Thomas Hines, et al., Respondents, vs. Aandahl Construction Co., LLC, Defendant, Metropolitan Painting Associates, Appellant.

Thomas Hines, et al., Respondents, vs. Aandahl Construction Co., LLC, Defendant, Metropolitan Painting Associates, Appellant. A05-1634, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1634

 

 

Thomas Hines, et al.,

Respondents,

 

vs.

 

Aandahl Construction Co., LLC,

Defendant,

 

Metropolitan Painting Associates,

Appellant.

 

 

Filed September 12, 2006

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 03-13348

 

 

Shawn M. Raiter, Louise Dovre Bjorkman, Larson King LLP, 2800 Wells Fargo Place, 30 East Seventh Street, St. Paul, MN 55101-4922 (for respondents)

 

Lisa M. Elliot, Elliot Law Offices, P.A., 2409 West 66th Street, Minneapolis, MN 55423 (for appellant)

 

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Respondents Thomas C. and Mary  Lou Hines brought this action against appellant Metropolitan Painting Associates for the negligent hiring of a painter whose accomplices robbed and assaulted the Hineses in their home.  Metropolitan challenges the judgment and the denial of its posttrial motions.  Because we conclude that Metropolitan owed a duty as a matter of law to the Hineses, because the damage award was not manifestly contrary to the evidence, and because we see no abuse of discretion in the admission of testimony from the Hinses' expert witness, we affirm.

FACTS

In early 2001, the Hineses hired Metropolitan to assist with their home remodeling project.  William Patterson, the owner of Metropolitan, hired Allen Cain to do painting at the Hines home.  Patterson had hired Cain to paint on a contract basis since the early 1990's.  Although Patterson knew that Cain had a chemical dependency problem and a criminal history that included three felony convictions for burglary, he did not conduct a drug evaluation or a background check of Cain.  Shortly before the Hines project, Patterson learned that Cain had stolen a laptop computer from another client's home.  Cain admitted to the theft and returned the laptop.

            The Hineses' remodeling project was completed on May 7, 2001.  On May 18, 2001, Patterson fired Cain after discovering that Cain had stolen checks from the Hineses and another client.   Four days later, Cain, with three accomplices, returned to the Hines home intending to burglarize it, but left when Cain realized the Hineses were inside at home.  Soon afterwards, two of Cain's accomplices returned to the Hines home and robbed and assaulted the Hineses.  The Hineses suffered serious physical and emotional injuries.

            The Hineses brought this lawsuit against Metropolitan.  Before trial, all claims, except the negligent hiring claim, were dismissed.  A jury found Metropolitan negligent in hiring Cain and awarded damages, including $43,000 in future medical expenses to Mary Lou Hines.  The district court denied Metropolitan's subsequent motion for judgment notwithstanding the verdict or a new trial.

D E C I S I O N

I.

            Metropolitan argues that it did not owe a duty of care to the Hineses when it hired Cain.  The existence of a legal duty in a negligence action is a question of law, reviewed de novo.  H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).  Whether a duty exists depends on the relationship between the parties, the foreseeability of harm to others, and public policy concerns.  Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989). 

            Negligent hiring is defined as 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. 

 

Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983).  Whether a duty arises from the specific employment depends upon the "severity of the risk third parties are subjected to by an incompetent employee."  Id.at 913. 

Metropolitan owed a duty of care to the Hineses to hire an appropriate employee to paint.  The Hineses were subjected to a severe risk from Cain's employment: as a direct result of that employment, Cain gained access to their home, was able to survey their valuables, and determined that the home was suitable for burglary. 

            Metropolitan next argues that, even if it owed a duty, it could not have breached its duty because the harm occurred after Cain's termination.  But in a negligent hiring claim, the duty is owed and is breached at the time of hiring, not at the time of the assault.  "Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness."  Yunker v. Honeywell, 496 N.W.2d 419, 423 (Minn. App. 1993) (quotation omitted), review denied (Minn. Apr. 20, 1993);Restatement (Second) of Torts § 302B cmt. e (1965) (noting liability exists not because of when injury occurs, but because "actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct"). 

            We review the jury's verdict that Metropolitan breached its duty to the Hineses by asking whether that verdict is manifestly and decidedly contrary to the evidence as a whole.  See Flom v. Flom, 291 N.W.2d 914, 916 (Minn. 1980). 

            The verdict is not contrary to the evidence.  Patterson knew that Cain would enter private residences to paint; he was aware of Cain's chemical dependency and criminal history, in particular of Cain's recent theft of another client's laptop.  Yet Patterson failed to inquire into Cain's suitability by conducting a background check or investigating Cain's chemical dependency issues.  The evidence supports the jury's determination that Metropolitan breached its duty by not taking reasonable care in hiring Cain.

Metropolitan argues that the resulting harm was unforeseeable because Cain had no history of violence during his previous burglaries.  But the duty and breach elements of a negligent hiring claim do not require the specific type of injury to be foreseeable.  See Ponticas, 331 N.W.2d at 912 (stating that it is reasonably foreseeable that person with history of offenses of violence could commit another violent crime even if person had not committed that particular type of offense).  Given Cain's criminal history of burglary and his recent episode of theft, his commission of a property crime was reasonably foreseeable.  Metropolitan could also have foreseen that Cain, given access to private residences, could not only burglarize them but also injure residents.  It was not necessary to foresee whether residents would be harmed by Cain actually inflicting the wounds or by his accomplices committing assault. 

