{ "id": 1746948, "name": "Stacy KECK & Mike KECK v. AMERICAN EMPLOYMENT AGENCY, INC.", "name_abbreviation": "Keck v. American Employment Agency, Inc.", "decision_date": "1983-05-31", "docket_number": "83-75", "first_page": "294", "last_page": "304", "citations": [ { "type": "official", "cite": "279 Ark. 294" }, { "type": "parallel", "cite": "652 S.W.2d 2" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "261 Ark. 650", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678945 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/261/0650-01" ] }, { "cite": "445 A.2d 1141", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1982, "opinion_index": 0 }, { "cite": "89 N.J. 270", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 343018 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nj/89/0270-01" ] }, { "cite": "426 A.2d 521", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1981, "opinion_index": 0 }, { "cite": "177 N.J. Super. 279", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 882879 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nj-super/177/0279-01" ] }, { "cite": "382 So.2d 98", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9549405 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/so2d/382/0098-01" ] }, { "cite": "142 Cal. Rptr. 487", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1977, "opinion_index": 0 }, { "cite": "75 Cal. App. 3d 798", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2038455 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/cal-app-3d/75/0798-01" ] }, { "cite": "148 Cal. Rptr. 804", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1978, "opinion_index": 0 }, { "cite": "84 Cal. App. 3d 729", "category": "reporters:state", "reporter": "Cal. App. 3d", "year": 1978, "opinion_index": 0 }, { "cite": "86 S.W. 824", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1905, "opinion_index": 0 }, { "cite": "75 Ark. 30", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502509 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/75/0030-01" ] }, { "cite": "100 S.W.2d 965", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1937, "opinion_index": 0 }, { "cite": "193 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411160 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/ark/193/0413-01" ] }, { "cite": "202 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449984 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/ark/202/0576-01" ] }, { "cite": "31 S.W. 154", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1895, "opinion_index": 0 }, { "cite": "60 Ark. 545", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903699 ], "year": 1895, "opinion_index": 0, "case_paths": [ "/ark/60/0545-01" ] }, { "cite": "268 Ark. 192", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715487 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0192-01" ] }, { "cite": "238 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734220 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/238/0452-01" ] }, { "cite": "293 S.W. 1017", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1927, "opinion_index": 0 }, { "cite": "173 Ark. 885", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724958 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/ark/173/0885-01" ] }, { "cite": "270 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709293 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0340-01" ] }, { "cite": "273 Ark. 214", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718326 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/273/0214-01" ] }, { "cite": "272 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174869 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0001-01" ] }, { "cite": "273 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720717 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/273/0478-01" ] } ], "analysis": { "cardinality": 895, "char_count": 16838, "ocr_confidence": 0.805, "pagerank": { "raw": 7.190952556878731e-07, "percentile": 0.9674880659065451 }, "sha256": "11abbb430f27ce0efd31c5d529618df088ed304f88752054d017095f133ed8aa", "simhash": "1:8b646500085fd5c8", "word_count": 2921 }, "last_updated": "2023-07-14T22:44:56.229407+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Stacy KECK & Mike KECK v. AMERICAN EMPLOYMENT AGENCY, INC." ], "opinions": [ { "text": "Darrell Hickman, Justice.\nMrs. Keck, the appellant, sued the American Employment Agency, the appellee, for damages alleging that the agency was negligent in directing her to a prospective employer who abducted and raped her. At the conclusion of the appellants\u2019 case, the trial court directed a verdict in favor of the agency, finding no substantial evidence to support the claim of negligence. We reverse and remand.