, Pa., where his truck went off the road and onto the front yard of Pamela and Michael McMahon’s home. Crew could not get the truck off the lawn, so he asked Michael to call World Truck. Crew spoke with the company’s dispatcher and president. Michael called the company later to inform them that he had called a tow truck to help Crew. World Truck told Michael it would pay for the damage to his property. Michael them went across the street to a florist shop, and as he was standing there, Crew shot him twice in the back of the head. Michael died after he was taken to the hospital. Crew ran off down the road, where Michael Brezenski had the misfortune of stopping to give him a ride in his pick-up truck. Crew shot Brezenski twice in the chest; when the truck crashed and Brezenski rolled out of it, Crew shot him once more. Crew fled the scene in a stolen truck, but he was eventually arrested after a high-speed chase. MENTAL HISTORY Pamela McMahon and Brezenski sued World Truck under the theories of vicarious liability and negligent hiring and retention of Crew. In their action, the plaintiffs submitted an expert report stating that Crew had suffered from paranoid schizophrenia for several years before he began working for World Truck and that the condition was likely evident when he was hired. Evidence was also presented that when Crew was working for Atlas he had a nervous breakdown on the job. He was fired after being carried away by a sheriff for threatening to kill people. At one point he was involuntarily committed to a mental hospital. And Crew was fired for “incompetence and mental instability” from a job with Smith Transport only about a month before World Truck hired him. Judge Joseph Del Sole, writing for the unanimous court, explained that an employer can be held vicariously liable for its employee’s negligent conduct if the act was committed within the scope of employment. That liability can extend to intentional and criminal acts, but “if the act is done for personal reasons, or in an outrageous manner, it is not done within the scope of employment,” Del Sole said. The court found Crew’s conduct fit into that latter category. “Crew’s action in this case, shooting two individuals who had no connection to the employer, was outside the scope of Crew’s employment. His actions in no way furthered the purpose of his employment, and can only be characterized as outrageous, as well as criminal,” Del Sole said. “World Truck cannot be held responsible under this theory as a matter of law, and the trial court’s grant of summary judgment on this claim was proper.” NEGLIGENCE CLAIMS Del Sole said the question of World Truck’s negligence was a much more complicated issue. He noted the decision of a deeply divided Pennsylvania Supreme Court in Hutchison v. Luddy, in which the justices said the appropriate analysis in such cases is to consider both common law and Section 317 of the Restatement (Second) of Torts. Under common law, an employer can be liable if it knew or should have known that an employee was dangerous, careless or incompetent and that his or her employment could result in a situation where a third party would incur harm. Section 317 relates to the duty of the master to control the conduct of a servant. The language of that section states that the master has a duty to protect third parties from harm by a servant if “the servant is upon the premises in possession of the master” or “is using a chattel of the master” or if the master has reason to know that the servant must be controlled. The justices in Hutchinson criticized the Superior Court for looking at only Section 317 when the intermediate appeals court decided that a church could not be held liable for a priest’s molestation of a boy. The Superior Court said that since the alleged molestation took place in a motel and not on church property, Section 317 was “inapplicable to the facts at hand.” The majority of the Supreme Court found that the church knew the priest had a propensity for pedophilic behavior and that his job would put him in the position to continue practicing that behavior. Because the church did nothing to stop that behavior, the majority found it was negligent. The Hutchison majority also concluded that Section 317 applied because a jury could find on the basis of the boy’s testimony that he rented the hotel room so that the priest could help with his personal problems, so that it was the priest’s role as the boy’s spiritual adviser that gave him access to the room. The issue in World Truck’s case was whether it, as master, had a duty to control the conduct of Crew, as servant, while Crew was acting outside the scope of his employment so as to prevent him from harming others. Del Sole said not only was Crew not on World Truck’s property when he committed the acts at issue, but he did not enter the premises where the shootings occurred through any privilege incurred by his employment. “Neither [Michael] McMahon nor Brezenski were customers of World Truck, and Crew’s contact with them was not related to his job,” Del Sole said. It could also not be said that Crew was using World Truck’s chattel when he fired the shots, the court found. “This is not a case where reckless or unlawful driving was the cause of injuries. The truck was not involved in the shooting. Crew used his own personal gun to shoot and kill McMahon across the street from McMahon’s home, in the parking lot of a florist,” Del Sole said. “Any use by Crew of his master’s chattel is even more removed from the shooting of Brezenski. … The truck was merely the means by which Crew traveled to the area; it was not used by Crew to facilitate the shootings. Accordingly, analyzing this case under Section 317 of the Restatement, recovery cannot be had.” Under ordinary negligence principles, Del Sole said, the victim has the burden of proving that the employer breached its duty to protect others from harm. The scope of that duty is limited to reasonably foreseeable risks. LIMITED DUTY In 1997, the Superior Court held in J.E.J. v. Tri-County Big Brothers/Big Sisters that a youth organization had no duty to a child who was not associated with the organization but was sexually abused by a former volunteer, even though the volunteer had previously abused another child and the organization had not reported it. The court said only a general duty of care applied because neither the child nor the child’s family had any ties to the organization, although it found the duty did not actually extend to the plaintiffs. Because World Truck did not have a special relationship with either the McMahons or Brezenski, Del Sole said, only a general duty applied, limited to protecting them from reasonably foreseeable risks. The court concluded that the shootings were not foreseeable. “Crew traveled miles outside his posted route, and as a result of an unforeseen and tragic happenstance, he encountered these two individuals. While knowledge of Crew’s possession of a weapon against company policy may be imputed to World Truck, his attack could not be foreseen,” Del Sole said. “Crew’s criminal act toward these strangers did not relate to employment or his fitness as a truck driver.” Even if World Truck had more thoroughly screened Crew, the court said, it was unlikely that it would have uncovered documentation of his past hospitalization and diagnoses. “Even accepting, as we must for purposes of summary judgment review, the fact that Crew was discharged from prior employment for incompetence and mental instability, the crimes involved in this case are too remote from Crew’s employment as a truck driver and unforeseeable to hold World Truck responsible,” Del Sole wrote.

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