PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KRISTIN D. BLAIR, 

Plaintiff-Appellant,

v.  No. 03-1280

DEFENDER SERVICES, INCORPORATED,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, Senior District Judge.

(CA-02-601-7)

Argued: December 3, 2003

Decided: October 25, 2004

Before WIDENER and KING, Circuit Judges, and

Richard D. BENNETT, United States District Judge

for the District of Maryland, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. District Judge Bennett wrote the opinion, in which Judge King

concurred. Judge Widener wrote an opinion concurring in part and

dissenting in part. 

COUNSEL

ARGUED: Monica Taylor Monday, GENTRY, LOCKE, RAKES &

MOORE, Roanoke, Virginia, for Appellant. John Dickens Eure,

JOHNSON, AYERS & MATTHEWS, Roanoke, Virginia, for Appel-
lee. ON BRIEF: S.D. Roberts Moore, Andrew E. Carpenter, GENTRY, LOCKE, RAKES & MOORE, Roanoke, Virginia, for

Appellant. Brian J. Brydges, JOHNSON, AYERS & MATTHEWS,

Roanoke, Virginia, for Appellee. 

OPINION

BENNETT, District Judge: 

Plaintiff Kristin D. Blair, a Virginia resident, brought this action

against Defender Services, Inc. ("Defender"), a South Carolina Corporation, for injuries sustained as a result of a violent attack upon her

by James Lee Harris, an employee of Defender. Alleging claims

against Defender for negligent hiring, retention and supervision and

for respondeat superior liability, Blair filed a complaint in the Circuit

Court for the City of Roanoke, Virginia. The case was duly removed

to the United States District Court for the Western District of Virginia

on the basis of diversity of citizenship, pursuant to 28 U.S.C. §§ 1332,

1441 and 1446. Subsequently, the District Court granted Defender’s

motion for dismissal as to the negligent supervision count, pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 Upon the

conclusion of discovery, Defender moved for summary judgment as

to the remaining three claims. The District Court entered summary

judgment for Defender on all three counts, and Blair now appeals. We

affirm the decision of the District Court as to respondeat superior liability, but reverse that court’s entry of judgment for Defender on the

claims of negligent hiring and negligent retention, and remand this

case for further proceedings consistent with this opinion.

I.

This Court reviews a grant of summary judgment de novo and

applies the same standard as the District Court. Temkin v. Frederick

County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502

U.S. 1095 (1992); Baber v. Hospital Corp. of America, 977 F.2d 872,

1The Plaintiff/Appellant has not appealed the District Court’s dismissal

of the negligent supervision claim. 

2 BLAIR v. DEFENDER SERVICES
874 (4th Cir. 1992). Federal Rule of Civil Procedure 56 provides that

summary judgment "shall be rendered forthwith if the pleadings,

depositions, interrogatories and affidavits . . . show that there is no

genuine issue as to any material fact, and the moving party is entitled

to judgment as a matter of law." We have previously noted that, when

"the moving party has met its responsibility of identifying the basis

of its motion, the non-moving party must come forward with ‘specific

facts showing that there is a genuine issue for trial.’" White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir. 1987) (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In its review, this

Court must view such facts and all reasonable inferences in the light

most favorable to the non-moving party. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "If the evidence is

such that a reasonable jury could return a verdict for the non-moving

party" then a dispute over a material fact is genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

In conducting this analysis, this Court recognizes that the instant

action was filed in Virginia state court and removed to federal court

based upon diversity of citizenship. Accordingly, the choice of law of

Virginia applies. See Klaxon Co. v. Stentor Electric Mfg. Co., 313

U.S. 487, 496 (1941). In evaluating the facts in the light most favorable to the non-moving party, we will apply Virginia substantive law

consistent with Virginia’s lex loci delicti, the law of the place of the

wrong. See, e.g., Jones v. R. S. Jones & Assocs., 246 Va. 3, 431

S.E.2d 33, 34, 9 Va. Law Rep. 1410 (Va. 1993); Buchanan v. Doe,

246 Va. 67, 431 S.E.2d 289, 291, 9 Va. Law Rep. 1446 (Va. 1993).

II.

