PRESENT: Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and
Poff and Compton, S.JJ.

INTERIM PERSONNEL OF
CENTRAL VIRGINIA, INC.

v.   Record No. 010796

MILDRED LYNN MESSER, ET AL.                OPINION BY
                                SENIOR JUSTICE A. CHRISTIAN COMPTON
ALUMNI ASSOCIATION OF THE                 March 1, 2002
UNIVERSITY OF VIRGINIA

v.   Record No. 010799

MILDRED LYNN MESSER


       FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                     Edward L. Hogshire, Judge

      In these appeals arising from a single action alleging

negligent hiring, the dispositive question is whether the trial

court erred in ruling that foreseeability was a jury issue.

      In November 1998, plaintiff Mildred Lynn Messer was injured

when the vehicle she was operating near Charlottesville was

struck from the rear.    The collision was caused by defendant

Ricky Edward East, who was intoxicated and was negligently

operating a pickup truck that he had stolen from defendant

Alumni Association of the University of Virginia.

      Subsequently, the plaintiff filed this tort action seeking

recovery for her injuries against East, the Association, and

Interim Personnel of Central Virginia, Inc.   Interim was a

staffing agency that provided temporary personnel to businesses
needing light industrial, administrative, and clerical support

employees.   The only theory of liability against the Association

and Interim presented to the jury was negligent hiring.

     In a September 2000 trial, the jury found in favor of the

plaintiff against all defendants, fixing her compensatory

damages at $100,000, plus interest.   The jury also awarded

punitive damages of $25,000 against East.

     Overruling motions of the Association and Interim to set

the verdict aside, the trial court entered judgment on the

verdict.   We awarded separate appeals to the Association and

Interim; the judgment against East has become final.

     There are very few conflicts in the evidence.     If there are

disputed facts, we shall consider them in the light most

favorable to the plaintiff, according to settled rules of

appellate procedure.

     At the time of the accident, East was employed by Interim

and assigned to the Association to fill the position of "Part-

time Building Assistant" at the University's Alumni Hall.

According to a job description furnished to Interim by the

Association in March 1998, when the Association was seeking a

temporary worker, the duties of such an assistant included

helping the building supervisor about three hours a day with

mail processing and packaging "and delivery to the Post Office."

The job description stated that possession of "a valid Virginia


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driver's license" was required.   At all times relevant to this

case, East did not have a valid operator's permit.

     East had been convicted of driving under the influence of

intoxicants (DUI) in May 1990 and in October 1995.   Due to those

convictions, his license to operate a motor vehicle was

suspended.   Also, he failed to pay the fines assessed and failed

to attend ordered alcohol counseling.    In January 1996, the

Department of Motor Vehicles (DMV) declared him to be an

habitual offender.

     In December 1996, East began working for and through

Interim after he completed an Interim application form.    On the

form, East misrepresented that he possessed a valid "Class A"

driver's license.    At the time, East was interviewed and was

given "a series of basic skill tests."   Then Interim "check[ed]

his references," and employed him, assigning him to various

employers.

     After some time, East left Interim's employ.    He returned

to work for the agency in September 1998, when he completed

another application form that sought current information.

Responding to the question on the nine-page form:    "Have you

ever been convicted of a felony, misdemeanor or any offense

other than a minor traffic violation?", East wrote, "child

support!"    Also, he listed among his work skills "Chauffer"

(sic) and "Driver Class A."


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       During the relevant time period, Interim did not "check

criminal background," or request applicants physically to

produce a valid operator's license.   Also, it "did not request a

copy of East's DMV record."

       In March 1998, an official of the Association had contacted

Interim's Sales Manager to discuss filling the part-time

building assistant position, presenting the job description to

him.   Later, in September 1998, the Association official asked

Interim to send an individual who met the job qualifications.

Interim's Sales Manager responded that East was qualified,

stating that East "had a good driving record."   Interim had

found East to be a good employee; he had not been involved "in

any type of accidents," had never "shown up drunk on the job,"

and had generated no complaints "from any employer about his

activities while working."

