Applying Virginia law, the Court affirmed dismissal of the respondeat superior claim, finding that the district court correctly ruled that physically attacking someone is outside the scope of a janitor's duties.
The plaintiff's negligent hiring and retention claims were wrongfully dismissed, however, because the facts showed that Defender failed to conduct a background check of the employee on three different occasions despite a contractual obligation to Virginia Tech to perform such a check. Also, a genuine issue of material fact existed as to whether Defender should have known or discovered the employee's dangerous propensities as a result of a protective order issued eleven months earlier. The 2-1 majority placed emphasis on expert testimony proffered by the plaintiff that a background check would have indicated the existence of the protective order resulting from a criminal complaint.
Judge Widener would have affirmed the entire decision. In his dissent, he makes two good points. First, prevailing Virginia law does not obligate an employer who has asked about criminal history and been told that none exists and who has no reason to suspect a criminal record to investigate a prior criminal record "in the exercise of reasonable care."
Second, the Judge found that the temporary nature of a protective order (6 months) makes it unlikely to be discovered in an ordinary background check. Adding to the difficulty in this case was the fact that the protective order was issued between stints of employment, and it was not issued in the attacker's county of residence. Judge Widener concluded that
[t]he upshot of the majority decision is that we are engrafting on Virginia law a requirement that in each case of employment a prospective employer must search for even unsuccessful misdemeanor prosecutions in the records of the courts not of record of the county of residence of the applicant, here Giles County, although not the same as the place of employment, here Montgomery County. In default of such a search we hold the employer may be found negligent. In my opinion this is an unreasonable burden to place on employers. Far worse is the disqualification from employment placed on youth by our decision.