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Timothy Mullin Obtains Dismissal By Way of Summary Judgment in Negligent Hiring Case

June 27, 2014

Timothy P. Mullin, Esquire a shareholder with Zarwin, Baum, secured the dismissal of claims against a pool company after employees from the company stole jewelry from a customer’s house.

The defendant pool company was retained to service the plaintiffs’ hot tub at their residence. The employees gained access to the house via a security code that was given to the pool company by the plaintiffs so that the employees could access a remote control cover that covered the hot tub. During a two month period while the plaintiffs were residing at their summer beach house, the two employees of the pool company allegedly stole over seventy thousand dollars of jewelry located in the plaintiffs’ home while accessing the remote for the hot tub cover. After stealing the jewelry, the employees sold it to a pawn shop. Police eventually arrested the employees and they pled guilty to theft.

Plaintiffs brought an action against the pool company to recover the amount of the stolen jewelry. Plaintiffs alleged that the pool company was vicariously liable for the actions of its employees. Plaintiffs also alleged that the pool company was negligent in the hiring and supervision of the two employees. During discovery it was determined that one of the employees had been arrested on a similar theft charge prior to being hired by the pool company. The pool company did not perform any type of background check on the employees prior to hiring them.

After discovery, Mr. Mullin filed a motion for summary judgment on all of plaintiffs’ claims. With regard to the vicarious liability allegations, Mr. Mullin argued that even though it was clear that these two employees were agents of the pool company, their actions with regard to stealing the jewelry were outside the scope of their employment. The court agreed noting that the employees were hired to clean pools and hot tubs and that stealing from customers was not within the scope of their employment.

With regard to the negligent hiring claim Mr. Mullin argued that the pool company had no reason to know that the two employees had any alleged dangerous characteristics which would have made their actions foreseeable. Mr. Mullin noted that the job of cleaning pools is not the type of job that would require any type of background check. Mr. Mullin further argued that even if a criminal background search was required and performed, it would not have shown that either of the two employees had been convicted of a similar offense in the past. Although one of the employees had been arrested on a similar offense before being hired by the pool company, he was not convicted of the offense until after he commenced employment with the pool company. The court agreed with Mr. Mullin’s arguments.

Finally, with regard to the negligent supervision claim, Mr. Mullin argued that the plaintiff could not show that the pool company knew or should have known of a reason or need to supervise the employees. Again, because the employees were hired to clean pools, and because there was no information that either of the employees would commit such an offense prior to the thefts, Mr. Mullin argued there was no need to have a supervisor watching the employees at the times when they were at the plaintiffs’ home.

The court agreed with all of Mr. Mullin’s arguments and dismissed all of plaintiffs’ claims with prejudice.


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