Blair v. Defender Services ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KRISTIN D. BLAIR, 
Plaintiff-Appellant,
v.  No. 03-1280
DEFENDER SERVICES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CA-02-601-7)
Argued: December 3, 2003
Decided: October 25, 2004
Before WIDENER and KING, Circuit Judges, and
Richard D. BENNETT, United States District Judge
for the District of Maryland, sitting by designation.
Affirmed in part, reversed in part, and remanded by published opin-
ion. District Judge Bennett wrote the opinion, in which Judge King
concurred. Judge Widener wrote an opinion concurring in part and
dissenting in part.
COUNSEL
ARGUED: Monica Taylor Monday, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia, for Appellant. John Dickens Eure,
JOHNSON, AYERS & MATTHEWS, Roanoke, Virginia, for Appel-
2 BLAIR v. DEFENDER SERVICES
lee. ON BRIEF: S.D. Roberts Moore, Andrew E. Carpenter, GEN-
TRY, LOCKE, RAKES & MOORE, Roanoke, Virginia, for
Appellant. Brian J. Brydges, JOHNSON, AYERS & MATTHEWS,
Roanoke, Virginia, for Appellee.
OPINION
BENNETT, District Judge:
Plaintiff Kristin D. Blair, a Virginia resident, brought this action
against Defender Services, Inc. ("Defender"), a South Carolina Cor-
poration, for injuries sustained as a result of a violent attack upon her
by James Lee Harris, an employee of Defender. Alleging claims
against Defender for negligent hiring, retention and supervision and
for respondeat superior liability, Blair filed a complaint in the Circuit
Court for the City of Roanoke, Virginia. The case was duly removed
to the United States District Court for the Western District of Virginia
on the basis of diversity of citizenship, pursuant to 28 U.S.C. §§ 1332,
1441 and 1446. Subsequently, the District Court granted Defender’s
motion for dismissal as to the negligent supervision count, pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 Upon the
conclusion of discovery, Defender moved for summary judgment as
to the remaining three claims. The District Court entered summary
judgment for Defender on all three counts, and Blair now appeals. We
affirm the decision of the District Court as to respondeat superior lia-
bility, but reverse that court’s entry of judgment for Defender on the
claims of negligent hiring and negligent retention, and remand this
case for further proceedings consistent with this opinion.
I.
This Court reviews a grant of summary judgment de novo and
applies the same standard as the District Court. Temkin v. Frederick
County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502
U.S. 1095 (1992); Baber v. Hospital Corp. of America, 977 F.2d 872,
1
The Plaintiff/Appellant has not appealed the District Court’s dismissal
of the negligent supervision claim.
BLAIR v. DEFENDER SERVICES 3
874 (4th Cir. 1992). Federal Rule of Civil Procedure 56 provides that
summary judgment "shall be rendered forthwith if the pleadings,
depositions, interrogatories and affidavits . . . show that there is no
genuine issue as to any material fact, and the moving party is entitled
to judgment as a matter of law." We have previously noted that, when
"the moving party has met its responsibility of identifying the basis
of its motion, the non-moving party must come forward with ‘specific
facts showing that there is a genuine issue for trial.’" White v. Rock-
ingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir. 1987) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In its review, this
Court must view such facts and all reasonable inferences in the light
most favorable to the non-moving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "If the evidence is
such that a reasonable jury could return a verdict for the non-moving
party" then a dispute over a material fact is genuine. Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 248 (1986).
In conducting this analysis, this Court recognizes that the instant
action was filed in Virginia state court and removed to federal court
based upon diversity of citizenship. Accordingly, the choice of law of
Virginia applies. See Klaxon Co. v. Stentor Electric Mfg. Co., 313
U.S. 487, 496 (1941). In evaluating the facts in the light most favor-
able to the non-moving party, we will apply Virginia substantive law
consistent with Virginia’s lex loci delicti, the law of the place of the
wrong. See, e.g., Jones v. R. S. Jones & Assocs., 246 Va. 3, 431
S.E.2d 33, 34, 9 Va. Law Rep. 1410 (Va. 1993); Buchanan v. Doe,
246 Va. 67, 431 S.E.2d 289, 291, 9 Va. Law Rep. 1446 (Va. 1993).
II.
