Present: All the Justices 

SOUTHEAST APARTMENTS MANAGEMENT, 

INC., ET AL. 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 981000 February 26, 1999 

KIMBERLY M. JACKMAN 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 In this tort action, we consider whether the trial court 

erred in ruling that a jury question was presented on a tenant's 

claims that an owner of leased premises breached either its duty 

to exercise reasonable care in the hiring of its employee, the 

tortfeasor, or its duty to exercise reasonable care in the 

retention of the employee. 

 On July 27, 1996, appellee Kimberly M. Jackman was a tenant 

in the Kings Arms Apartments in Virginia Beach, owned by 

appellant Southeast Mortgage and Investment Corporation and 

managed by appellant Southeast Apartments Management, Inc. 

(collectively, the owner). At the time, the owner employed one 

Douglas Turner as the Apartments' "maintenance supervisor;" he 

had been so employed for approximately two months. 

 Near 5:00 a.m. on July 27, the tenant was asleep in her 

upstairs bedroom holding her infant son. The only other 

occupant of the apartment was an older son, two years of age. 

She awoke and saw a man standing in the hallway. Identifying 
himself as "the maintenance man," Turner "came over," sat next 

to the tenant on her bed, said "he had had quite a bit to 

drink," and started rubbing her thigh. He arose in response to 

her pleas for him to leave, "walked down the stairs," and left 

the premises. "Scared," the tenant fled with her children to 

her parents' home and called the police. 

 Subsequently, the tenant filed the present action for 

damages, charging the owner with "negligent hiring and 

retention" of Turner. During the trial, the court instructed 

the jury on those issues and on proximate cause. The jury found 

in favor of the tenant, fixing her damages at $12,500. The 

trial court entered judgment on the verdict in a February 1998 

order, from which we awarded the owner this appeal. 

 The owner contends the trial court erred, first, in failing 

to rule, as a matter of law, that the tenant's evidence was 

insufficient to create a prima facie case of either negligent 

hiring or negligent retention, and, second, in failing to rule 

that any such negligence was not a proximate cause of the 

tortious act. Because of the view we take of the case, we do 

not reach the question of proximate cause. 

 Applying settled principles of appellate review, we shall 

summarize the evidence in the light most favorable to the 

tenant, who comes to this Court armed with a jury's verdict 

confirmed by the trial judge. 

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 First, we shall relate the facts on the hiring aspect of 

this case. Turner was among several applicants for the 

advertised job of "maintenance supervisor" for the 199-unit 

apartment complex. The duties of the position included assuring 

the proper functioning of the apartment utilities, "keep[ing] up 

the grounds," and being "on call 24 hours a day." 

 Turner, 31 years of age, had submitted a detailed 

application, including a "very professionally printed" personal 

resume. He was interviewed by Melanie L. Ayscue, the apartment 

"resident manager," and by the owner's "regional manager." 

 As part of the application process, Turner executed a 

release authorizing inquiry into his work, credit, and 

educational history, as may be disclosed through his personal 

references and public records. Ayscue attempted to talk with 

six persons Turner had listed as personal references and was 

able to speak with only two of them. They gave Turner good 

recommendations. 

 Ayscue performed a "background check" on Turner, but did 

not request a copy of his "criminal record." She testified that 

the "law" did not require her "to do a criminal background 

check." In the "Behavioral History" portion of the application, 

Turner indicated that of the 34 crimes listed, he had committed 

only "Traffic Violations." Ayscue administered a behavioral 

test to him, graded by a third party, and he scored "fine." 

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 Upon completion of the application process, Ayscue employed 

Turner with the regional manager's approval. After he was 

hired, Turner lived in one of the apartments and was furnished a 

"master key" that could open a "percentage of the apartments." 

 Next, we shall relate the facts on the retention aspect of 

the case. Ayscue told the detective who investigated the 

assault on the tenant that Ayscue, based on the "appearance" 

Turner had when "he came to work mornings, . . . suspected that 

he either had an alcohol or drug abuse problem," and that Ayscue 

"had heard him talking to the assistant property manager about 

the females in the apartment complex that he thought were 

attractive that he was interested in dating." Ayscue testified 

Turner came to the apartment office one Saturday before the 

incident and stated to her "he had one beer at a party." Ayscue 

said she would not allow Turner to leave the office that 

afternoon to answer any maintenance "calls." 

 The tenant testified that, after the incident, Ayscue and 

the apartment assistant manager remarked "about how [Turner] had 

mentioned getting phone numbers of single women that had lived 

in the apartment." Ayscue testified that Turner asked her for 

the telephone number of a resident named "Virginia," which 

Ayscue assumed was in connection with a request for maintenance. 