\nStacy Keck, the appellant, sought employment through the American Employment Agency, agreed to pay a fee, and was referred to Gregory \u2022 Devon Joiner for employment. Joiner, pretending to be an employer who was going to open a motorcycle repair shop, hired Mrs. Keck on Friday, July 13, 1979. She was to go to work Monday, but Joiner called and asked her to come to his office near 65th Street in Little Rock, on Saturday, July 14. There was nothing in the room except a telephone, ashtray, and a television set. She was hired to do routine office work, but was asked that day to sand a board to be used for a sign. Joiner cut a rope in pieces, telling her the rope would be used to spell out the name of the business. Instead he tied her up with the rope and forced her to perform oral sex on him after he had tried to have intercourse with her. He took her to a nearby wooded area, ostensibly to wait for a friend, and then forced her to walk over twently miles along a railroad track to Benton, Arkansas. They arrived in Benton Sunday morning, having walked most of the night. He held her in a motel room and raped her again, twice. He released her Thursday. Joiner was convicted of rape and sentenced to imprisonment.\nStacy and her husband, Mike Keck, sued the employment agency for damages, alleging that the agency was negligent in three ways: Failure to investigate the background of Joiner, failing to ascertain whether Joiner was involved in a legitimate business activity, and failure to warn Mrs. Keck that no background check had been completed on Joiner before offering him as an employer. The trial court found no substantial evidence of negligence.\nWe review the trial court\u2019s direction of a verdict for the agency by examining the evidence in a light most favorable to the losing party. Lindsey v. Watts, 273 Ark. 478, 621 S.W.2d 679 (1981); Miller v. Tipton, 272 Ark. 1, 611 S.W.2d 764 (1981). The evidence must be given all reasonable inferences and conclusions that would work in favor of the losing parties, the Kecks in this case. Dan Cowling and Associates, Inc. v. Board of Education of Clinton School District #1, 273 Ark. 214, 618 S.W.2d 158 (1981). Generally if there is any conflict in the evidence, or we find the evidence is not in dispute, but is in such a state that fair minded people might have different conclusions, then a jury question is presented, and a directed verdict will be overturned. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980).\nThe questions presented are fundamental ones in the law of negligence: What duty, if any, did the employment agency owe to Stacy Keck; was that duty breached; could the agency have reasonably foreseen such a breach would cause the injury that Mrs. Keck suffered; and, did the negligent act cause or was it a substantial factor in the cause of the injury? There is the additional question of whether the actions of Joiner were an intervening cause; i.e., was the agency bound to protect Mrs. Keck against such actions, and could it have foreseen the violence inflicted?\nThe question of what duty is owed is always a question of law and never one for the jury. W. PROSSER, LAW OF TORTS, \u00a7 45; Keller v. White, 173 Ark. 885, 293 S.W. 1017 (1927): Missouri Pacific Railroad Co. v. Harelson, 238 Ark. 452, 382 S.W.2d 900 (1964). The questions of foreseeability and causation may be ones of fact, depending on the case. W. PROSSER, supra; See Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980); See Brinkley Car Works & Manufacturing Co. v. Cooper, 60 Ark. 545, 31 S.W. 154 (1895). Usually, however, proximate causation is a question for the jury. Larson Machine, Inc. v. Wallace, supra. The trial court ruled that there was no substantial evidence of negligence and that ruling requires us to answer all the questions we have posed. There is no doubt that the agency owed Mrs. Keck some duty; indeed, it is conceded that the ageitcy was under a duty to exercise ordinary care in its relationship with Mrs. Keck. But the appellee was able to convince the trial court, and argues on appeal, that its duty was satisfied when it took an application blank from Joiner, and when he, in fact, said he was an employer. We disagree with that assessment for several reasons, but mainly on the facts in this particular case.\nFirst, there is an Arkansas statute that requires that employment agencies must have a \u201cbona fide job order\u201d before they refer any person for a job interview. Ark. Stat. Ann. \u00a7 8P-1023. While this statute may have been enacted to protect the public from fraudulent practices, it states at least the duty every employment agency has regarding its customers. And the facts in this case certainly raise a question of whether the agency used ordinary care in accepting this application by Joiner as \u201cbona fide,\u201d and whether the agency should have delved further into his background, or warned Mrs. Keck it was not verifying Joiner in any way because Mrs. Keck had a right to be naive in some respects and accept at face value an \u201cemployer\u201d recommended to her.