On the morning of March 26, 2001, at approximately 11:30 a.m.,

Kristin D. Blair ("Blair"), a 19-year-old college freshman at Virginia

Polytechnic Institute and State University ("Virginia Tech"), entered

the digital art classroom in Henderson Hall on the Virginia Tech campus to work on a project prior to the commencement of a 2:00 p.m.

class session. When Blair arrived, other students were completing a

class in the room. By 12:30 p.m., all but a few of these students had

departed. Around that time, a man wearing blue jeans and a gray tshirt with a colorful logo entered the room and soon departed. A few

BLAIR v. DEFENDER SERVICES 3
minutes later, that same man returned and asked Blair, who was now

alone in the classroom, when the next class started. 

At approximately 12:45 p.m., Blair left the classroom and observed

the same man standing in the middle of the hallway, with a large gray

bucket beside him. After walking to the end of the hallway, Blair

entered a unisex bathroom. When she opened the restroom door to

leave, the same man was standing in the doorway. Suddenly, this individual grabbed Blair by her neck and pushed her back into the bathroom. While straddling Blair and using both hands to strangle her, the

attacker pushed her to the floor. Blair lost consciousness during the

attack. She awoke on the bathroom floor, with her face swollen to the

extent that she only could see out of one eye.2 Blair then left the bathroom and began screaming for help. A member of the Virginia Tech

administrative staff approached her and asked, "who did this?". Blair

pointed to the same man whom she had seen earlier, and who was

standing in the hallway. 

The man identified by Blair was James Lee Harris, an employee of

Defender, which, pursuant to a contract, provided janitorial staffing

services on Virginia Tech’s campus.3 Eleven months prior to his

attack on Blair, a protective order had been issued against Harris in

the Giles County Juvenile and Domestic Relations Court.4 This pro2There was no evidence of any sexual assault. Blair suffered broken

facial bones and subsequently underwent neck surgery. Since the incident, she has attempted suicide and has been diagnosed with Post Traumatic Stress Disorder. 

3The present record of this case indicates that Harris has denied that

he attacked Blair. Defender has not admitted that Harris was the attacker,

but has recognized that Blair’s evidence on this issue is strong. (Appellee

Br. at 2 n.1). In her brief to this Court, Blair has indicated that Harris was

criminally charged and entered a plea of "nolo contendere." (Appellant

Br. at 5). The Joint Appendix indicates that Harris was charged criminally. (J.A. at 329). As the District Court noted, it assumed for the purposes of summary judgment that such factual disputes are to be resolved

in Blair’s favor. (J.A. at 331). 

4Giles County is the neighboring county to Montgomery County, in

which Virginia Tech is located. The protective order was entered on

April 2, 2000, and listed Harris’ home address in the town of Narrows,

4 BLAIR v. DEFENDER SERVICES
tective order resulted from a criminal complaint having been filed by

a woman who had been physically assaulted by Harris at a restaurant.

Harris previously had worked for Defender during a brief period

from November 1998 until January 1999. At that time, Defender

required Harris to complete an application that included a question

concerning any criminal charges, to which Harris answered that he

had no prior criminal convictions. Pursuant to a contract with Virginia

Tech, Defender assigned Harris to perform custodial work at Virginia

Tech under Virginia Tech’s supervision. That contract required

Defender to perform criminal background checks on all Defender personnel assigned to the Virginia Tech campus. A criminal background

check of Harris was not completed by Defender during this twomonth period. 

In January of 1999, Harris quit his employment with Defender, and

became employed directly by Virginia Tech for approximately one

year. Harris returned to the employment of Defender for a brief two

weeks in October of 2000. Once again Harris completed another

application and indicated no criminal convictions. Defender did not

conduct a criminal background check with respect to Harris during

this second brief period of employment. 

On February 5, 2001, Defender once again hired Harris. Unlike

Harris’ prior employment with Defender, he was not required to complete any application on this third occasion. As with the previous

occasions, Defender did not conduct a criminal background check on

Harris prior to his employment. Defender’s representatives did, however, contact some of the personal references provided by Harris.

While Harris did not have a record of any criminal convictions, he

was subject to the aforementioned court protective order in neighboring Giles County. 

which is located in Giles County. Harris resided in Pembroke, also

located in Giles County, at the time of his initial application for employment in 1998 (JA 128). His application for employment in October 2000

(JA 222), listed an address in the town of Ripplemead, which is also

located in Giles County. 