On the morning of March 26, 2001, at approximately 11:30 a.m.,
Kristin D. Blair ("Blair"), a 19-year-old college freshman at Virginia
Polytechnic Institute and State University ("Virginia Tech"), entered
the digital art classroom in Henderson Hall on the Virginia Tech cam-
pus to work on a project prior to the commencement of a 2:00 p.m.
class session. When Blair arrived, other students were completing a
class in the room. By 12:30 p.m., all but a few of these students had
departed. Around that time, a man wearing blue jeans and a gray t-
shirt with a colorful logo entered the room and soon departed. A few
4 BLAIR v. DEFENDER SERVICES
minutes later, that same man returned and asked Blair, who was now
alone in the classroom, when the next class started.
At approximately 12:45 p.m., Blair left the classroom and observed
the same man standing in the middle of the hallway, with a large gray
bucket beside him. After walking to the end of the hallway, Blair
entered a unisex bathroom. When she opened the restroom door to
leave, the same man was standing in the doorway. Suddenly, this indi-
vidual grabbed Blair by her neck and pushed her back into the bath-
room. While straddling Blair and using both hands to strangle her, the
attacker pushed her to the floor. Blair lost consciousness during the
attack. She awoke on the bathroom floor, with her face swollen to the
extent that she only could see out of one eye.2 Blair then left the bath-
room and began screaming for help. A member of the Virginia Tech
administrative staff approached her and asked, "who did this?". Blair
pointed to the same man whom she had seen earlier, and who was
standing in the hallway.
The man identified by Blair was James Lee Harris, an employee of
Defender, which, pursuant to a contract, provided janitorial staffing
services on Virginia Tech’s campus.3 Eleven months prior to his
attack on Blair, a protective order had been issued against Harris in
the Giles County Juvenile and Domestic Relations Court.4 This pro-
2
There was no evidence of any sexual assault. Blair suffered broken
facial bones and subsequently underwent neck surgery. Since the inci-
dent, she has attempted suicide and has been diagnosed with Post Trau-
matic Stress Disorder.
3
The present record of this case indicates that Harris has denied that
he attacked Blair. Defender has not admitted that Harris was the attacker,
but has recognized that Blair’s evidence on this issue is strong. (Appellee
Br. at 2 n.1). In her brief to this Court, Blair has indicated that Harris was
criminally charged and entered a plea of "nolo contendere." (Appellant
Br. at 5). The Joint Appendix indicates that Harris was charged crimi-
nally. (J.A. at 329). As the District Court noted, it assumed for the pur-
poses of summary judgment that such factual disputes are to be resolved
in Blair’s favor. (J.A. at 331).
4
Giles County is the neighboring county to Montgomery County, in
which Virginia Tech is located. The protective order was entered on
April 2, 2000, and listed Harris’ home address in the town of Narrows,
BLAIR v. DEFENDER SERVICES 5
tective order resulted from a criminal complaint having been filed by
a woman who had been physically assaulted by Harris at a restaurant.
Harris previously had worked for Defender during a brief period
from November 1998 until January 1999. At that time, Defender
required Harris to complete an application that included a question
concerning any criminal charges, to which Harris answered that he
had no prior criminal convictions. Pursuant to a contract with Virginia
Tech, Defender assigned Harris to perform custodial work at Virginia
Tech under Virginia Tech’s supervision. That contract required
Defender to perform criminal background checks on all Defender per-
sonnel assigned to the Virginia Tech campus. A criminal background
check of Harris was not completed by Defender during this two-
month period.
In January of 1999, Harris quit his employment with Defender, and
became employed directly by Virginia Tech for approximately one
year. Harris returned to the employment of Defender for a brief two
weeks in October of 2000. Once again Harris completed another
application and indicated no criminal convictions. Defender did not
conduct a criminal background check with respect to Harris during
this second brief period of employment.
On February 5, 2001, Defender once again hired Harris. Unlike
Harris’ prior employment with Defender, he was not required to com-
plete any application on this third occasion. As with the previous
occasions, Defender did not conduct a criminal background check on
Harris prior to his employment. Defender’s representatives did, how-
ever, contact some of the personal references provided by Harris.
While Harris did not have a record of any criminal convictions, he
was subject to the aforementioned court protective order in neighbor-
ing Giles County.
which is located in Giles County. Harris resided in Pembroke, also
located in Giles County, at the time of his initial application for employ-
ment in 1998 (JA 128). His application for employment in October 2000
(JA 222), listed an address in the town of Ripplemead, which is also
located in Giles County.
