# FILED Ap ril 4, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT KNOXV

ILLE

_______________________________________________________ ) JOHN PHIP

PS and ) Blount County Circuit Court SANDR A PHIPPS , ) No. L-9566 ) Plaintiff

s/Appella nts. )

) VS. ) C. A. No. 03A01-9508-CV-00294 ) ROBERT WAYNE WALKER, ) ) Defendant/Appellee ) ) AND ) ) RANDALL W

AYNE WALK

ER , )

) Defend ant. )

______________________________________________________________________________ From the Circuit Court of Blount County at Mar yville. Honorable W. Dale Young, Judge
Kevin W. Shepherd , Maryville, Tenne ssee Attorney for Plain tiffs/App ellants.
Beecher A. Bartlett, Jr. , Adrienne L. Anderson , KRAMER, RAYSON, LEAKE, RODGERS & MORGAN, Knoxville, Tennessee Attorney for D efendant/Appellee Robert Way ne Walker.

OPINI ON FIL

ED: AFFI RMED AND

DISMISSED FARMER, J.
CRAWFORD, P.J.,W.S. : (Concur s) HIGHERS, J. : (Concur s)1 Suit was al so filed a gainst Ra ndall Walke

r, whom a

default judgmen t was subse

quently taken. T here wa s no appe al from th at judgm ent.
2 Appellan ts do not pur sue this the ory of reco very

on appea l. 2 Thi s action for negligent hiring r esults from the alleged burglary of the home o f Appellan ts, John and Sandra Ph

ipps, by Randall Way

ne Walker, son and employee of the appellee, Robert Wayne Walker. 1 Appellee is the owner of Walker Electric which, in 1994, sub-contracted withShore Bu

ilders, I nc. to per

form the e

lectric al work o n the Appe ll ants’ home, then under construction. Randall Walker was an employ ee of Walker Electric at this time.

The com plain t spec ifica lly allege s the f ollo wing: Robert Way

ne Walker , due to his relation ship to Randall Walker as bothfather and employ er, had direct and personal knowledg e of an extensive history of

substance abuse and criminal activity by R andall Walker. Despite this personal knowledge, Robert Walker employed his son which allowed Randall Walker to have acces s to the homes which Mr. Robert Walker worked upon.

Shortly after the completionof the Phipps’ residence, the Phipps moved into this home. During a brief absence from thei r home, on or about Octo ber 15 or 16, 1994, their home was burglarized . . . .

Throu gh investigation by the Blount County Sheriff’s Departm ent, R an dall Walker was arrested, and charg ed with the offense of aggravated burg

lary on this home. Mr. Randall Walker has subsequently entere d a guilty plea to this offense. Plaintiffs would ass ert that Rob ert Walker had a special duty

to them b a sed upon h

is employ

ment rela tionship to employ only individuals who would not pose any damage of threat or harm to the cus tomers. Mr . Robert Wa lk erbreached this duty

by employing

his son and allowing his son to have accessto the Phipps residence. As a resu

lt of th is breach of duty, the Phipps home was burglarized

resulting in both damage to property and loss of prope

rty to the Phipp s.

. . . .

The Plaintiffs wou l d further assert that Defendant Robert Walker is v

icariou sly responsi ble and li able

for the conduct of his son and employee R anda ll Wa lker, even though the conduct of Randall Walker was d one o utsid

e the scop e of D efendant [’]s employ ment. 23 The trial court’s judgment states that its decision was based upon a re view of the “pleadings and affidavits filed with this Court . . . .” Thus, we treat the motion g ranted as one for summary judgmen t for pur poses of r eview. Rule 12.02 T .R.C.P.

3 After denying any liability, Appellee filed a “ Motion to Dismiss and/or Motion for Summary Judgment, ” asser

ting tha t the appe llants cou ld not esta blish all necessary elementsof their
causes of action in light o f their admission that Randall Walker’s actions were outside the scope of his employment. Opposing a ffidavits were filed. The trial court granted the motion, dismissing the complain t with pre judice. T he Phipps n ow appea

l, stating the issue as follow s:

Whether the granting of summary judgment to the defendant was proper under the

facts and circumstances of the case?

A motion for summary judgment 3 is to be granted only when it is shown that there is no genuine issue as to any materi al f

act and t hat the mo ving pa

rty is entitle d to a judgment as a matter of law. Rule 56.03 T.R.C.P ; Caled onia Leasin

g and Equip. Co . v. Armstrong, Allen, Braden, Goodman, McBr ide and Prewitt , 865 S.W.2d 10, 13 (Tenn. App. 1992). In ruling there on,
we are toconsider the matter in the same manner a s a motion f

or a dire cted ver

dict made at the clo se of the plain tiff’s pr oof, i.e. , all evidence must be viewed in a light most favorable to the motion’s opponent and all legitimate conclusions must be drawn in thei r favo r. White v. Methodist Hosp. South , 844 S.W.2d 642, 6 45 (Tenn. App. 1992). When a summary judgment motion is used de fe ns iv el y, the plaintiff

must prese

nt evidence suff

icient to e stablish th

e essent ial eleme nts of his claim on which he will bear the burden of proof at trial. White , 844 S.W.2d at 645. Thus, in order for the appe llants’ c laim of ne glige

nce to procee d to a jury , they must offer some material evidence showin g the existence of a duty a nd injury proximately

caused by its bre ach. See Doe v. Linder Constr. Co., 845 S.W.2d 173, 183 (Tenn. 1992).

