Phillips v. TLC Plumbing, Inc.
Filed April 3, 2009, Fourth District, Div. One
Cite as 2009 SOS 1965

Employer not Liable for Tortuous Conduct committed by Former Employee

James Joseph Cain (Cain) was a plumbing service repairman of TLC Plumbing, Inc. (TLC). When he was hired, Thad L. Condon, owner of TLC, knew that he was out on parole for conviction of domestic violence and/or arson offense involving his then wife.

Cain had been romantically involved with Judith Philips (Judith) when the former made several services call to former’s place.

In the meantime, TLC terminated Cain’s services for misuse of a company vehicle, drug and alcohol use, and apparently threatening a coworker.

When Judith ended their relationship and applied for restraining order against Cain, the latter shot and killed her.

Consequently, Judith’s daughter, Trisha Philips (Trisha) sued defendants TLC and Condon for negligently hiring and retaining Cain knowing him to be a convict.

When the trial court granted defendant’s motion for summary judgment, Trisha appealed.

In dismissing the appeal, the appeal court made the following explanations:

Defendants owed no duty of care with respect to the post-termination tortuous conduct of its former employees. In fact, the shooting incident happened two years after Cain was terminated.

"The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff's injury.

Tortuous liability is limited by law. It should have some causal connection between the employer’s negligence in selecting or controlling the employee, the employee's employment or work, and the harm suffered by the third party.

In view of the foregoing, the appeal court affirmed the trial court’s decision in granting defendant’s motion for summary judgment.