In a case alleging intentional tort and negligent hiring and retention, the Ohio Tenth District Court of Appeals held that the  employer was not liable when one employee attacked and assaulted a fellow employee at work. Weimerskirch v. Coakley, Case No. 07AP-952, (10th Dist. Franklin County, April 8, 2008). 

David Coakley worked as a mechanic for AMF Bowling Inc. On June 6, 2004, Gary Weimerskirch, an assistant manager at AMF, walked in on Coakley and his girlfriend just after they, apparently, had sexual relations. Unexpectedly, Coakley told Weimerskirch that he quit and  began to collect his personal effects from the work area. As Coakley took his belongings to his vehicle, which was parked behind the building, he spontaneously grabbed a two-by-four, ran toward Weimerskirch, and struck him on the head with the board. Weimerskirch filed a lawsuit against Coakley personally, and also against AMF for employer intentional tort and negligent hiring and retention. The trial court granted summary judgment for AMF, and Weimerskirch filed an appeal.

In Ohio, an employer will only be liable for a claim of intentional tort if the employee proves: (1) the employer’s knowledge of the existence of a dangerous condition; (2) the employer’s knowledge that, if the employee is subjected to this dangerous condition, the employee is substantially certain to be harmed; and (3) that the employer knowingly required the employee to continue to perform in a manner that subjected him to the dangerous condition. (The Ohio General Assembly recently clarified this standard, as noted earlier on this blog, but that clarification occurred after this case was filed and does not apply.)

In this case, there was no evidence to show that AMF was substantially certain that Coakley would attack Weimerskirch as he did on the night of June 6, 2004. Although Coakley’s criminal record included one misdemeanor assault arrest, there was no evidence that AMF’s management had any knowledge of Coakley’s past activities. AMF’s general manager, James Shaw, admitted that he did not conduct a criminal background check on Coakley before hiring him.  Because Coakley’s record lacked evidence that he is generally a violent individual, however, the lack of a background check was found to be immaterial and harmless. 

This case highlights the dual nature of employee criminal background checks. On the one hand, as illustrated in this case, the presence or absence of a criminal background check may have no impact on employer liability because the background check contains insufficient information to put the employer on notice that the employee poses a specific danger. On the other hand, if a background check would have revealed violent or dishonest tendencies and the employee’s job puts him or her in contact with co-workers or the public, the decision not to conduct a criminal background check could weigh in favor of employer liability if the employee engages in related misconduct on the job. The best approach? Employers should weigh the competing risks and benefits of conducting criminal background checks to determine what approach makes the most sense given their unique circumstances.