## Facts

- B & L Motor Freight, Inc. hired Edward Harbour as an over-the-road truck driver.
- Harbour’s employment application asked about vehicular offenses and other criminal convictions.
- B & L verified Harbour’s vehicular-offense history but did not verify his negative response regarding other criminal convictions.
- Harbour in fact had convictions for violent sex-related crimes and had been arrested the year before for aggravated sodomy of two teenage hitchhikers while driving a truck for another employer.
- B & L assigned Harbour an over-the-road truck equipped with sleeping facilities and provided written instructions, including a prohibition on picking up hitchhikers.
- On January 24, 1978, at an Indiana toll-road plaza, Harbour picked up 17-year-old hitchhiker Karen Malorney.
- In the truck’s sleeping compartment, Harbour repeatedly raped and sexually assaulted Malorney, threatened to kill her, and beat her; he later released her.
- Harbour was arrested, convicted, and sentenced to 50 years without parole.
- Malorney sued B & L seeking compensatory and punitive damages, alleging reckless, willful and wanton misconduct in negligently hiring Harbour without adequate background investigation and entrusting him with a sleeper-equipped truck.

## Issues

1. Whether, under these circumstances, an employer had a duty to investigate an over-the-road driver applicant’s non-vehicular criminal record and verify the applicant’s negative answer about criminal convictions before hiring and providing a sleeper-equipped truck.
2. Whether the existence of that duty (and related factual disputes about reasonable care) made summary judgment improper.

## Decision

- The appellate court affirmed the trial court’s denial of summary judgment and remanded.
- The court held B & L owed a duty, under the circumstances, to investigate Harbour’s non-vehicular criminal record and to verify his negative response regarding criminal convictions before employing him as an over-the-road driver and furnishing a sleeper-equipped truck.
- The court held whether B & L breached that duty by failing to exercise reasonable care in hiring presented a question of fact for the jury.

## Legal Principles

- An employer may owe a duty to exercise reasonable care in hiring where the employment places the employee in contact with the public in a manner creating a foreseeable risk of harm.
- Duty is a question of law informed primarily by foreseeability, considering the nature of the work and the risk created by entrusting the employee with autonomy and instrumentalities of the job.
- Where the job foreseeably involves contact with vulnerable members of the public (including foreseeable violations of employer rules), reasonable care may require investigation of an applicant’s relevant criminal background and verification of application responses.
- Arguments that background investigation is too burdensome require evidentiary support; when the risk of severe harm is substantial and the burden appears modest, a duty to screen may be recognized.
- Once duty is established, whether the employer acted with reasonable care is generally a factual question unsuitable for summary judgment if reasonable persons could differ.

## Conclusion

The court recognized a duty, on these facts, for a motor carrier to investigate and verify an over-the-road driver applicant’s non-vehicular criminal history before entrusting him with a sleeper-equipped truck, and it allowed the negligent hiring claim to proceed because breach and reasonable care were for the jury.


Malorney v. B & L Motor Freight, Inc., 146 Ill. App. 3d 265, 496 N.E.2d 1086 (Ill. App. Ct. 1986)