Liability concepts and legal frameworks

Liability

The manager of an apartment complex owned by ABC Apartment Company used a key to one of the apartments in the complex during his off-duty time to enter a tenant's apartment and rape the occupant. In an investigation that followed the event, it was discovered that the manager had a criminal record that ABC Apartment Company did not discover when it interviewed and hired the manager. The tenant sued ABC apartment Company for compensatory and punitive damages. Is ABC Apartment Company liable to the tenant?

In the United States there is a clear legal precedence for the development of civil or monetary lawsuits, almost regardless of culpability. In short the tenant has every right to bring suit against ABC Apartment Company, as a matter of course for compensatory and punitive damages. In an ethical/moral sense the ABC Apartment Company could be shown to have been negligent in their hiring process, not seeking an adequate criminal background check on an employee that would logically have 24-hour access (regardless of work hours) to other people's homes. Yet, regardless of the perceived moral or ethical responsibility on the part of the company there is little if any legal or civil liability to the tenant for damages and the tenant should seek restitution from the individual who committed the crime, unless ABC is found negligent by the court in adequately screening the employee. (Odom, 1995, p. 66)

In a legal sense there is limited if any liability on the part of ABC because they were unaware of the manager's past criminal history and therefore did not aide or abet the illegal acts he committed. Additionally, as of yet there is no regulation that demands that property management companies, or owners are required to do criminal background screenings on prospective employees, though it is of coarse highly recommended and some would consider it an industry standard. (DNA Diagnostic Testing Services "Background Checks" (http://www.alphagenetic.org/id16.html) Just as there are very few such regulations, with regard to any private company, as it is discretionary, except in cases where licensure, insurance or organization affiliation requires it. Though it would seem foolish in this day and age for a company not to do a background check, there is a clear sense that if the employee or potential employee marks "no" on an application that asks if the individual has any felonies or other legal events in his or her history the employer can assume that this is correct and then any culpability lies fully on the shoulders of the individual committing the crime and/or misleading the potential employer. Though there are some states, such as Minnesota, where anyone convicted of a felony cannot act as a property manager, if the felony is included in a long list of those considered dangerous in this instance, or if it is a lesser offenses do not bar him or her from employment, but again the responsibility lies on the individual to disclose this information to the company, unless the company has a written policy and procedure to do criminal background checks, and even then these are often discretionary, just as they are discretionary for tenancy (unless there is a public subsidy involved). It is unknown if ABC had such a policy, or the extent of the checks they do reached beyond a state check. The issue of offenses from other states and/or counties often clouds background check issues, as people who have relocated from other areas may have criminal records that are not easily available to individual employers. (DNA Diagnostic Testing Services "Background Checks" (http://www.alphagenetic.org/id16.html) criminal check of a new manager in North Carolina revealed several problems with law enforcement that were not reported on the employment application. These included child molestation and three counts of writing bad checks. ("Who's Minding the Store?," 1993, p. 13)

In this case the individual was screened as a condition of continued employment, as he was entering a new position, which does allow such. Though the company found out the information, before it was to late there is a sense that screening is becoming increasingly important, to remove liability from the employer in the event of illegal acts. In the same article a circumstance similar to the ABC situation occurred where a delivery driver entered the apartment of a person whom he had previously delivered to and the company was found negligent in their screening, and the victim was awarded damages, even though the employee was not on the clock when he committed the crime, he would not have known where the individual lived unless he had been the delivery driver. The burden of proof then lies on ABC to prove that the pre-employee screening process was adequate, to the court to make the individual seem like a viable employee candidate.

Though, ABC assumes little culpability in that the employee was not acting as an agent of ABC at the time the crime was committed and therefore was not in legitimate possession of the key, and can be further charged (if ABC wishes to do so) with other crimes associated with having the key to any tenant apartments during his off time. Though the plaintiff's attorney could argue (if such is the case) that managers frequently are in possession of tenant keys during off hours, and therefore the company was aware of accessibility, if not increased risk. (Loss Prevention Concepts Ltd. " Apartment Security Management: Consumer Tips" (http://www.lpconline.com/apartments2.html) if the crime had taken place, during the manager's scheduled work hours ABC would have greater culpability, as the employee would be assumed to have been acting as an agent of the company at the time, though most employment contracts remove culpability, on the part of the company once the individual, crosses a line and commits or intends to commit a crime. Though on the other hand if the crime committed had been illegal entry, (without legal notice of entry intent) to resolve a company matter, such as a non-emergency water leak the company would be liable for the offence. Subsequently if the individual had not used a company key to enter the apartment, but had instead broke and entering by conventional criminal methods ABC would be at even lesser risk of liability.