BLAIR v. DEFENDER SERVICES 5
At all times, the contract between Defender and Virginia Tech specifically required Defender to perform criminal background checks on

all personnel assigned to Virginia Tech property. Expert testimony

offered in opposition to Defender’s motion for summary judgment

presented the view that Defender’s pre-employment screening of Harris was inadequate. Specifically, there was evidence that Defender

would have discovered that Harris was the subject of a protective

order and criminal complaint in the neighboring county if a background investigation had been conducted as required.

III.

A. The Respondeat Superior Claim

The Supreme Court of Virginia in the cases of Gina Chin &

Assocs. v. First Union Bank, 260 Va. 533, 537 S.E.2d 573 (Va. 2000),

and Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 539

S.E.2d 426 (Va. 2000), both decided on the same day and authored

by Justice Lawrence L. Koontz, Jr., addressed the elements of a claim

against an employer for the wrongful acts of an employee based on

the doctrine of respondeat superior. In Gina Chin, the court noted

that "(a)lmost from its first consideration by the courts of this Commonwealth . . . the determination of the issue [of] whether the

employee’s wrongful act was within the scope of his employment

under the facts of a particular case has proved ‘vexatious.’" 537

S.E.2d at 576-577 (citations omitted). In Majorana, the court

explained that: 

When the plaintiff presents evidence sufficient to show the

existence of an employer-employee relationship, she has

established a prima facie case triggering a presumption of

liability . . . the burden of production then shifts to the

employer, who may rebut that presumption by proving that

the employee had departed from the scope of the employment relationship at the time the injurious act was committed.

539 S.E.2d at 429 (citations omitted). 

6 BLAIR v. DEFENDER SERVICES
The District Court correctly viewed all facts in the light most

favorable to Blair in assuming that Harris was an employee of

Defender at the time of the attack on March 26, 2001. This Court concurs that Blair has met her burden in presenting sufficient evidence

that Harris was an employee of Defender. However, any presumption

of liability may be rebutted by proof that Harris had departed from the

scope of that employment. 

Even viewing the facts in the light most favorable to Blair on this

issue, we find that the District Court correctly concluded that Harris’

actions had nothing to do with his performance of janitorial services.

The District Judge thoroughly reviewed applicable Virginia law in

reaching this conclusion. 

It is well established that the simple fact that an employee is at a

particular location at a specific time as a result of his employment is

not sufficient to impose respondeat superior liability on the employer.

Cary v. Hotel Rueger, Inc., 195 Va. 980, 81 S.E.2d 421, 424 (Va.

1954). However, as the District Court noted, Virginia Courts have not

"automatically" placed intentional torts "outside the scope of employment for purposes of vicarious liability." See, e.g., Davis v. Merrill,

133 Va. 69, 112 S.E. 628, 630-32 (Va. 1922). The District Judge correctly noted that the test set forth in the Gina Chin case is whether

"the service itself, in which the tortious act was done, was within the

ordinary course of the employer’s business." Gina Chin, 537 S.E. 2nd

at 579. 

In Gina Chin, supra, the Supreme Court of Virginia noted its earlier opinion in Kensington Associates v. West, 234 Va. 430, 362

S.E.2d 900, 4 Va. Law Rep. 1269 (Va. 1987). In that case, the court

reversed a jury verdict in favor of a plaintiff-construction worker, and

entered final judgment in favor of the employer of an individual who

had engaged in "horseplay" in shooting the plaintiff. 362 S.E.2d at

903-04. The court noted that this horseplay was not done to further

the employer’s interest, and also noted its earlier opinion in

Abernathy v. Romaczyk, 202 Va. 328, 117 S.E.2d 88 (Va. 1960). Id.

In Abernathy, the court reversed a jury verdict and held "as a matter

of law" that a delivery man was not acting within the scope of his

employment when he participated in a scuffle over who had caused

a traffic accident. 117 S.E.2d at 92-93. 