The assistant manager testified that Turner asked for the 

telephone number of a "Ginger," a single woman who resided in 

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the apartment, and that "an older lady who had a Cocker Spaniel" 

had "invited him out." 

 The tenant also stated that Ayscue "had mentioned to me how 

during their lunch breaks they used to hide from him because he 

was so obnoxious, he tried to follow them everywhere they went. 

So they would sneak out for lunch so he wouldn't go with them." 

 This Court has recognized the independent tort of negligent 

hiring. J. . . v. Victory Tabernacle Baptist Church, 236 Va. 

206, 208-09, 372 S.E.2d 391, 393 (1988); Davis v. Merrill, 133 

Va. 69, 78-81, 112 S.E. 628, 631-32 (1922). The cause of action 

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. Ponticas v. K.M.S. Invs., 331 N.W.2d 

907, 911 (Minn. 1983). Accord, Victory Tabernacle Baptist 

Church, 236 Va. at 211, 372 S.E.2d at 394. See John H. Derrick, 

Annotation, Landlord's Tort Liability to Tenant for Personal 

Injury or Property Damage Resulting from Criminal Conduct of 

Employee, 38 A.L.R.4th 240 (1985). "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 investigation, in an employment position in which, 

because of the circumstances of the employment, it should have 

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been foreseeable that the hired individual posed a threat of 

injury to others." Ponticas, 331 N.W.2d at 911. 

 This Court also has recognized the independent tort of 

negligent retention. Philip Morris Inc. v. Emerson, 235 Va. 

380, 401, 368 S.E.2d 268, 279 (1988); Norfolk Protestant Hosp.

v. Plunkett, 162 Va. 151, 156, 173 S.E. 363, 365 (1934). As 

applicable to the facts of the present case, this cause of 

action is 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 dangerous employee who the 

employer knew or should have known was dangerous and likely to 

harm tenants. Mallory v. O'Neil, 69 So.2d 313, 315 (Fla. 1954). 

See Svacek v. Shelley, 359 P.2d 127, 131 (Alaska 1961). 

 Applying the foregoing principles to the facts of this 

case, we hold the tenant's evidence is wholly insufficient to 

make out a prima facie case of either negligent hiring or 

negligent retention. 

 During the hiring process, the owner received a detailed 

application containing information about Turner's personal 

background, work experience, and behavioral history. None of 

this information gave a hint that Turner may have had a 

propensity to molest women. Ayscue discussed Turner's 

qualifications with two persons who formerly supervised his 

work; they recommended him for employment and furnished no 

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information that Turner may have posed a threat of committing 

assaults upon female tenants. 

 In connection with her "background check," Ayscue did not 

investigate Turner's prior criminal record, if any; under these 

facts, she was not obligated to do so in the exercise of 

reasonable care. In the application, Turner represented that he 

had "absolutely never engaged" in 34 types of criminal behavior, 

except traffic violations. Additionally, in the application he 

also denied conviction "in the past seven years" of 28 listed 

felonies. 

 The tenant dwells on a part of the opening statement of the 

owner's attorney. He said that a "criminal records check" would 

have disclosed Turner "wrote a bad check for $l.29" and another 

"for $9" in Georgia when he was 20 years of age. Even if this 

can be considered part of the evidence in the case, which it 

cannot, it is the only indication in the entire record that 

Turner had been convicted of non-traffic offenses. Even if the 

owner had learned of these petty offenses, it would not have 

been alerted to the fact that Turner would engage in criminal 

sexual activity. 

 In sum, there are no facts that would have put the owner on 

notice that its hiring of Turner might reasonably lead to a predawn assault on the tenant. 

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 While retaining Turner during his two-month tenure before 

the incident in question, the owner did not know, nor should it 

have known, in the exercise of reasonable care, that Turner was 

dangerous and likely to harm tenants. The fact there was a 

"suspicion" Turner may have had an alcohol or drug "problem," 

and may have had an attraction for single women, did not render 

this 31-year-old single man a dangerous employee and one likely 

to commit sexual assaults. Nor does the fact that an employee 

is "obnoxious," in the opinion of other employees, furnish 

notice to an owner exercising reasonable care that the employee 

is likely to sexually assault tenants. 

 Consequently, we are of opinion that the trial court erred 

in refusing to rule, as a matter of law, that the tenant failed 

to establish a prima facie case of negligent hiring or 

retention. Therefore, we will reverse the judgment below, set 

aside the verdict in favor of the tenant, and enter final 

judgment here in favor of the owner. 

Reversed and final judgment. 

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