Landlord-Tenant Liability and Negligent Hiring Duties

Introduction and Case Facts

The ABC Apartment Company maintains an apartment complex and employs a manager to oversee the property. As part of those responsibilities, the manager has access to spare keys for all rental units in case of emergency. The manager misused this access by using a spare key to enter a tenant's apartment and rape her. It was subsequently determined that the manager had a criminal record that ABC Apartment Company never discovered at the time of hire. The tenant has sued ABC Apartment Company for both compensatory and punitive damages.

A landlord has an affirmative duty to maintain the safety and integrity of rental premises by exercising reasonable care. That duty includes compliance with applicable housing and real property codes and standards, as well as the exercise of reasonable care in protecting tenants from a wide variety of physical harms and monetary losses that are reasonably foreseeable (Feliu & Johnson 2002). Certain types of potential harm to tenants, while foreseeable, cannot be prevented through the exercise of reasonable care. Other types of potential harm are easily prevented in hindsight but were not discoverable prospectively except through means that would greatly exceed the duty of reasonable care owed by landlords.

Duty of Care in Landlord-Tenant Relationships

In the case of ABC Apartments, for example, the landlord could have subjected all applicants for the manager's position to rigorous, multi-tiered medical and psychological evaluations of the same type used in law enforcement applicant screening. However, that level of scrutiny exceeds what is reasonably required for apartment complex managers, although an armed managerial position would justify a higher duty of care than would otherwise apply.

The most significant element of the apartment manager's position — with respect to establishing what is and is not required by reasonable care — pertains to his access to keys for all rental units. At a minimum, the foreseeability that access to key banks or master keys could be problematic in the case of employees with criminal records for crimes relating to theft establishes a baseline for employer responsibility.

A preliminary criminal background check is a reasonable expectation when hiring apartment managers, given their access to tenants' units. Even a standard background check may fail to disclose all relevant information; whether a greater duty of care requires going further to confirm the apparent absence of negative entries depends on the nature of the position.

Scope of Pre-Employment Background Screening

ABC Apartment's failure to conduct a standard criminal background check of the complex manager constituted a violation of its duty of care owed to tenants. What is less easily established is exactly where this duty is satisfied without exceeding what reasonable care requires. For example, had a preliminary background investigation revealed no problematic information, the question becomes whether ABC was required to confirm that lack of information further — and likewise, whether a local records search suffices or whether a national records search is required.

ABC Apartment's duty of reasonable care also required investigation of any questionable or contradictory information, as well as further inquiry in the event that an applicant's resume omitted information that would ordinarily be expected. For example, if the manager-applicant's resume contained no employment history beyond a few years, a reasonable prospective employer should identify the applicant's background beyond what the applicant has furnished (Feliu & Johnson 2002).

Finally, in terms of establishing what level of inquiry reasonable care requires, it is possible for an employment applicant to have no criminal record but numerous civil cases on record evidencing violent propensity. Generally, records for civil judgments must be obtained individually from the state where they arose. Furthermore, civil claims that do not result in a finding against the defendant and criminal arrests that do not result in charges are not typically disclosed in standard information inquiries (Schmalleger 1997).