BLAIR v. DEFENDER SERVICES 7
The present case falls within the ambit of these Virginia cases. Harris’ assault on Blair is clearly distinguishable from situations where

the employee’s wrongful conduct was related to the nature of the

employment. In the Gina Chin case, a bank teller embezzled money,

while in the Majorana case, a gas station employee sexually harassed

a customer during payment by the customer. When Harris embarked

on independent acts to attack Blair, he clearly acted outside the scope

of his employment. We hold that this act was so great a deviation

from Defender’s business that the District Court correctly granted

Defender’s motion for summary judgment on the respondeat superior

liability claim as a matter of law.

B. The Negligent Hiring and Negligent Retention Claims

The recognition of claims for negligent hiring and negligent retention can be traced in Virginia case law to the opinion of the Supreme

Court of Virginia in Big Stone Gap Iron Co. v. Ketron, 102 Va. 23,

45 S.E. 740, 102 Am. St. Rep. 839 (Va. 1903). See Courtney v. Ross

Stores, Inc., 1998 Va. Cir. LEXIS 143, 45 Va. Cir. 429, 430 (1998)

(tracing history of negligent hiring and retention under Virginia state

law). In Big Stone, the court recognized a duty of a company to exercise "reasonable care" in a hiring decision, and a distinction between

the hiring and the retention of an employee. 45 S.E. at 741. Subsequently, the Supreme Court of Virginia explicitly recognized the independent torts of negligent hiring in Davis v. Merrill, 133 Va. 69, 112

S.E. 628 (Va. 1922), and negligent retention in Norfolk Protestant

Hospital v. Plunkett, 162 Va. 151, 173 S.E. 363 (Va. 1934). 

In J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 372

S.E.2d 391, 393, 5 Va. Law Rep. 637 (Va. 1988), the Virginia

Supreme Court held that allegations of negligent hiring had set forth

a cause of action under Virginia law. In that case, the mother of a tenyear-old girl brought suit against a church and its pastor as a result

of the rape and sexual assault of the girl by an employee of the

church. Victory Tabernacle, 372 S.E.2d at 392. It was alleged that

when the church hired this employee it "knew, or should have known,

that [the employee] had recently been convicted of aggravated sexual

assault on a young girl, that he was on probation for the offense, and

that a condition of his probation was that he not be involved with children." Id.

8 BLAIR v. DEFENDER SERVICES
The defendants filed a demurrer, contending that the plaintiff had

failed to state a cause of action. Id. The Supreme Court of Virginia

specifically addressed "only whether the allegations of negligent hiring . . . state a cause of action in Virginia." Id. at 392-393. In reversing the trial court’s granting of a demurrer on this question, the court

held that the plaintiff had asserted a claim of negligent hiring, distinct

from a claim for respondeat superior liability. Id. The court discussed

at length its earlier opinion in Davis v. Merrill, supra, noting that

when the wrongdoing employee in that case "was interviewed . . . no

one made inquiry concerning his past record, habits, or general fitness," and further commented to the effect that "had [the employer]

investigated, it probably would not have offered the assailant the job."

Id. at 393. 

In the instant case, the District Court found that "no reasonable trier

of fact" could find that Defender knew or should have known of Harris’ criminal problems in the neighboring county some eleven months

earlier. We respectfully disagree. There is a genuine issue of material

fact with respect to whether Defender should have known of Harris’

violent conduct, as the undisputed facts are that Defender never conducted any type of criminal background check on Harris prior to

employing him. While Defender can certainly argue that such a background check would not have resulted in the discovery of the protective order issued in April 2000, and a jury could certainly so find,

there is expert testimony proffered by Blair that a background check

would have indicated the existence of a protective order resulting

from a criminal complaint. 

The trial court and Defender placed great reliance on the Virginia

Supreme Court’s opinion in Southeast Apts. Mgmt., Inc. v. Jackman,

257 Va. 256, 513 S.E.2d 395 (Va. 1999). In that case, a tenant was

molested by a maintenance person of the apartment building after his

entry into her apartment. The tenant claimed that the owner of the

apartment building breached its duty "to exercise reasonable care in

the hiring of its employee . . . or . . . in the retention of the employee."

513 S.E.2d at 395-396. The court noted its earlier opinions in Victory

Tabernacle, supra, and Davis v. Merrill, supra, in establishing the tort

of negligent hiring. In providing further edification of this tort, the

court cited the following summary provided by a Minnesota state

court: 

BLAIR v. DEFENDER SERVICES 9
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 been

foreseeable that the hired individual posed a threat of injury

to others.

