## Facts

- Mary Smith hired Orkin Exterminating Co., Inc. (Orkin) to provide extermination services in her home in Louisiana.
- Orkin sent its employee, Vincent Johnson, to perform spraying services at Smith’s residence.
- While working inside the home, Johnson formed a plan to return and sexually assault Smith, and he created an entry point for his later return by leaving a window accessible.
- Johnson returned to the home shortly afterward and raped Smith, causing personal injuries.
- Smith sued Orkin in negligence for damages arising from the sexual assault. (Although Johnson was originally named, Smith did not pursue her claims against him; judgment was rendered only against Orkin.)
- Orkin had adopted security measures for employees who entered customers’ homes, including a mandatory polygraph examination as part of initial hiring and a yearly polygraph as an ongoing security monitor.
- Before Orkin hired Johnson in 1977, he was required to pass Orkin’s pre-employment polygraph and did so.
- Orkin administered a yearly polygraph to Johnson in February 1982 and allowed him to continue working in customers’ homes after he passed.
- Before that 1982 yearly polygraph, Johnson had been arrested for burglary and had raped another Orkin customer.
- The pre-employment polygraph included questions focused on an applicant’s criminal history, but the yearly polygraph did not meaningfully inquire into recent criminal conduct; only a small portion of the yearly questions addressed employee interactions with customers, with most questions aimed at protecting Orkin rather than customer safety.
- After a bench trial, the trial court found Orkin liable, concluding that but for Orkin’s negligent administration and design of its yearly polygraph program, Smith would not have been raped.
- Orkin appealed to the Louisiana Court of Appeal, First Circuit.

## Issues

1. Whether Orkin, as a service provider whose employees enter customers’ homes, owed Smith a duty to use reasonable care in screening and monitoring employees to protect customers from foreseeable criminal acts by those employees.
2. Whether Orkin breached that duty by negligently designing and administering its yearly polygraph program so that an employee using his job to victimize customers could still pass and keep access to customers’ homes.
3. Whether Johnson’s intentional criminal act was within the scope of the risk created by Orkin’s negligent screening and monitoring, such that Orkin’s negligence was a legal cause of Smith’s injuries.

## Decision

- The Louisiana Court of Appeal, First Circuit affirmed the trial court’s judgment.
- The court treated the matter as an ordinary negligence case analyzed under Louisiana’s duty-risk framework.
- The court held that Orkin owed a duty of reasonable care to customers when sending employees into homes, including reasonable measures to screen and monitor employees for customer safety.
- The court agreed Orkin breached its duty by implementing a yearly polygraph process that inadequately addressed customer-related misconduct and failed to meaningfully test for recent criminal behavior relevant to customer safety.
- The court upheld the finding of causation, accepting that Orkin’s negligent polygraph program allowed Johnson to continue entering customers’ homes when reasonable screening would have prevented that access.
- The court rejected the argument that Johnson’s intentional rape automatically cut off Orkin’s liability; the harm was within the category of risks that made Orkin’s screening negligence actionable.

## Legal Principles

- Louisiana negligence liability is evaluated using the duty-risk analysis: duty, breach, cause-in-fact, scope of duty (legal cause), and damages.
- A business that sends employees into customers’ homes must use reasonable care in hiring, screening, and monitoring employees to protect customers from reasonably foreseeable harms arising from that access.
- When an employer adopts a security screening program intended to protect customers (such as periodic polygraph monitoring), the employer must exercise reasonable care in designing and administering that program; a negligently structured program that provides false reassurance may support liability.
- An intervening intentional criminal act by an employee does not necessarily end legal causation when the employer’s negligence created or continued the opportunity for that act and the harm falls within the foreseeable risks associated with the employer’s conduct.
- Foreseeability and scope of duty may be shown by the nature of the service relationship (employees entering homes) and the employer’s recognition of the need for customer-protection measures.

## Conclusion

In Smith v. Orkin Exterminating Co., Inc., the Louisiana First Circuit affirmed a judgment holding Orkin liable for a customer’s injuries after an Orkin serviceman raped her, concluding that Orkin owed a duty of reasonable care to protect customers from foreseeable employee misconduct and breached that duty by negligently designing and administering its yearly polygraph screening program, with the resulting assault falling within the scope of the risk created by that negligence.


Smith v. Orkin Exterminating Co., Inc., 540 So. 2d 363 (1989)