6 BLAIR v. DEFENDER SERVICES
At all times, the contract between Defender and Virginia Tech spe-
cifically required Defender to perform criminal background checks on
all personnel assigned to Virginia Tech property. Expert testimony
offered in opposition to Defender’s motion for summary judgment
presented the view that Defender’s pre-employment screening of Har-
ris was inadequate. Specifically, there was evidence that Defender
would have discovered that Harris was the subject of a protective
order and criminal complaint in the neighboring county if a back-
ground investigation had been conducted as required.
III.
A. The Respondeat Superior Claim
The Supreme Court of Virginia in the cases of Gina Chin &
Assocs. v. First Union Bank, 260 Va. 533, 537 S.E.2d 573 (Va. 2000),
and Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 539
S.E.2d 426 (Va. 2000), both decided on the same day and authored
by Justice Lawrence L. Koontz, Jr., addressed the elements of a claim
against an employer for the wrongful acts of an employee based on
the doctrine of respondeat superior. In Gina Chin, the court noted
that "(a)lmost from its first consideration by the courts of this Com-
monwealth . . . the determination of the issue [of] whether the
employee’s wrongful act was within the scope of his employment
under the facts of a particular case has proved ‘vexatious.’" 537
S.E.2d at 576-577 (citations omitted). In Majorana, the court
explained that:
When the plaintiff presents evidence sufficient to show the
existence of an employer-employee relationship, she has
established a prima facie case triggering a presumption of
liability . . . the burden of production then shifts to the
employer, who may rebut that presumption by proving that
the employee had departed from the scope of the employ-
ment relationship at the time the injurious act was commit-
ted.
539 S.E.2d at 429 (citations omitted).
BLAIR v. DEFENDER SERVICES 7
The District Court correctly viewed all facts in the light most
favorable to Blair in assuming that Harris was an employee of
Defender at the time of the attack on March 26, 2001. This Court con-
curs that Blair has met her burden in presenting sufficient evidence
that Harris was an employee of Defender. However, any presumption
of liability may be rebutted by proof that Harris had departed from the
scope of that employment.
Even viewing the facts in the light most favorable to Blair on this
issue, we find that the District Court correctly concluded that Harris’
actions had nothing to do with his performance of janitorial services.
The District Judge thoroughly reviewed applicable Virginia law in
reaching this conclusion.
It is well established that the simple fact that an employee is at a
particular location at a specific time as a result of his employment is
not sufficient to impose respondeat superior liability on the employer.
Cary v. Hotel Rueger, Inc., 195 Va. 980, 81 S.E.2d 421, 424 (Va.
1954). However, as the District Court noted, Virginia Courts have not
"automatically" placed intentional torts "outside the scope of employ-
ment for purposes of vicarious liability." See, e.g., Davis v. Merrill,
133 Va. 69, 112 S.E. 628, 630-32 (Va. 1922). The District Judge cor-
rectly noted that the test set forth in the Gina Chin case is whether
"the service itself, in which the tortious act was done, was within the
ordinary course of the employer’s business." Gina Chin, 537 S.E. 2nd
at 579.
In Gina Chin, supra, the Supreme Court of Virginia noted its ear-
lier opinion in Kensington Associates v. West, 234 Va. 430, 362
S.E.2d 900, 4 Va. Law Rep. 1269 (Va. 1987). In that case, the court
reversed a jury verdict in favor of a plaintiff-construction worker, and
entered final judgment in favor of the employer of an individual who
had engaged in "horseplay" in shooting the plaintiff. 362 S.E.2d at
903-04. The court noted that this horseplay was not done to further
the employer’s interest, and also noted its earlier opinion in
Abernathy v. Romaczyk, 202 Va. 328, 117 S.E.2d 88 (Va. 1960). Id.
In Abernathy, the court reversed a jury verdict and held "as a matter
of law" that a delivery man was not acting within the scope of his
employment when he participated in a scuffle over who had caused
a traffic accident. 117 S.E.2d at 92-93.
8 BLAIR v. DEFENDER SERVICES
The present case falls within the ambit of these Virginia cases. Har-
ris’ assault on Blair is clearly distinguishable from situations where
the employee’s wrongful conduct was related to the nature of the
employment. In the Gina Chin case, a bank teller embezzled money,
while in the Majorana case, a gas station employee sexually harassed
a customer during payment by the customer. When Harris embarked
on independent acts to attack Blair, he clearly acted outside the scope
of his employment. We hold that this act was so great a deviation
from Defender’s business that the District Court correctly granted
Defender’s motion for summary judgment on the respondeat superior
liability claim as a matter of law.