Id. at 397 (citing Ponticas v. K.M.S. Inv., 331 N.W.2d 907, 911

(Minn. 1983)). 

In the Southeast Apts. decision, the Virginia Supreme Court further

noted its recognition of the tort of negligent retention in its earlier

opinion in Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d

268, 4 Va. Law Rep. 2568 (Va. 1988). The court in Southeast Apts.

stated that the tort of negligent retention was 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." 513 S.E.2d at 397. Similarly,

this Court recognized this principle of Virginia law in our opinion in

Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 269 (4th Cir.

2001). 

In applying the above principles to the facts before it, the court in

Southeast Apts. held that the evidence was "insufficient to make out

a prima facie case of negligent hiring or negligent retention." 513

S.E.2d at 397. The facts presented in Southeast Apts. were that the

owner had "received a detailed application containing information

about [the employee’s] personal background, work experience, and

behavioral history." Id. In responding to the application inquiry, the

employee denied any engagement in "34 types of criminal behavior,

except traffic violations." Id. Furthermore, he denied any criminal

convictions "in the past seven years." Id. In addition to the thorough

steps taken by the employer, the evidence in Southeast Apts. indicated

that the wrongdoing employee had two previous bad-check charges

totaling $10.29. Id. Importantly, there were no criminal convictions

or protective orders involving violent acts perpetrated on women. Id.

The facts in the instant case are clearly distinguishable from those

found in Southeast Apts., and are much closer to the facts addressed

10 BLAIR v. DEFENDER SERVICES
by the Supreme Court of Virginia in Victory Tabernacle, supra. In the

present case, Defender failed to conduct a background check of Harris

on three different occasions. It is undisputed that Defender was contractually obligated to Virginia Tech to conduct a background check

of employees such as Harris. Furthermore, the instant record includes

the statement of Virginia Tech’s Director of Housekeeping, who indicated that he would not have allowed Harris to perform janitorial services at Virginia Tech had he known of Harris’ propensity for

violence. 

With respect to Blair’s claim of negligent hiring, we find that there

is a genuine issue of material fact concerning whether Harris’ violent

propensities should have been discovered by Defender prior to Harris

being placed into an employment situation in which he posed a threat

to Virginia Tech students. Similarly, in addressing Blair’s claim of

negligent retention, we find that there is a genuine issue of material

fact regarding whether Defender, having originally employed Harris,

should have known or discovered Harris’ dangerous propensities as

a result of the protective order issued eleven months earlier. Quite

simply, based on the facts of the instant case, these are questions to

be resolved by the jury as the finder of fact. 

For the foregoing reasons, we affirm the District Court’s granting

of summary judgment on the respondeat superior claim, but vacate

the District Court’s order granting summary judgment on Blair’s

claims of negligent hiring and negligent retention, and remand this

case for further proceedings consistent with this opinion. 

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED

WIDENER, Circuit Judge, concurring in part and dissenting in part:

I respectfully dissent. While I agree with the result reached by the

majority which affirms the district court’s grant of summary judgment

on the respondeat superior claim, I am of opinion that the district

court’s order granting summary judgment to Defender Services on

Miss Blair’s claims of negligent hiring and negligent retention should

be affirmed, as well. 

BLAIR v. DEFENDER SERVICES 11
The district court correctly found that,

[g]iven that prevailing Virginia law does not obligate an

employer who has asked about criminal history and been

told that none exists and who has no reason to suspect a

criminal record to investigate prior criminal record "in the

exercise of reasonable care," no reasonable trier of fact

could hold Defender Services negligent for not making the

far more detailed background search that might have

brought a temporary restraining order to light. 

(quoting Southeast Apartments Management, Inc. v. Jackman, 257

Va. 256, 261, 513 S.E.2d 395, 397 (1999)). District Court Slip op. at

7-8. Therefore, I would affirm all the findings of the district court. 

The majority relies on "expert testimony proffered by Blair that a

background check would have indicated the existence of a protective

order resulting from a criminal complaint." Slip op. at 9. The expert

testified in an affidavit that the emergency protective order "should

have been discovered by a reasonable background investigation" and

that "[h]ad Defender Services, Inc. performed a criminal background

check, they would have discovered the Protective Order and Harris’

assignment to Virginia Tech would not have been approved." 

