THE STATE OF
In The Court of Appeals
Sharon Doe, as Special Conservator for her daughter, Audra Doe, Appellant,
ATC, Inc., Transportation Management Services, Inc., and Multisystems, Inc., Respondents.
Sharon Doe, as Special Conservator for her daughter, Audra Doe, Appellant,
Calvin Murray, Respondent.
John C. Few, Circuit Court Judge
Opinion No. 4063
Heard November 8, 2005 – Filed December 19, 2005
John Robert Peace, of
Greenville, for Appellant.
Maureen Z. White, of
Greenville and Michael H. Montgomery, of Columbia, for Respondents.
KITTREDGE, J.: This is an appeal from the granting of a directed verdict in a negligent retention action. The dispositive issue, as narrowly framed in the trial court, is whether a jury question existed as a result of the employer’s decision not to fire an employee based on the report of a single incident of an inappropriate sexual advance toward a fellow employee. We agree with the trial court that a jury question was not created by the employer’s decision to retain the employee. We affirm.
Appellant Sharon Doe is the mother of Audra Doe, a disabled adult female. Audra rode a Medicaid bus to physical therapy sessions and to
Doe filed separate lawsuits on behalf of Audra against Murray and ATC. These suits were consolidated and tried together. Doe’s claim against ATC was based on a negligent retention theory.
The trial court directed a verdict in favor of ATC. The action against
Moss testified that several months before the incidents involving Audra,
Moss reported the incident to her supervisor, Hattie Wright. Moss, however, told Wright not to write up a formal complaint against
Wright ignored Moss’s wishes and pursued the matter the same day, initially by speaking with
It is undisputed that ATC—prior to Doe’s complaint on behalf of Audra—had no other knowledge of inappropriate conduct of any kind by
After Doe filed her complaint, Williams and Wright notified Melville Padgett, the general manager for ATC’s Medicaid properties in
The Directed Verdict Motion
ATC moved for a directed verdict, and the trial court engaged in a lengthy discussion with Doe’s counsel in an effort to determine the precise allegation of negligence against ATC. Specifically, it was not clear what Doe claimed ATC should have done differently following the reported incident involving Moss. The answer eventually surfaced:
The Court: So they would have to have fired him [following the report by Moss]?
[Doe’s counsel]: Yes, sir.
The trial court, as noted, directed a verdict in favor of ATC.
STANDARD OF REVIEW
In reviewing a motion for directed verdict, the appellate court applies the same standard as the circuit court. Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000). The court must view the evidence and the inferences that can reasonably be drawn in the light most favorable to the nonmoving party. Sabb v. South Carolina State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002). If the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created and the motion should be denied.
Doe argues that ATC negligently retained
We have canvassed the record and conclude that ATC’s decision not to fire
c. Retention in employment of servants known to misconduct themselves. There may be circumstances in which the only effective control which the master can exercise over the conduct of his servant is to discharge the servant. Therefore the master may subject himself to liability under the rule stated in this Section by retaining in his employment servants who, to his knowledge, are in the habit of misconducting themselves in a manner dangerous to others.
Our review of negligent hiring and retention cases from other jurisdictions leads us to conclude that such cases generally turn on two fundamental elements—knowledge of the employer and foreseeability of harm to third parties. Di Cosala v. Kay, 450 A.2d 508, 516 (N.J. 1982). These elements, from a factual perspective, are not necessarily mutually exclusive, as a fact bearing on one element may also impact resolution of the other element. From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused. Such factual considerations—especially questions related to proximate cause inherent in the concept of foreseeability—will ordinarily be determined by the factfinder, and not as a matter of law. Hoke v. May Dep’t Stores Co., 891 P.2d 686, 691 (Or. Ct. App. 1995); Gaines v. Monsanto Co., 655 S.W.2d 568, 571 (Mo. Ct. App. 1983). Nevertheless, the court should dispose of the matter on a dispositive motion when no reasonable factfinder could find the risk foreseeable or the employer’s conduct to have fallen below the acceptable standard. Hoke, 891 P.2d at 690; Reed v. Kelly, 37 S.W.3d 274, 278 (Mo. Ct. App. 2000). We believe Doe’s claim against ATC is properly resolved as a matter of law.
The standard, according to the Restatement section 317 comment c, is whether the employer knew the offending employee was “in the habit of misconducting [himself] in a manner dangerous to others.” Accordingly, many courts have recognized that a plaintiff must demonstrate some propensity, proclivity, or course of conduct sufficient to put the employer on notice of the possible danger to third parties. See e.g., Frye v. Am. Painting Co., 642 N.E.2d 995, 999 (Ind. Ct. App. 1994) (holding that an employer may be held negligent if it retains an employee it knew or should have known had a propensity for dangerous behavior); Alpharetta First United Methodist Church v. Stewart, 472 S.E.2d 532, 536 (Ga. Ct. App. 1996) (holding that an employer may not be held liable for negligent hiring or retention unless the plaintiff shows the employer knew or should have known of the employee’s dangerous propensities); Gomez v. City of New York, 758 N.Y.S.2d 298, 299 (N.Y. App. Div. 2003) (“[R]ecovery on a negligent hiring and retention theory requires a showing that the employer was on notice of the relevant tortious propensities of the wrongdoing employee.”).
Based on this requirement, some courts have dismissed negligent hiring and negligent retention claims when the claim rests on a single prior incident of misconduct. For example, in Sullivan v. St. Louis Station Assocs., 770 S.W.2d 352 (Mo. Ct. App. 1989), the court held that a single prior incident was insufficient as a matter of law to establish negligent retention. The Sullivan court noted that “the plaintiff must demonstrate that the employee had dangerous proclivities . . . which denotes a course of conduct rather than a single aberration of behavior.”
However, we do not view the “habit of misconducting” language in the Restatement as mandating multiple prior acts of misconduct for a negligent retention action to remain viable in
Turning to the case at hand, the prior alleged misconduct by
Doe’s laser-beam approach—
We find that the directed verdict for ATC was appropriate under the facts presented and the theory of liability advanced by Doe. A reasonable jury could not conclude, based on the incident involving Moss, that ATC knew or should have known that
STILWELL and WILLIAMS, JJ., concur.
 We adhere to the appropriate standard of review and thus view the facts in a light most favorable to Appellant, although the facts necessary for resolution of this appeal are largely undisputed.
 We have substituted the name Doe due to the nature of the allegations.
 The complaint alleged negligent supervision, but the case was tried as one of negligent retention.
 In Appellants’ Final Brief, Doe seeks to recast the case as one of negligent supervision, arguing that ATC was “on notice” about the incident with Moss and hence the need to “exercise control” over
 We decline Doe’s invitation to view Moss’s allegation in hindsight through the lens of