The tort of negligent hiring stems from the pr inciple that a person conducting an activity through employe

es is liable for harm resulting from the negligent conduct in the employ ment of improper persons or instrumentalities in the work involving risk of harm to others. Gates v. McQu iddy Office Products , No. 02A01-9410-CV-00240 (Tenn. App. Nov. 2, 1995), perm. app. pending
. The “ris k,” as he rein referred, is that which is foreseea ble. Doe , 845 S.W.2d at 178. As4

stated by the cour

t in Doe :

Forese eability

is the test of negligence. If the injury which occurred could not have been reasonably foreseen, t

he du ty of care does not arise, and even though the act of the defendant in fact caused the in ju ry, there is n o neglig ence and no li ability. See Spive y v. St. Thomas Hospital , 31 Tenn. App. 12, 211 S.W.2d 450, 456 (1948). “[T]he p laintiff

must show th at the inju ry was a re asonably forese eable

probability, not just a re mote possibility , and that some action within the

[defenda nt’s] powe

r more pr obably than not w ould have preve nted t he injury.” Tedder , 728 S.W.2d at 348. Forese eability

must be det ermined as of the time of the acts or omissions c laimed to b e negli gent.

Id
.

The affida vit of the a ppellee was filed in support of the motion for summary judgmen t, which st

ates, in p ertinen

t part:

I amthe owner and sole proprietor of Walker Electric. I am also the father of

. . . Randall Wayne Walker. . . .

. . . . Walker Electric, through the summer and fall of 1994, employed t wo ele ctricians and two assistants. The two electricians were Curti s Shul er and Rand all Wa yne Wa lk er. Both electricians were allowed t

o perfor m work outs ide of th eir em ploy ment with Walker Electric on an inde

pendent c ontract

ing basi s. When the se electri c ians wo rk ed as in de pe nd en t c on tr ac to rs fo r a th ir d p ar ty, Walker Ele ctric had no control or responsibility for their a ctions or work. Randall

Wayne Walker has wo

rk ed as an electrician for Walker El ectric f

or appro ximately

11 y ears. A

t the time th at I hired Randall Walker, I had no know ledge o

r notice that Randa

ll Walker was u sing o r abusing illicit or i llegal

substanc es. Ad di ti on al ly, I had

no knowledge or notice at the time that I hired Randall Walker or

during t he perio d of time th at Walker Electric workedon the [Appellants’] house that Randall Walker had ever broken in to and stol en prope

rty from othe

r people ’s homes.

. . . . Curtis Shuler was the sole electrician assigned by Walker Ele ctr ic to insta

ll the ele ctrical

wiring a

nd fixturesin Plaintiff s’ house. Ra

ndall Walke

r was not u sed by

Walker El ectric to ins tall any of t

he electrical wiring or fixtures in this house. . . . Randall Walker’sonly

accessto Plaintif

f’s [sic] ho me occurred when Randall Walker was working for

Shore Bu ilders asa sub-contractor.5 . . . . Walker electric has not performed any additional electric work on Plaintiffs’ house since August 1994.

At some point

in late sum

mer or e arly

fall in 1994, but prior to Plaintiffs’ fully moving into their house, Randall Walker wa s requested by Pl aintiff Joh

n Phipps to a

ccompan y hi m and r epair a light in the Plain tiffs’ kitchen. A t the time o f Plaintif

f’s req uest, Randall Walker was not working as an employ ee of Walker

Electric butwas working in another house located in Allen Brook Subdivision as a sub-contractor for Shore Builder s, Inc. . . .

During the weekend of Saturday , October 15, 1 994, and Sunday, Octobe

r 16, 1994, Randall Walker was not performing any work f

or Walker Electric. . . . At the time of the alleged break-in, I was not aware of any substanc e use

or abuse by Randa

ll Walker. Although I am awa re of Randall’s difficulty with substance a buse, I believe that at

the time of the incident, Randall Walker had been successfully rehabilitated. Randall Walker is 30 years old, independent from my support, and resides outside of my home
.
In oppos itio n, Mr. Phip ps fil ed his affid avit, stati ng:

I am the homeown e r, along with my wife, who has filed the Complaint in this action.