       On September 22, 1998, Interim sent East to be interviewed

by the Association official.   Under the arrangement with

Interim, the Association had the right to accept or reject East.

During the interview, the official discussed with East the hours

to be worked and his duties, handing him a copy of the job

description.   East said that he could perform the duties.   The

official did not ask East to produce a driver's license, relying

on Interim to verify that he was a licensed driver.   No one at

the Association asked East if he possessed a valid driver's


                                  4
license.    East admitted he concealed from Interim and the

Association that he did not have an operator's license because

he wanted a job.

     The Association accepted East as a worker.     During the two

months before the accident, the Association found East to be "an

excellent employee."   His work included use of a copying

machine, a mailing machine, and recycling equipment.    His

driving duties involved only travel to and from a post office

"less than a mile" from the Association building.

     On November 25, 1998, the Wednesday of Thanksgiving week,

East was told to keep a key to the Association building because

his supervisor was on vacation.   He was instructed to lock the

building before the holiday and to reopen it the following

Saturday.   The Association was closed for business on November

25 and November 26, the day of the accident.

     Because he had access to the building, East was able to

procure a key to the truck he routinely operated.    On Wednesday,

East, age 40, "took the truck" without permission, traveled to

Richmond, and returned to his Charlottesville home on Friday,

when he began drinking beer and "riding around" in the truck.

During the day, he consumed about eight quarts of beer, and

eventually drove the truck into the rear of a stopped vehicle

that struck the rear of the plaintiff's stopped vehicle.

Subsequently, East pled guilty to petit larceny of the truck.


                                  5
     At trial, the court submitted the case against Interim and

the Association to the jury with instructions on negligence,

proximate cause, negligent hiring, foreseeability, and damages.

On appeal, the plaintiff, referring to the established elements

of the independent tort of negligent hiring, contends she

presented ample evidence to support "each element" against both

Interim and the Association.

     As we recently have stated, the cause of action for

negligent hiring "is based on the principle that one who

conducts an activity through employees is subject to liability

for harm resulting from the employer's conduct if the employer

is negligent in the hiring of an improper person in work

involving an unreasonable risk of harm to others."    Southeast

Apartments Mgmt. v. Jackman, 257 Va. 256, 260, 513 S.E.2d 395,

397 (1999).

     Liability for negligent hiring is based upon an employer's

failure to exercise reasonable care in placing an individual

with known propensities, or propensities that should have been

discovered by reasonable investigation, in an employment

position in which, due to the circumstances of the employment,

it should have been foreseeable that the hired individual posed

a threat of injury to others.   Id.   Mere proof of the failure to

investigate a potential employee's background is not sufficient

to establish an employer's liability for negligent hiring.


                                 6
Majorana v. Crown Cent. Petroleum, 260 Va. 521, 531, 539 S.E.2d

426, 431 (2000).

     The tort of negligent hiring is distinct from tort

liability predicated upon the doctrine of respondeat superior;

the two theories differ in focus.     J... v. Victory Tabernacle

Baptist Church, 236 Va. 206, 211, 372 S.E.2d 391, 394 (1988).

Under the latter, an employer is vicariously liable for an

employee's acts committed within the scope of employment.    In

contrast, the tort of negligent hiring is a doctrine of primary

liability; the employer is principally liable for placing an

unfit individual in an employment situation that involves an

unreasonable risk of harm to others.    Negligent hiring enables a

plaintiff to recover in circumstances when respondeat superior's

"scope of employment" limitation protects employers from

liability.   Id.

     The plaintiff contends that East had a known propensity for

driving while intoxicated, or that this propensity should have

been discovered by Interim and the Association had they

performed reasonable investigation.    She argues "there were

facts that should have put Interim on notice that sending East

to [the Association] might reasonably be a threat to the

public."

