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 "Parttime 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. 

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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] 

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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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