Negligence Claim Against Background Check Company
Published by Eric A. Welter on October 27, 2011
A company that screens job applicants is facing a negligence claim for allegedly missing the criminal record of a leasing agent hired by a Falls Church apartment complex. The leasing agent was later convicted of capital murder and rape of a resident that took place while he was an employee of the apartment complex. More […]
A company that screens job applicants is facing a negligence claim for allegedly missing the criminal record of a leasing agent hired by a Falls Church apartment complex. The leasing agent was later convicted of capital murder and rape of a resident that took place while he was an employee of the apartment complex. More after the break.
The Fairfax County Circuit Court has found that an action against third party background check company that allegedly failed to find an “extensive” criminal record may proceed under a claim of negligent performance under a contract. Under Virginia law, a third party background check company may be liable for negligent performance under a contract where its negligence caused physical harm or death to a third party.
On February 22, 2011, Mark Lawlor was found guilty of capital murder and rape and was later sentenced to death in connection with the death of Genevieve Orange, who lived in the Prestwick Apartments, in Falls Church, Virginia. At the time of the murder, Lawlor was allegedly an employee of Berkshire Property Advisors LLC which managed the apartments. Lawlor’s employment gave him access to the building at all hours. Prosecutors in the criminal case claimed Lawlor used a passkey to enter Orange’s locked apartment as she dozed on her couch.
Liberty Screening Services, Ltd. allegedly did the background check on Lawlor before he was hired as a leasing agent for Prestwick Apartments. Liberty purportedly said Lawlor had no criminal record. Lawlor, however, “had an extensive criminal record including, but not limited to, felony convictions for the abduction/kidnapping [sic] of a woman, as well as the burglary and unlawful entry of her home, for which he served six years in prison.”
Ms. Orange’s mother brought a wrongful death action as administrator of her daughter’s estate. Ms. Orange sued Liberty and the apartment complex’s owner and the management company. Plaintiff brought three causes of action, including wrongful death by negligence against both Berkshire and Liberty.
Liberty demurred to Count II, arguing that Plaintiff did not, and cannot, allege a common law duty that Liberty owed Ms. Orange which “arose separate and apart” from Liberty’s contractual relationship with the Berkshire Defendants and give rise to a cause of action. Plaintiff contends that she set forth a basis for negligence liability, namely that Liberty undertook a duty to perform Lawlor’s criminal background check, and that, having undertaken that contractual duty, Liberty had a corresponding duty to use reasonable care in carrying out the investigation.
The Court dismissed Orange’s claim for negligent hiring without prejudice, allowing Orange to amend her complaint to allege Liberty’s negligent performance of the pre-employment screening contract. The Court granted leave to amend after deciding whether an injured third party might have a cause of action sounding in tort against a party who negligently performed a contractual duty. Finding that the circumstances alleged could give rise to a negligence claim under Virginia law, the Court sustained the Demurrer without prejudice.
The Court found that under Virginia case law, as well as that from other jurisdictions, Plaintiff can allege a cause of action for negligence against Liberty based on its assumption of duty, even though it was only contractually bound to Berkshire. Virginia courts have previously recognized an independent duty sounding in tort where a party’s negligent performance under a contract caused physical harm or death to a third party. See Boland v. Rivanna Partners, et. al. 69 Va. Cir. 308 (Charlottesville 2005) (finding that an independent contractor entering into an agreement with a shopping plaza operator to plow snow and ice retained an independent duty to use reasonable care because the act of clearing the parking lot was not just for the benefit of the owner but also for the benefit of the plaintiff/customer and others like her); Gonella v. Lumbermans Mutual Casualty Co., et. al., 64 Va. Cir. 229 (Fairfax 2004) (recognizing an independent duty to perform a contractual duty even where the parties are in privity of contract).
A copy of the court’s opinion letter can be found here.Topics: HR