Malorney v. B & L Motor Freight, Inc.

496 N.E.2d 1086 (1986)

Facts

Harbour applied for a position of over-the-road driver with D. Harbour was questioned as to whether he had any vehicular offenses or other criminal convictions. His response to the vehicular question was verified by F; however, his negative answer regarding criminal convictions was not. Harbour had a history of convictions for violent sex-related crimes and had been arrested the year prior to his employment with D for aggravated sodomy of two teenage hitchhikers while driving an over-the-road truck for another employer. Upon being hired, D was given written instructions and regulations, including a prohibition against picking up hitchhikers. On January 24, 1978, at an Indiana toll-road plaza, Harbour picked up P, a 17-year-old hitchhiker. In the sleeping compartment of his truck, he repeatedly raped and sexually assaulted, viciously beat her, and threatened to kill her. P notified police. Harbour was arrested, convicted, and sentenced to 50 years' with no parole. P sued D for recklessness and wilful and wanton misconduct in negligently hiring Harbour as an over-the-road driver without adequately checking his background and providing him a vehicle with a sleeping compartment. P seeks compensatory and punitive damages. D filed a motion for summary judgment contending that it had no duty to verify Harbour's negative response to the question regarding criminal convictions. The trial court found that (1)Harbour was hired as an over-the-road driver and furnished with a truck equipped with sleeping quarters; (2) D instructed Harbour not to pick up hitchhikers; and (3) it is common knowledge that hitchhikers frequent toll plazas which would show that D knew drivers are prone to give rides to hitchhikers. The court concluded that these facts show that D had a duty to check Harbour's criminal background and certified the issue for interlocutory appeal. D argues that it had no duty to investigate Harbour's nonvehicular criminal background nor to verify his denial because it is not foreseeable that drives would use the truck to pick up and sexually assault a hitchhiker.