. . . . Just after we moved into our house, I walked up to Robert Walker (who was working just up the street from our home) and advised him of a problem with our kitchen light. He sent his son, Randall Wa

lker, to g o to my

home, to a

ddress the proble

m. Randall Walker c ome to our

home I led him into

the kitchen where I showed

him the problemwith an overhead light. He identified a “ground problem” with the on/off switch. He r epaired the problem in our presence. . . .

A tan earl

ier time, I obs erved Ra ndall W alke r installing light switches in our sunro om and al so working on an outside security

light. After the burg lary , I dis covere d that this l ight, as well as all other

security lights, had been maladjusted so that they would not c over the

perimete r of the h ouse ag ainst intr uders. We moved into this residence on September 23, 1995. It was on October 12, 1995, that Randall Walker came to our house to correct the wiring problem. The burg lary occ urred on or about October 15, 1995.

Randall Walker has since pled

guilty to this bu rg la ry.

. . .

. . . . it is our belief that Robert Walker employ ed his son knowing

of his son’ s crimina

l tendenc ies, and failed to warn us of his son’s behavior.4 Mr. Phipps filed a supplemental affidavit and attached thereto certain portions of a “presentence report” of Randall Walker. Neither the affidavit nor the report comply with Rule 56.05 T.R.C.P. and, thus, will not be considered by this Court. However, e ven if these materials were proper f or our co nsidera

tion, they fail to es tablish kn owledg e on beha lf of the A

ppellee of his son’s propensity to commit the felonious act of bur glarizing houses. The pre-sentence report only establishes that Randall Walker’s “c riminal tendencies” included misdemeanor charg es of theft, various traffic violations, possession of illegal drugs a nd forgery
. 6 Appellan ts maint ain th at ma

teri al fa ctua l disp utes e

xi st re gardin g wheth

er Randa ll Walker was afforded access to and a llowed to work on

the appe llants’ r esidenc e, via

his employ by Appellee, and whether Appellee was aware of his son’ s substanc e abuse a nd prior c riminal a ctivity at this time. It is argued that due to the “special relationship” existing between Randall Walker and Appellee in this case (i.e. father and son), that a reasonable inference ma y be drawn by a jury

that Appellee was aware of his son’s “criminal tendencies” a nd, thus, coul d reason ably forese e that his
em ployment

of Randall in this particular capacity , created a foreseea ble risk of harm to the appella nts.

This Courtin Gates held that a claim for negligent hiring “requires something more than a sho wing of

past criminal conduct.” Gates , slip op. at 4. Gates identifie d three e lements necessary for recovery

under a negligent hiring

theory: “(1) evidence of

unfitness for the particular job, (2 ) evidence that th

e applic ant for e

mploy ment, if hi

red, would pose an

unreaso nable ri sk

t o others, [and] (3) e

vidence that the p

rosp e ctive [employer] knew or should have known that the historical criminality of the applica ntwould likely be repe

titive.” Id
. Gates concluded that negligent hiring arises only

when a particular unfitness of a job applicant creates a danger of harm

to others which the employer

should have known. Id . at 5.

Alth ough Appellee’s affida vit admits to kno wledge of his son’s prior substance abus e , there is nothing

in the record to dispute his statement that he was unaware of any

illegal drug use by his son at th e ti me of his employ. Moreove r, there is nothing in Mr. Phipps’ affidavit, other than
mere conclusi on, to ref

ute Appellee’s st

atement t hat he wa s unawar

e that his s on had ever burglarized

houses at the time that Walker Electric worked on Appellants’ home. Nor is there any evidence in the record that sugg ests Randall Walker’s prior commission of this crime. 47 Viewing the evidence in a light most favorable to Appellants, we fi nd that no d

uty
was owed them by the a

ppellee under the facts presented. More over, we find that Appellants have failed to establish the eleme

nt of proxima

te cause. O

rdinaril y, t he proxima

te cause of

an injury is for the jury, but where

there are uncontroverted

facts, the question of proximate or intervening cause is for the trial court. See e.g., Doe v. Linder Constr. , 845 S.W.2d at 183. Appellants concede that the allege d crimina

l acts of R andall

were committed outside the scope of his employ ment. Corder
v. Metropolit

an Governme nt , 852 S.W.2d 910 (Tenn. App. 1992), holds tha t an employer is not liable for the wrongful acts of an employ ee commit

ted outsid e the sco pe of his employment, even if the hiring of the employ ee was negligent. Corder , 852 S.W.2d at 915. Corderreasons that the hiring of the em

ploy ee is not th

e proximate

cause of his a cts committed outside the scope o f his employ ment. Id . It is, therefore, immaterial whether Randall was afforded accessto or allow ed to work on Appellants’ home by Appellee.

The judgment of the trial court is hereby affi rm ed and thi s cause d ismissed. C osts
ar e a ss es se d a ga in st Jo hn an d S an dr a P hi pp s, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

__________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)