Miss Blair’s principal argument is that Defender Services failed to

conduct a reasonable pre-employment investigation into Harris’ criminal background as the contract between Defender Services and Virginia Tech required, and because it did not, it is liable for negligent

hiring. The contract between Defender Services and Virginia Tech

cannot, however, give rise to a tort duty owed by Defender Services

to Miss Blair. An unfulfilled contractual responsibility alone cannot

automatically create tort liability. Richmond Metropolitan Authority v.

McDevitt Street Bovis, Inc., 256 Va. 553, 558, 507 S.E.2d 344, 347

(1998) (noting that "the duty tortiously or negligently breached must

be a common law duty, not one existing between the parties solely by

virtue of a contract" (emphasis added)). 

The majority concludes that a genuine issue of material fact exists

as to whether Defender Services should have known of Harris’ propensities because it did not perform a criminal background check.

12 BLAIR v. DEFENDER SERVICES
Slip op. at 9. Virginia law, however, does not obligate an employer

who has asked about criminal history and been told that none exists,

and who has no reason to suspect a criminal record, to investigate a

prior criminal record "in the exercise of reasonable care." Southeast

Apartments, 257 Va. at 261, 513 S.E.2d at 397. Moreover, "proof of

the failure to investigate a potential employee’s background is not

sufficient to establish the employer’s liability. Rather, the plaintiff

must show that an employee’s propensity to cause injury to others

was either known or should have been discovered by reasonable

investigation." Majorana v. Crown Central Petroleum Corp., 260 Va.

521, 531, 539 S.E.2d 426, 431 (2000). 

Even further, and persuasive, Virginia statutory law states that

"[t]he issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent." Va. Code

§ 16.1-253.4(G). Also, "[a]n emergency protective order issued pursuant to this section shall expire seventy-two hours after issuance." It

may be extended until 5:00 p.m. the next business day the court is in

session, which was done here until April 10, 2000 at 5:00 p.m. Va.

Code § 16.1-253.4(C). 

The emergency protective order was issued in the interim period

between Harris’ first and second employment with Defender Services.

Harris’ application for employment is dated October 4, 2000, and the

application for the protective order is dated April 2, 2000, as is the

protective order. Even if the protective order has something to do with

the case, which is forbidden by Va. Code § 16.1-254(G), it had

expired on April 10, 2000, almost six months prior to the time the

application for employment was made. Defender Services had no reason to suspect, based on its initial investigation and employment of

Harris and his employment with Virginia Tech, which had received

a negative criminal background check, that Harris was capable of any

violence. Further, there was no evidence presented that an emergency

protective order would have been discovered in a criminal background check. Majorana, 260 Va. at 532, 539 S.E.2d at 432. In fact,

the check run by the investigating officer after the attack on Miss

Blair in March 2001 showed no convictions. To discover an emergency protective order in a potential employee’s history, an additional

investigation must be executed. This additional inquiry, when a criminal background check shows no convictions, would require an investiBLAIR v. DEFENDER SERVICES 13
gation that goes beyond "the exercise of reasonable care." Southeast

Apartments, 257 Va. at 261, 513 S.E.2d at 397. 

Therefore, even if Defender Services had taken the extra step to

examine the records of the court not of record in Harris’ county of

residence to discover the existence of an emergency protective order,

under Virginia law it could not use that information as evidence of

any wrongdoing on Harris’ part. Holding Defender Services negligent

for not making the far more detailed background search that might

have brought an emergency protective order to light would be unreasonable and would impose an undue burden on an employer’s hiring

practice. 

The upshot of the majority decision is that we are engrafting on

Virginia law a requirement that in each case of employment a prospective employer must search for even unsuccessful misdemeanor

prosecutions in the records of the courts not of record of the county

of residence of the applicant, here Giles County, although not the

same as the place of employment, here Montgomery County. In

default of such a search we hold the employer may be found negligent. In my opinion this is an unreasonable burden to place on

employers. Far worse is the disqualification from employment placed

on youth by our decision. 

I am thus of opinion that the judgment of the district court should

be affirmed.

14 BLAIR v. DEFENDER SERVICES