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Conversion - Respondeat Superior - Negligent Hiring and Supervision

Synergies3 Tec Services v. Corvo, et al., [Ms. 1170765, Aug. 21, 2020] __ So. 3d __ (Ala. 2020). In a plurality opinion, the Court (Stewart, J.; Parker, C.J., and Wise, J., concur; Bolin, J., concurs in part and concurs in the result in part; Sellers, J., concurs in the result) affirms in part and reverses in part the Baldwin Circuit Court’s judgment on a jury verdict on claims of conversion and negligent hiring and supervision. Plaintiffs Corvo and Bonds alleged that Castro and McLaughlin, employees of Synergies3 Tec Services LLC, an agent of DIRECTV, stole a 3-carat diamond ring and $160 from their master bedroom while installing DIRECTV in Plaintiffs’ home on Ono Island. The opinion rejects Synergies3 and DIRECTV’s argument that they were entitled to judgment as a matter of law on the conversion claim and explains

There was no evidence indicating that any individual, other than Castro, McLaughlin, Corvo, and Bonds, entered the bedroom where the diamond was kept. Corvo found McLaughlin in her bedroom where the diamond and cash were located with the door almost closed. After Castro and McLaughlin left the house, Corvo discovered that the diamond was missing from her engagement ring and that the prongs that held the diamond in place were bent and damaged. Corvo also discovered that $160 in cash was missing. Accordingly, Corvo and Bonds ‘presented substantial evidence creating a genuine dispute’ as to whether one of [Synergies3 or DIRECTV’s] employees took or carried away the property.

Ms. **18-19 (internal quotation marks omitted).

The opinion concludes, however, that Synergies3 and DIRECTV were not liable for conversion under the doctrine of respondeat superior because

Theft and conversion are a “marked and unusual deviation” from the business of Synergies3 and DIRECTV for which Castro and McLaughlin were in Corvo’s house – installing equipment for DIRECTV’s satellite television service. Furthermore, there was no evidence indicating that the theft or conversion was done for Synergies3’s or DIRECTV’s benefit or in furtherance of their interests. … Moreover, there is no evidence indicating thatSynergies3 or DIRECTV authorized or participated in theft and conversion or later ratified the conduct so as to give rise to any direct liability for theft or conversion.

Ms. **24-25 (internal citation omitted).

The Court affirms the $75,000 mental anguish award and $40,000 for the value of the ring on the negligent hiring and supervision claim. The opinion explains

The question in this case involves the liability of a business to a customer on the theory of negligent hiring, training, and supervision when an employee commits an intentional tort and/or criminal act. To confer liability on an employer for the negligent hiring, training, or supervision of an employee, the following principles are applicable.

“‘In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence.

This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. While such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of, it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant to leave it to the jury whether they would have come to his knowledge, had he exercised ordinary care.’”

Lane v. Central Bank of Alabama, N.A., 425 So. 2d 1098, 1100(Ala.1983) (quoting Thompson v. Havard, 285 Ala. 718, 723 (1970)).

Ms. **27-28.

The Court affirms the verdict for plaintiffs on negligent hiring and supervision because

Corvo and Bonds submitted substantial evidence creating a factual dispute as to whetherSynergies3 and DIRECTV should have performed a more thorough background check and thereby discovered Castro’s criminal history and whether it should have been foreseeable to Synergies3 or DIRECTV that Castro would steal from a customer during an installation. From that evidence, a jury could reasonably infer that Synergies3 and DIRECTV negligently hired, trained, and supervised Castro. Accordingly, the trial court did not err in denying Synergies3 and DIRECTV’s motion for a judgment as a matter of law as to Corvo and Bonds’s claim of negligent hiring, training, and supervision of Castro.

Ms. *32.

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