Monday 1 February 2010

WHO IS LIABLE WHEN THE SERVICE TECH COMES BACK LATER TO STEAL, RAPE AND MURDER?

A major retail provider hires an outside contractor to install a particular device in a home. The contractor hires a sub-contractor as an independent contractor and sends that person to the home to do the actual installation. During the installation the sub-contractor had time to “case out” the home. The sub-contractor learned of the personal property and where it was located. The sub-contractor also learned about the individuals who live in the home and about their comings and goings. Three (3) days after a proper installation was performed the sub-contractor installer came back to the home with one of his buddies who was recently released from prison and brutally raped and murdered the woman resident, and took her credits cards as well.


The question arises as to legal responsibility for the rape, death and theft. Is the retailer responsible for damages for hiring the contractor? Is the contractor responsible for the damages for hiring the sub-contractor? Is the sub-contractor responsible for damages for performing the acts of violence? Obviously, the sub-contractor is has liability. All parties are likely to be sued. Generally, in a situation like this, the courts will look to whether the sub-contractor was in the “scope of responsibility” when the assault, death and theft took place. In this situation it would seem that the retailer and contractor would have no responsibility, since the damages occurred the three days outside of the scope of responsibility. However, pursuant to the reasoning in the recent Texas Supreme Court case involving Kirby Vacuums, the general rule has been turned upside down. The issue goes to the fact that but for the well known name of the retailer and the work that had to be preformed for the retailer’s customer, the sub-contractor would have never been in the customer’s home in the first place. The name of the retailer itself created a sense of security that gave the perspective customer confidence to let the representative in the home. Therefore the damages are to a great degree a result of the trusted name of the retailer. Since the retailer’s name has been branded to instill trust, then to a great extent the retailer cannot escape liability for its agent, regardless that they were a contractor, a contractor’s employee, a sub-contractor, an independent contractor or some other type of agent of the retailer. Hence the question goes back to one of negligent hiring. Here are the questions the retailer must properly answer and implement to build a wall of liability protection between its agents and its customers:

  • Did the retailer perform a criminal background investigation on the contractor?
  • Did the retailer require the contractor to perform a criminal background investigation on its employee, sub-contractor, independent contractor or agent who did the work?
  • Does the retailer have a system in place to the best of the retailer’s ability to track the service tech who ultimately performed the service work?
  • Do the retailer and contractor have a system in place to notify the customer as to who is going to be doing the work and to provide the customer a system to verify that service tech’s criminal background by quick internet access?
  • Does the retailer, through its system of tracking and verification, educate the customer to look for the identification badge and photograph of that same service tech before allowing that service tech to enter the home?

This is a simple, but necessary, system. All retailers who send contractors and/or contractor employees, sub-contractors, independent contractors and/or agents into homes of their customers, must be aware of their responsibilities to perform criminal background investigations on the individuals going into their customer’s homes. A simple background check or search, with or without a system of tracking in place, or without a verification system and customer education in place, will not protect the retailer from liability.


Only in this way can retailers build up a wall of liability protection between their contractors, their contractor’s employees and their customers. Furthermore, retailers utilizing such an integrated liability protection system can build greater peace of mind by meeting the standards of doing the best they reasonable can to protect their customer from individuals who may have propensities to cause harm or damage.


About The Author:

J. Denton (Denny) Dobbins is Nationally and Internationally recognized as the world’s leader in Premises Liability Protection and has been featured across North America sharing the stage with Political Leaders, Police Celebrities, Administrators and Business Leaders. Since 1978, Denny has been involved with the detection and deterrence of Criminal Activity in properties and employment of all types.


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