Smith v. Orkin Exterminating Co.

540 So. 2d 363, 13 A.L.R. 5th 962, 1989 La. App. LEXIS 367
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1989
DocketNo. CA 87 1540
StatusPublished
Cited by7 cases

This text of 540 So. 2d 363 (Smith v. Orkin Exterminating Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Orkin Exterminating Co., 540 So. 2d 363, 13 A.L.R. 5th 962, 1989 La. App. LEXIS 367 (La. Ct. App. 1989).

Opinion

EDWARDS, Judge.

This is an appeal by defendant, Orkin Exterminating Company, Inc., in a personal injury suit arising out of injuries sustained in a sexual assault conducted by one of Orkin’s employees.1 For reasons stated herein, we affirm.

[365]*365FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute and the issues are only of law. Plaintiff, Ms. Smith,2 hired the defendant, Orkin Exterminating Company, Inc., to provide exterminating services for her home. In the process of providing those services, Orkin sent into plaintiff’s home one of its employees, Mr. Vincent Johnson.

Mr. Johnson had been hired as a service representative of Orkin in March of 1977. As part of the security measures that Or-kin had established to protect its customers and itself, Mr. Johnson had to undergo vigorous screening prior to being hired. That screening included the taking of a mandatory polygraph examination as well as a background investigation. During the initial polygraph examination, Mr. Johnson was extensively questioned as to any criminal activity in his past. Mr. Johnson passed the polygraph and was hired.

As an additional protective measure for its customers and itself, all Orkin employees were required to submit to yearly polygraph examinations as a continuing security monitor. Mr. Johnson took such a security polygraph on February 21,1982, and was allowed to continue his employment duties entering customers’ homes for pest control services. Prior to this polygraph, Mr. Johnson had been arrested for burglary and had raped another Orkin customer. On May 13, 1983, Mr. Johnson, while in the performance of his exterminating duties, formulated and began carrying out the assault which became the subject of this suit. While spraying plaintiff’s home, Mr. Johnson unlocked a window to insure he would have access upon his return to assault plaintiff. On May 15, 1983, Mr. Johnson returned and raped the plaintiff. After filing suit, the trial judge, on submitted briefs, memorandum, and argument found Orkin liable and this appeal followed.

LAW

We note at the outset that this is an ordinary negligence suit based upon Or-kin’s duty as a provider of services carried out in a customer’s home.3 Whether negligence is actionable in Louisiana is determined by a duty-risk analysis.

The pertinent inquiries are:

I. Whether the conduct of which plaintiff complains was a cause-in-fact of the harm;
II. Whether there was a duty on the part of the defendant which was imposed to protect against the risk involved;
III. Whether there was a breach of that duty; and
IV. Damages.

Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 at 1370 (La.1984).

CAUSE-IN-FACT

The first inquiry is whether the negligence of Orkin was the cause-in-fact of plaintiff’s injuries. The trial judge, in his reasons for judgment states, in relevant portion:

The main basis of the case, as the Court sees it, is that the employee had been arrested in Vidalia, Louisiana a few days before he was given his yearly polygraph test. The plaintiff takes the position that if the polygraph test had been administered properly that there would probably have been a determination that this employee had recently been arrested for the crime of burglary and that therefore, the employer should have taken the necessary steps to prevent him from going into homes as a result of his employment.

and further:

The Court feels that a preponderance of the evidence indicates that Orkin did not do everything that it could do under the circumstances. The court is of the opinion that the polygraph test should have been fine tuned a little bit more, [366]*366particularly in this instance. Therefore, the Court finds liability on the part of Orkin. (Emphasis added).

Hence, the trial judge found that but for defendant’s negligent administration of the polygraph, plaintiff would not have been injured. The cause-in-fact of plaintiffs injuries was the negligent administration of Orkin’s own chosen method of protecting itself and its customers. The findings of fact of the trial judge are to be given great deference. Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), on remand 370 So.2d 1262 (La.App. 3d Cir.), cert. denied, 374 So.2d 660 (La.1979). Cause-in-fact is usually enunciated as whether the defendant’s conduct was a “substantial factor” in bringing about the harm. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Here, Orkin had recently given a polygraph examination to Mr. Johnson which was calculated to screen illegal activity of any of its employees. Its failure to ask the proper questions allowed Mr. Johnson to continue in his employment. The continued employment gained him access to plaintiff’s home where he unlocked her window. “But-for” Orkin’s failure to properly screen its employee, the plaintiff would not have been raped.

The defendant cannot escape liability for an intentional tort if its negligence led to that tort. Harris, 455 So.2d at 1371. The questions asked of Mr. Johnson in his regular yearly security check were different than the questions asked in his pre-employment screening polygraph. In the regular security polygraph given yearly there were seventy-four questions asked, with only six concerning the employee’s relationship with customers. No questions were asked about prior arrests or assaults and the vast majority of the questions were targeted to protect Orkin rather than its customers.4 This, despite the fact that the initial screening did contain questions about prior criminal activity. The trial judge found this failure to properly screen was the cause-in-fact of plaintiff’s injuries, and we find no error in that determination.

DUTY

Duty is a question of law. Generally there is no duty to protect others from the criminal activity of third persons. However, when a duty to protect others against such criminal conduct has been assumed, liability may be created by the negligent breach of that duty. Harris, 455 So.2d at 1364. Moreover, when an employer hires an employee who in the performance of his duties will have a unique opportunity to commit a crime against a third party, he has a duty to exercise reasonable care in the selection of that employee. Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192, 199 (La.App. 4th Cir. 1973), cert. denied, 290 So.2d 899 (La.1974). Under the unique circumstances of Orkin’s business, we also believe that there is a continuing duty to exercise reasonable care in the retention of its employees.

Dean Prosser, in examining responsibility for intentional torts, explains situations which may give rise to liability. In his treatise he writes:

There are, however, other situations, in which either a special responsibility resting upon the defendant for the protection of the plaintiff, or an especial temptation and opportunity for criminal misconduct brought about by the defendant, will call upon him to take precautions against it.

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Smith v. Orkin Exterminating Co., Inc.
540 So. 2d 363 (Louisiana Court of Appeal, 1989)

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540 So. 2d 363, 13 A.L.R. 5th 962, 1989 La. App. LEXIS 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-orkin-exterminating-co-lactapp-1989.