Written by James T. Taylor, Esq.
Edited by William J. Pfund, IV, Esq.
It was every employer’s worse nightmare. On August 26th, 2015, at 6:46 a.m., Lester Flanagan, a disgruntled former employee of WDBJ, ambushed two of his former colleagues as they were conducting a live televised interview of Victoria Gardner at Bridgewater Plaza in Moneta, Virginia. He shot and killed both of his former colleagues before wounding Gardner, the interviewee. Gardner only survived by feigning death and remaining completely still.
Two years prior, Flanagan was terminated from WDBJ following a history of verbal and physical abuse toward co-workers. During his termination meeting, Flanagan slammed his fist down on the table and warned, “I’m not leaving, you’re going to have to call the f***ing police…I’m going to make a stink and it’s going to be in the headlines.” Later as he was escorted from the building by police, he gave a small wooden cross to a news director and insinuated, “You’ll need this.”
As a result of the shooting, Victoria Gardner filed a $6,000,000.00 lawsuit against WDBJ for negligently hiring and negligently retaining Lester Flanagan. Gardner’s lawsuit alleged that WDBJ failed to find troubling aspects of Flanagan’s background before hiring him, then waited too long to fire him the following year after he verbally abused and physically threatened co-workers. Plaintiff tried unsuccessfully to argue that a business proprietor-invitee relationship was established giving rise to a duty to Ms. Gardner. However, the case was dismissed in June 2020 on demurrer because Plaintiff failed to establish that a duty was owed to Ms. Gardner by WDBJ.
While Virginia courts have generally ruled that there is no duty to warn or protect against third-party criminal acts of violence, there are exceptions to this rule that could incur liability against the employer. Avoiding these kinds of lawsuits starts with the hiring process, and continues throughout the lifetime of the employee-employer relationship. Failing to properly screen or to respond when an employer knows an employee is negligent or unfit can have dire consequences for employers.
The Virginia Supreme Court has recognized the independent tort of negligent hiring and negligent retention where (1) the employer knew, or should have discovered by a reasonable investigation, propensities in an employment position, (2) that the hired individual posed a threat of injury to others, and (3) the employer’s negligent hiring was the proximate cause of the harm to Plaintiff. Interim Personnel of Central Virginia v. Messer, 263 Va. 435, 559 S.E.2d 704 (2002). Davis v. Merrill, 112 S.E. 628, 133 Va. 69 (1922); Weston’s Adm’x v. St. Vincent, Etc., 107 S.E. 785, 793, 131 Va. 587, 611 (1921).
Interestingly, the mere failure to do a background check doesn’t necessarily establish liability for Negligent Hiring, and nothing in case law imposes such a duty on employers. However, while there is no bright-line rule that mere proof of failure to conduct a background investigation triggers liability, the Virginia Supreme Court requires businesses to do some type of reasonable investigation. Majorana v. Crown Central Petroleum Corp., 260 Va. 521, 531(2000); Southeast Apts. Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (1999).
Employers must be vigilant to mitigate potential liability from a negligent hiring or negligent retention lawsuit. They should start by reviewing hiring procedures and policies and ensure that they meet the legal standard of reasonability as dictated by Majorana and Southeast Apts. Policies should be stringently followed and updated regularly. Leadership should be well-versed in identifying potential liability issues and any red flags suggesting an individual’s propensity to be a threat to others should be immediately addressed. It is valuable to have a well-written and implemented workplace violence prevention program that comports to federal and state laws. Such policies and procedures are evidence of diligence should an employer face a negligent hiring or negligent retention claim.
KPM LAW safeguards its clients, advising them and ensuring that they are equipped for every liability situation. In the event of a lawsuit, look no further for uncompromising representation. Give us a call if you have questions about how we may assist you.