B. The Negligent Hiring and Negligent Retention Claims
The recognition of claims for negligent hiring and negligent reten-
tion can be traced in Virginia case law to the opinion of the Supreme
Court of Virginia in Big Stone Gap Iron Co. v. Ketron, 102 Va. 23,
45 S.E. 740, 102 Am. St. Rep. 839 (Va. 1903). See Courtney v. Ross
Stores, Inc., 1998 Va. Cir. LEXIS 143, 45 Va. Cir. 429, 430 (1998)
(tracing history of negligent hiring and retention under Virginia state
law). In Big Stone, the court recognized a duty of a company to exer-
cise "reasonable care" in a hiring decision, and a distinction between
the hiring and the retention of an employee. 45 S.E. at 741. Subse-
quently, the Supreme Court of Virginia explicitly recognized the inde-
pendent torts of negligent hiring in Davis v. Merrill, 133 Va. 69, 112
S.E. 628 (Va. 1922), and negligent retention in Norfolk Protestant
Hospital v. Plunkett, 162 Va. 151, 173 S.E. 363 (Va. 1934).
In J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 372
S.E.2d 391, 393, 5 Va. Law Rep. 637 (Va. 1988), the Virginia
Supreme Court held that allegations of negligent hiring had set forth
a cause of action under Virginia law. In that case, the mother of a ten-
year-old girl brought suit against a church and its pastor as a result
of the rape and sexual assault of the girl by an employee of the
church. Victory Tabernacle, 372 S.E.2d at 392. It was alleged that
when the church hired this employee it "knew, or should have known,
that [the employee] had recently been convicted of aggravated sexual
assault on a young girl, that he was on probation for the offense, and
that a condition of his probation was that he not be involved with chil-
dren." Id.
BLAIR v. DEFENDER SERVICES 9
The defendants filed a demurrer, contending that the plaintiff had
failed to state a cause of action. Id. The Supreme Court of Virginia
specifically addressed "only whether the allegations of negligent hir-
ing . . . state a cause of action in Virginia." Id. at 392-393. In revers-
ing the trial court’s granting of a demurrer on this question, the court
held that the plaintiff had asserted a claim of negligent hiring, distinct
from a claim for respondeat superior liability. Id. The court discussed
at length its earlier opinion in Davis v. Merrill, supra, noting that
when the wrongdoing employee in that case "was interviewed . . . no
one made inquiry concerning his past record, habits, or general fit-
ness," and further commented to the effect that "had [the employer]
investigated, it probably would not have offered the assailant the job."
Id. at 393.
In the instant case, the District Court found that "no reasonable trier
of fact" could find that Defender knew or should have known of Har-
ris’ criminal problems in the neighboring county some eleven months
earlier. We respectfully disagree. There is a genuine issue of material
fact with respect to whether Defender should have known of Harris’
violent conduct, as the undisputed facts are that Defender never con-
ducted any type of criminal background check on Harris prior to
employing him. While Defender can certainly argue that such a back-
ground check would not have resulted in the discovery of the protec-
tive order issued in April 2000, and a jury could certainly so find,
there is expert testimony proffered by Blair that a background check
would have indicated the existence of a protective order resulting
from a criminal complaint.
The trial court and Defender placed great reliance on the Virginia
Supreme Court’s opinion in Southeast Apts. Mgmt., Inc. v. Jackman,
257 Va. 256, 513 S.E.2d 395 (Va. 1999). In that case, a tenant was
molested by a maintenance person of the apartment building after his
entry into her apartment. The tenant claimed that the owner of the
apartment building breached its duty "to exercise reasonable care in
the hiring of its employee . . . or . . . in the retention of the employee."
513 S.E.2d at 395-396. The court noted its earlier opinions in Victory
Tabernacle, supra, and Davis v. Merrill, supra, in establishing the tort
of negligent hiring. In providing further edification of this tort, the
court cited the following summary provided by a Minnesota state
court:
10 BLAIR v. DEFENDER SERVICES
Liability is predicated on the negligence of an employer in
placing a person with known propensities, or propensities
which should have been discovered by reasonable investiga-
tion, in an employment position in which, because of the cir-
cumstances of the employment, it should have been
foreseeable that the hired individual posed a threat of injury
to others.
