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Negligent Hiring in Texas Wrongful Death Lawsuit

A recent Texas wrongful death decision arose after a car salesman shot and killed his sales manager. One autumn, there was a confrontational sales meeting, and the salesman went into his manager’s office, took out a gun, and shot him. The sales manager died a few days later, and the salesman pled guilty to first-degree murder and went to prison on a life sentence. The manager’s family sued the salesman, as well as dealership-related entities and an employment screening company.

Back when the salesman applied at the dealership where he worked, the dealership used the services of a pre-employment background screening company to screen prospective employees. The company would interview a job applicant, perform a drug test and a criminal records check, and provide the results of the screening to the dealership. In this case, the screening company reported that there were no criminal records, and the drug test was negative. It also stated there was an inconsistency about why he left his earlier job.

The salesman was hired, and then he left on good terms and moved elsewhere. He worked at other car dealerships and then came back to Texas and applied for a sales job. He went through another screening and was hired, but he quit. He again applied with the dealership for a sales job and went through another screening.

This time, the screening company again said that the drug test was negative, and there weren’t any criminal records found in the counties where he’d worked. He had, however, given inconsistent information during interviews. He was terminated from one place after telling a manager not to yell at him. He left another job because a customer complained he was unprofessional, and he claimed longer employment at a particular place than he’d actually had.

The salesman misrepresented his employment history to the dealership employer. The company’s director of HR later testified that it was the dealership’s responsibility to verify details of a potential employee’s prior employment. Another company representative said that the company didn’t look as hard at his application because he’d worked for them before. He’d gotten a license from the city, which had required him to pass another criminal records search based on the FBI database.

The salesman killed his manager three months after being rehired. The manager’s widow claimed negligence and gross negligence by the dealership entities as well as the screening company. She also sued the salesman for compensatory damages based on his actions. The victim’s parents also intervened to claim wrongful death damages.

The defendants asked for summary judgment. The screening company claimed that it didn’t owe a duty to the decedent and that there was no evidence that it had breached a duty or that its actions legally caused the death. The trial court granted a partial judgment in its favor. It also partially granted and partially denied the motion filed by the dealership entities, such that the primary dealership defendants had to go to trial.

The appellate court explained that in Texas, there’s no duty to take action to prevent harm to others without a special relationship or circumstance. A duty to use reasonable care can be created when someone undertakes to give services to another person, even if this is voluntary. Somebody who undertakes to render services to someone else that are necessary to protect the third person is subject to liability to the third person for physical harm from a failure of due care when the failure increased the risk of harm, he undertook to perform a duty owed to the other party by a third party, or harm was experienced due to the reliance of the other party or a third party.

In this case, the decedent’s family argued that the screening company had undertaken a duty owed by the dealership to use reasonable care in screening and that it induced the dealership to rely on its undertaking. It argued that the screening company should have seen entries asking for protection orders and including a reference to adult abuse and stalking. Once these were accessed, the company would have seen that his ex-wife had made numerous allegations in multiple requests for protective orders about how he’d threatened to kill her and pour gas on her, among other abuse.

The appellate court disagreed. It reasoned that the results had been reported, but other than that, the screening company had no control over whether the manager was hired. The dealership had only used the company’s services to identify prison and drugs and hadn’t expected a report about civil or family court matters. The appellate court explained that when parties specifically agree to a particular scope of services, promotional material or other descriptions can’t replace the actual undertaking.

For these and other reasons, the trial court’s judgment was affirmed.

If a loved one dies as a result of negligence, the San Antonio wrongful death attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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