Metropolitan argues that the criminal acts of the actual perpetrators broke the chain of causation.  Criminal acts of third persons may break the causal connection between the breach of duty and the actual harm.  See Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 158 n.3 (Minn. App. 1993) (third-party's criminal act was unforeseeable and broke chain of causation between landlord's failure to provide adequate security and resulting assault on tenant), review denied (Minn. July 15, 1993).  Whether the criminal acts of an employee's co-conspirators break that connection is a case of first impression in Minnesota.

Criminal acts of third persons have been held not to break the causal connection if the employee has given the third parties "vital information" to carry out the crimes.  See, e.g., Welsh Mfg. Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436, 438 (R.I. 1984).  Pinkerton's involved burglary of a company that had a vault of gold on its premises.  The company hired the Pinkerton security firm to protect its property.  Within 45 days, three thefts were committed, resulting in a loss of gold valued at more than $200,000.  The first two thefts were carried out while a Pinkerton's employee was guarding the vault; that employee quit working before the third theft.  Evidence at trial showed that the employee procured the security job to facilitate the thefts and provided vital information about the facility to the parties who carried out the third theft.   The court held that, due to the sensitive nature of guarding the large quantities of gold, Pinkerton's had a duty of reasonable care in "selecting an employee who, as far as could be reasonably known, was competent and fit for the task of guarding the . . . facility" and that duty included an obligation to investigate the employee's past work, background, character, and qualifications.  Id.at 440. 

Pinkerton's is analogous.  Cain also committed a criminal act, i.e., conspiring with his accomplices to burglarize the Hines home.  Like the Pinkerton's employee, Cain gave the conspirators key information about the house and the occupants.  Cain's involvement in the conspiracy was sufficient to link the perpetrators' crimes against the Hineses to Metropolitan.

Metropolitan also relies on Stuedemann v. Roman Nose, 713 N.W.2d 79, 84-85 (Minn. App. 2006) (holding that scope of duty to control another's conduct is limited by foreseeability of "specific danger" and that unforeseeable criminal acts by third persons are sufficient to break chain of causation), review denied (Minn. July 19, 2006).  But Stuedemann is distinguishable:  it concerns wrongful death, not negligent hiring, and it focuses on whether a licensed group home had a duty to control its residents' criminal behaviors, not whether an employer has a duty to exercise reasonable care in hiring employees.  Metropolitan breached its duty of care to the Hineses by hiring Cain to paint inside their house.

II. 

            Metropolitan claims that the evidence does not sustain the jury's award of $43,000 in damages for Mary Lou Hines's future medical expenses.  Damages are a question of fact for the jury to decide based on the evidence, and wide deference is accorded to a jury's finding as to how much money will adequately compensate the plaintiff.  Koehler v. Kline, 290 Minn. 485, 487, 185 N.W.2d 539, 541 (1971).  A damage award may be set aside only if "manifestly and palpably contrary to the evidence."  Levienn v. Metropolitan Transit Comm'n, 297 N.W.2d 272, 273 (Minn.1980). 

In a claim for damages for future medical expenses, a plaintiff must show the necessity of future damages in the form of future medical treatments and establish by expert testimony the amount of damages.  Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990).  But it is not necessary that "the evidence be unequivocal or that it establish future damages to an absolute certainty."  Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980).  Damages need be proved only by a fair preponderance of the evidence.  Id.

            The jury awarded Mary Lou Hines's future medical expense based on evidence submitted at trial.  The jury heard from her neurologist that she had a permanent brain injury involving cognitive loss and neural degeneration; that, due to the degenerative nature of her injuries, she would likely continue to suffer neural loss; and that, if she lived long enough, her cognitive degeneration would require placement in assisted living.  It was the neurologist's opinion that she be seen at least twice a year and that she receive medication, as some "people become behavior issues, in which case other medications become important."  He estimated the monthly cost of medication at about $200 and the annual cost of diagnostic scans at about $3,000.  Metropolitan's medical expert agreed that Mary Lou Hines had suffered from post-traumatic stress disorder as a result of the attack but opined that her disorder required only counseling. 

After hearing the evidence and weighing the credibility of the experts, the jury determined that Mary Lou Hines was entitled to $43,000.  Metropolitan argues that, because "[t]here is no evidence that [she] intends to follow [the neurologist's] recommendations for future treatment," the award is speculative.  But the standard is that the medical expenses be necessary and that an expert testify to the amount.  Lind, 450 N.W.2d at 358.  Because the award is not "manifestly and palpably contrary to the evidence," we affirm. 

III. 

Metropolitan also argues that the district court erred by admitting the expert testimony of James Dallas.  "If scientific, technical, or other specialized knowledge will assist the [jury] to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."  Minn. R. Evid. 702.  The district court must determine whether an expert is qualified to testify in a given subject area, and the qualification need not stem from formal training but may also include "any knowledge, skill, or experience that would provide the background necessary for a meaningful opinion on the subject."  Minn. R. Evid. 702, 1977 advisory comm. cmt.  The question of whether to admit evidence is within the district court's discretion, absent an erroneous interpretation of law or an abuse of discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). 

Metropolitan suggests that, because Dallas "had no experience or knowledge of the hiring practices in Minnesota, let alone for construction employers in Minnesota," he was not qualified to testify on the standard of care in hiring employees.  But Metropolitan offers no support for the view that an expert must be knowledgeable in the particular practices of a given locality.  Furthermore, the specific industrywhether construction contracting, house cleaning, or cable installationis not relevant; the safety and welfare of individual residents arises across all industries when an employee enters private residences.  The universality of the risks of exposing residents to incompetent or unsuitable employees entering their home negates a need for the expert to be proficient in the hiring practices of a particular locality or a particular industry.

Metropolitan's second complaint, that the testimony was not helpful to the jury, is incongruous; Metropolitan's own expert testified on the same issues.  We see no abuse of discretion in the admission of Dallas's testimony.

Affirmed.