Id. at 397 (citing Ponticas v. K.M.S. Inv., 331 N.W.2d 907, 911
(Minn. 1983)).
In the Southeast Apts. decision, the Virginia Supreme Court further
noted its recognition of the tort of negligent retention in its earlier
opinion in Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d
268, 4 Va. Law Rep. 2568 (Va. 1988). The court in Southeast Apts.
stated that the tort of negligent retention was based "on the principle
that an employer owning leased premises is subject to liability for
harm resulting from the employer’s negligence in retaining a danger-
ous employee who the employer knew or should have known was
dangerous and likely to harm tenants." 513 S.E.2d at 397. Similarly,
this Court recognized this principle of Virginia law in our opinion in
Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 269 (4th Cir.
2001).
In applying the above principles to the facts before it, the court in
Southeast Apts. held that the evidence was "insufficient to make out
a prima facie case of negligent hiring or negligent retention." 513
S.E.2d at 397. The facts presented in Southeast Apts. were that the
owner had "received a detailed application containing information
about [the employee’s] personal background, work experience, and
behavioral history." Id. In responding to the application inquiry, the
employee denied any engagement in "34 types of criminal behavior,
except traffic violations." Id. Furthermore, he denied any criminal
convictions "in the past seven years." Id. In addition to the thorough
steps taken by the employer, the evidence in Southeast Apts. indicated
that the wrongdoing employee had two previous bad-check charges
totaling $10.29. Id. Importantly, there were no criminal convictions
or protective orders involving violent acts perpetrated on women. Id.
The facts in the instant case are clearly distinguishable from those
found in Southeast Apts., and are much closer to the facts addressed
BLAIR v. DEFENDER SERVICES 11
by the Supreme Court of Virginia in Victory Tabernacle, supra. In the
present case, Defender failed to conduct a background check of Harris
on three different occasions. It is undisputed that Defender was con-
tractually obligated to Virginia Tech to conduct a background check
of employees such as Harris. Furthermore, the instant record includes
the statement of Virginia Tech’s Director of Housekeeping, who indi-
cated that he would not have allowed Harris to perform janitorial ser-
vices at Virginia Tech had he known of Harris’ propensity for
violence.
With respect to Blair’s claim of negligent hiring, we find that there
is a genuine issue of material fact concerning whether Harris’ violent
propensities should have been discovered by Defender prior to Harris
being placed into an employment situation in which he posed a threat
to Virginia Tech students. Similarly, in addressing Blair’s claim of
negligent retention, we find that there is a genuine issue of material
fact regarding whether Defender, having originally employed Harris,
should have known or discovered Harris’ dangerous propensities as
a result of the protective order issued eleven months earlier. Quite
simply, based on the facts of the instant case, these are questions to
be resolved by the jury as the finder of fact.
For the foregoing reasons, we affirm the District Court’s granting
of summary judgment on the respondeat superior claim, but vacate
the District Court’s order granting summary judgment on Blair’s
claims of negligent hiring and negligent retention, and remand this
case for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
WIDENER, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent. While I agree with the result reached by the
majority which affirms the district court’s grant of summary judgment
on the respondeat superior claim, I am of opinion that the district
court’s order granting summary judgment to Defender Services on
Miss Blair’s claims of negligent hiring and negligent retention should
be affirmed, as well.
12 BLAIR v. DEFENDER SERVICES
The district court correctly found that,
[g]iven that prevailing Virginia law does not obligate an
employer who has asked about criminal history and been
told that none exists and who has no reason to suspect a
criminal record to investigate prior criminal record "in the
exercise of reasonable care," no reasonable trier of fact
could hold Defender Services negligent for not making the
far more detailed background search that might have
brought a temporary restraining order to light.
(quoting Southeast Apartments Management, Inc. v. Jackman, 257
Va. 256, 261, 513 S.E.2d 395, 397 (1999)). District Court Slip op. at
7-8. Therefore, I would affirm all the findings of the district court.
The majority relies on "expert testimony proffered by Blair that a
background check would have indicated the existence of a protective
order resulting from a criminal complaint." Slip op. at 9. The expert
testified in an affidavit that the emergency protective order "should
have been discovered by a reasonable background investigation" and
that "[h]ad Defender Services, Inc. performed a criminal background
check, they would have discovered the Protective Order and Harris’
assignment to Virginia Tech would not have been approved."
