Parol Evidence Rule – Negligent Hiring – Duty

Motley v. Express Services, Inc., et al., [Ms. SC-2022-0977, June 23, 2023] __ So. 3d __ (Ala. 2023). The Court (Mitchell, J.; Parker, C.J., and Shaw, Wise, Bryan, Stewart, and Cook, JJ., concur; Sellers and Mendheim, JJ., concur in the result) affirms the Montgomery Circuit Court’s summary judgment dismissing Earnest H. Motley’s claims against Express Services, Inc. (“Express”), a temporary employment provider. While working for Capital Equipment, Inc. (“Capital”), Motley was struck in the head with a shovel by Timothy Gilbert. Motley was supervising Gilbert, a temporary employee who had been sent to work for Capital by Express. Ms. *3.

Motley alleged that Express is liable because it failed to conduct a background check which would have uncovered Gilbert’s violent propensities. This claim rested on the premise that Express had “orally agreed that Express would conduct a background check before sending any candidate to work for Capital.” Ms. *7. The Court rejects this claim because the Staffing Agreement was an integrated written contract and “‘absent some evidence of fraud, mistake, or illegality, a party to an unambiguous written contract cannot offer parol, or extrinsic, evidence of prior or contemporaneous oral agreements to change, alter, or contradict the terms of the contract.’ Environmental Sys., Inc. v. Rexham Corp., 624 So. 2d 1379, 1381 (Ala. 1993).” Ms. **7-8.

The Court also holds that “[w]hether a writing is integrated is a question of law, Hurst v. Nichols Research Corp., 621 So. 2d 964, 967 (Ala. 1993),” and that “Motley offers nothing to demonstrate that the Staffing Agreement lacks integration, other than to make a conclusory assertion along those lines.” Ms. **8-9.

The Court explains that a claim of negligent hiring, training, or supervision “is established by showing that (1) the employer hired, trained, or supervised an employee with an incompetency; (2) the employer knew of the incompetency or would have learned of it by exercising due care; and (3) the employee caused the plaintiff harm due to the incompetency.” Ms. *10.

The Court reiterates liability depends upon “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.’” Ms. *11, quoting Lane v. Central Bank of Alabama, N.A., 425 So. 2d 1098, 1100 (Ala. 1983). The Court rejects Motley’s argument that “Express was required to conduct due and proper diligence by (1) conducting a background check on Gilbert and (2) following its own hiring procedures” because “Motley fails to show that Express had a duty to perform either action.” Ibid. The Court accordingly holds that lack of duty is fatal to all of Motley’s negligence, wantonness and nuisance theories. Ms. **16-18.

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