An issue that is frequently raised in such cases is that of aiding and abetting, i.e. when an individual or agent knowingly allows of assists in the commission of a crime, but does not actively participate in the crime.

A prime example of the confused usage of these terms may be found in United States v. Harris,(187) where the defendant was convicted of being an accomplice to an armed robbery and an assault with a deadly weapon of two workers at the defendant's place of employment. The workers were transporting cash for the payroll of the company when they were robbed. The evidence that led to the defendant's conviction was entirely circumstantial. Combining the evidence that the perpetrator used the defendant's gun, his car and his apartment, that he robbed the defendant's place of employment, and that the following day when the company paid the employees by check, the defendant was the only employee who did not pick up his check, the court found that the circumstantial evidence was sufficient to convict the defendant as an accomplice. The problem with the Harris decision is not its result, which is fair enough, but is its use of language. The court stated that "in order to uphold [defendant's] conviction for aiding and abetting the robbers, there must be evidence to support a finding of guilty knowledge"(188) and cited two cases for the proposition. The first, Bailey v. United States,(189) reflects the "intent" standard:[a] sine qua non-of aiding and abetting... is guilty participation by the accused.... In order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."(190) (Blakey & Roddy, 1996, p. 1368)

In the case of ABC, there has been no proof of criminal intent on the part of the company. The company was unaware of the criminal history of the apartment manager and did not anticipate that he would enter any apartment for unlawful purposes. Had there been any complaints to the company prior to this event, such as illegal entry or valid claims of entry by the manager to apartments when tenants were unaware of the entry, the company again would have greater liability.

Another point that is important in this situation, and such information is not given in the case study question, is the length of employment of the manager. As with any employee any kind of background check cannot be a condition of continued employment, it must be a part of a pre-employment screening. If the employee began employment with the company before any policy regarding background checks was instituted the company cannot then go back and do such checks on employees without due cause, such as valid complaints of illegal or suspicious activity on the part of the manger, as has been noted above. It is also a cloudy issue as to whether a company can terminate employment if an individual commits and is convicted of a crime while they are in the employment of the company. If such a crime were a low level crime, that could be thought of as a "gateway" crime such as possession of pornography, soliciting prostitution or prowling, but not a crime sufficient to be made public in any way that the company would easily find out there is a sense that the crime would likely not be reported to the employer and therefore would not cause any concern for increased risk to tenants. It is also interesting that is required that owners and managers of apartment complexes must inform tenants of increased risk, if such occurrences, or more serious ones occur in within the complex, but there does not seem to be a precedence for if the crime is committed by a property manager. (Loss Prevention Concepts Ltd. " Apartment Security Management: Consumer Tips" (http://www.lpconline.com/apartments2.html)

In a Delaware case, Kahn v Jupiter Western et al., a home invader and sexual predator gained entrance to a town house unit by kicking in the door of the apartment. The tenant claimed this easy access was obtained because the deadbolt was improperly installed and there was less than a one inch throw, which is the minimum standard. While this allegation concerning installation deficiency was, in fact, accurate, it proved to be irrelevant because the police photos of the damaged door frame clearly indicated that the deadbolt was not engaged at the time of the forced entry.

In a Michigan case, Neff v Harbor Towne Apartments, an intruder gained entrance to an apartment via a sliding glass door and sexually assaulted a tenant. This plaintiff readily admitted she hadn't used the secondary lock on this door since it was inconvenient and she felt the thumb latch should have been sufficient. In many other cases, plaintiffs have admitted that they did not utilize the deadbolts provided, but claimed they thought that the spring locks or key-in-knob locks should have been sufficient to prevent the entry of intruders, since they had not been advised otherwise. (Loss Prevention Concepts Ltd. " Apartment Security Management: Consumer Tips" (http://www.lpconline.com/apartments2.html)

As can be seen from the reading of both these case briefs the individual committing the crime was not an agent of the owner of the property, and therefore had little connection to liability. The point being made by the article is that secondary locking systems do not work if they are not engaged, nor do they work if the individual has a key to them, either way the individual entered the apartment illegally and should be culpable for damages. One suggestion is that owners and management companies explain secondary lock mechanisms to tenants and have them sign a consent to such knowledge. Another option for the owner is to install a deadbolt that does not have a key mechanism on the outside of the door, which bars entry by anyone, at least for a time. This is not logical for many people as legitimate members of the household then cannot access the house if someone inside has locked the deadbolt, and the owner or his agent cannot enter the property in the event of a legitimate emergency. If such a deadbolt had been applied to this tenants door, there would have been limited ability of the manager to enter her apartment, assuming she had used such a device.