     The plaintiff also contends that the Association's claim of

reliance on Interim "ignores the evidence of [the Association's]


                                7
active negligence in giving East the job."   She says the

Association "failed to conduct the most basic of investigations,

requiring . . . proof East met the job requirement."

     Additionally, the plaintiff argues that Interim and the

Association "placed East in an employment position in which,

because of the circumstances of the employment, it should have

been reasonably foreseeable that East posed a threat of injury

to others."   According to the plaintiff, it was foreseeable from

Interim's standpoint that the Association would hire East, that

he would drive for the Association, that he would have access to

a vehicle, that he would take the vehicle, that he would drink

and drive, and that he would injure someone while driving drunk.

     The plaintiff also argues that from the Association's

standpoint "East was expected to drive a pickup truck as part of

his job.   He posed a risk to the motoring public every time he

left Alumni Hall to go to the post office.   He posed a special

risk to the public when he was left in control of Alumni Hall

over the Thanksgiving weekend; and, [the Association] knew it."

     We do not agree with the plaintiff's contentions.      The

evidence is clear that neither Interim nor the Association had

actual knowledge of East's propensities for operating a motor

vehicle without a valid operator's license, for failing to obey

court orders to pay fines and to attend counseling, and for




                                 8
driving while intoxicated.   He intentionally concealed those

facts from them.

     The question then becomes whether those defendants should

have discovered these propensities by reasonable investigation,

given the fact that the position to be filled only required a

three-hour daily commitment in which clerical and light labor

duties were to be performed, incidentally requiring driving only

a short distance to and from a post office.    For the purpose of

this discussion, however, we will assume, but not decide, that

both Interim and the Association should have discovered East's

propensities in the exercise of reasonable care.

     Nevertheless, we hold that the plaintiff failed, as a

matter of law, to establish that, because of the circumstances

of the employment, it should have been foreseeable that East

posed a threat of injury to others.

     Generally, in order to warrant a finding that negligence is

the proximate cause of an injury, it must appear that the injury

was the natural and probable consequence of the negligent or

wrongful act, and that the injury should have been foreseen in

the light of the attending circumstances.     Scott v. Simms, 188

Va. 808, 817, 51 S.E.2d 250, 253 (1949).

     Negligence carries with it liability for consequences that,

in view of the circumstances, could reasonably have been

anticipated by a prudent person, but not for casualties which,


                                 9
though possible, were wholly improbable.   A party is not charged

with foreseeing that which could not be expected to happen.

Norfolk Shipbuilding & Drydock Co. v. Scovel, 240 Va. 472, 475,

397 S.E.2d 884, 885 (1990), cert. denied, 499 U.S. 948 (1991).

However, the precise injury need not be foreseen by a defendant.

It is sufficient that an ordinary, prudent person ought, under

the circumstances, to have foreseen that an injury might

probably (not possibly) result from the negligent act.     Blondel

v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345 (1991).

     In the present case, the mere fact that East had been

convicted twice of DUI, had failed to pay fines or attend

counseling, and had been declared an habitual offender, would

not place a reasonable employer on notice or make it foreseeable

that East would steal a truck, operate the stolen vehicle during

non-business hours for his own frolic, and cause an accident on

the open highway distant from the environs of his job.

     According to the uncontradicted evidence, East's employment

history showed he had been a model employee, never had consumed

alcohol at work or reported for work intoxicated, never had been

in any motor vehicle accidents, never had taken any item from

any employer without permission, and had no record of theft.    In

sum, it was not Interim's placement of East, or his subsequent

acceptance for work at the Association, which was a proximate

cause of the plaintiff's injuries.


                               10
     Consequently, we conclude that the trial court erred in

ruling that foreseeability was a jury issue, and in refusing to

sustain Interim's and the Association's respective motions to

set the verdict aside.   Thus, that portion of the January 16,

2001 order entering judgment in favor of the plaintiff against

Interim and the Association will be vacated, and final judgment

will be entered here in favor of those defendants.

                                      Reversed and final judgment.




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