Miss Blair’s principal argument is that Defender Services failed to
conduct a reasonable pre-employment investigation into Harris’ crim-
inal background as the contract between Defender Services and Vir-
ginia Tech required, and because it did not, it is liable for negligent
hiring. The contract between Defender Services and Virginia Tech
cannot, however, give rise to a tort duty owed by Defender Services
to Miss Blair. An unfulfilled contractual responsibility alone cannot
automatically create tort liability. Richmond Metropolitan Authority v.
McDevitt Street Bovis, Inc., 256 Va. 553, 558, 507 S.E.2d 344, 347
(1998) (noting that "the duty tortiously or negligently breached must
be a common law duty, not one existing between the parties solely by
virtue of a contract" (emphasis added)).
The majority concludes that a genuine issue of material fact exists
as to whether Defender Services should have known of Harris’ pro-
pensities because it did not perform a criminal background check.
BLAIR v. DEFENDER SERVICES 13
Slip op. at 9. Virginia law, however, does not obligate an employer
who has asked about criminal history and been told that none exists,
and who has no reason to suspect a criminal record, to investigate a
prior criminal record "in the exercise of reasonable care." Southeast
Apartments, 257 Va. at 261, 513 S.E.2d at 397. Moreover, "proof of
the failure to investigate a potential employee’s background is not
sufficient to establish the employer’s liability. Rather, the plaintiff
must show that an employee’s propensity to cause injury to others
was either known or should have been discovered by reasonable
investigation." Majorana v. Crown Central Petroleum Corp., 260 Va.
521, 531, 539 S.E.2d 426, 431 (2000).
Even further, and persuasive, Virginia statutory law states that
"[t]he issuance of an emergency protective order shall not be consid-
ered evidence of any wrongdoing by the respondent." Va. Code
§ 16.1-253.4(G). Also, "[a]n emergency protective order issued pursu-
ant to this section shall expire seventy-two hours after issuance." It
may be extended until 5:00 p.m. the next business day the court is in
session, which was done here until April 10, 2000 at 5:00 p.m. Va.
Code § 16.1-253.4(C).
The emergency protective order was issued in the interim period
between Harris’ first and second employment with Defender Services.
Harris’ application for employment is dated October 4, 2000, and the
application for the protective order is dated April 2, 2000, as is the
protective order. Even if the protective order has something to do with
the case, which is forbidden by Va. Code § 16.1-254(G), it had
expired on April 10, 2000, almost six months prior to the time the
application for employment was made. Defender Services had no rea-
son to suspect, based on its initial investigation and employment of
Harris and his employment with Virginia Tech, which had received
a negative criminal background check, that Harris was capable of any
violence. Further, there was no evidence presented that an emergency
protective order would have been discovered in a criminal back-
ground check. Majorana, 260 Va. at 532, 539 S.E.2d at 432. In fact,
the check run by the investigating officer after the attack on Miss
Blair in March 2001 showed no convictions. To discover an emer-
gency protective order in a potential employee’s history, an additional
investigation must be executed. This additional inquiry, when a crimi-
nal background check shows no convictions, would require an investi-
14 BLAIR v. DEFENDER SERVICES
gation that goes beyond "the exercise of reasonable care." Southeast
Apartments, 257 Va. at 261, 513 S.E.2d at 397.
Therefore, even if Defender Services had taken the extra step to
examine the records of the court not of record in Harris’ county of
residence to discover the existence of an emergency protective order,
under Virginia law it could not use that information as evidence of
any wrongdoing on Harris’ part. Holding Defender Services negligent
for not making the far more detailed background search that might
have brought an emergency protective order to light would be unrea-
sonable and would impose an undue burden on an employer’s hiring
practice.
The upshot of the majority decision is that we are engrafting on
Virginia law a requirement that in each case of employment a pro-
spective employer must search for even unsuccessful misdemeanor
prosecutions in the records of the courts not of record of the county
of residence of the applicant, here Giles County, although not the
same as the place of employment, here Montgomery County. In
default of such a search we hold the employer may be found negli-
gent. In my opinion this is an unreasonable burden to place on
employers. Far worse is the disqualification from employment placed
on youth by our decision.
I am thus of opinion that the judgment of the district court should
be affirmed.