\nJoiner merely called the agency and an order was filled out. The job counselor, Mrs. Jones, who was acquainted with Mrs. Keck, called her on Friday and asked her to come right in. Mrs. Keck asked if she could come in Monday, and was told \u201cNo, he\u2019s got to have somebody today,\u201d and \u201cHe\u2019s willing to pay half the fee.\u201d The fee was $300.00 in this case. Mrs. Keck said the counselor was enthusiastic about the job possibility, thinking that Mrs. Keck would like the job. Joiner was called and asked to come in that same time, and when he showed up his appearance, according to Mrs. Jones, was \u201cbad.\u201d Mrs. Keck said Mrs. Crowell, another counselor, told her that she was shocked at the way Joiner was dressed. He had on blue jeans and a T-shirt with the word \u201cbullshirt\u201d on it, had long hair and a beard, and was evidently unkempt. Mrs. Jones testified that he looked \u201cbad\u201d and that she and Mrs. Crowell told Mrs. Keck, \u201cHey, don\u2019t rush into this. Go home and think it over. \u201d Mrs. Jones said, \u201cWe [she and Mrs. Crowell] encouraged her, wait, go over there Monday, think it over the weekend.\u201d This is entirely inconsistent with Mrs. Keck\u2019s statement that she was encouraged to take the job and received no warning or advice whatsoever for caution.\nThe employment agency made no check at all on Joiner, and insists it owed no duty to do so. No references of any kind were asked for. If it had it would have learned Joiner did not have an office or repair shop when he called; he later rented an office Friday, one hour after he had talked to Mrs. Keck, in a one-story building containing a row of several offices, which was just a room, certainly not suitable for a motorcycle repair shop. A check could have shown that Joiner was living in what was described by an investigating officer as a \u201cflop house;\u201d a dirty run down house where Joiner lived with four others. In summary, the agency did nothing except produce Joiner and accepted at face value his claim of being an \u201cemployer.\u201d It insists that was the extent of its duty.\nIf the agency could not have foreseen any risk in referring Mrs. Keck to Joiner, it was not negligent because negligence cannot be predicated on a failure to anticipate the unforeseen. As Prosser puts the question:\n[It] is one of negligence and the extent of obligation: whether the defendant\u2019s responsibility extends to such interventions, which are foreign to the risk he has created. It is best stated as a problem of duty to protect the plaintiff [Mrs. Keck] against such an intervening cause. A decision that the defendant\u2019s [agency] conduct is not the \u2018proximate cause\u2019 of the result means only that he has not been negligent at all, or that his negligence, if any, does not cover such a risk. The element of shifting responsibility frequently enters. PROSSER, supra \u00a7 44.\nUnder the circumstances we cannot say as a matter of law the agency fulfilled its duty. An agency exercising ordinary care would have been put on notice something was suspicious about Joiner and his search for an immediate female employee. Indeed, Mrs. Jones\u2019 testimony supports this, when she says she cautioned Mrs. Keck to think it over and not go over until Monday. And twice she said that she was concerned about Mrs. Keck because of Joiner\u2019s appearance. Mrs. Jones testified that she had Joiner wait in Mrs. Crowell\u2019s office, rather than the reception area, because of his appearance. In fact she admitted that she had hidden Joiner in Mrs. Crowell\u2019s office.\nOne is ordinarily not liable for the acts of another unless a special relationship exists between the two such as master /servant or parent/child. H. L. Wilson Lumber Co. v. Koen, 202 Ark. 576, 151 S.W.2d 681 (1941); Watts v. Safeway Cab & Storage Co., 193 Ark. 413, 100 S.W.2d 965 (1937); See St. Louis & San Francisco Railroad Co. v. McFall, 75 Ark. 30, 86 S.W. 824 (1905).\nWe believe that a cause of action for negligence against the employment agency was properly stated and was based on the agency\u2019s duty of care which arose out of its contractual relationship with Stacy Keck, its ability to foresee some danger to her, and because it had some degree of control over the employers it made available. This control could have been exercised by making further checks on Joiner. See Duarte v. State, 84 Cal. App. 3d 729, 148 Cal. Rptr. 804 (1978). The employment agency created its relationship with Mrs. Keck by offering its services and thereby put itself in the position of owing a duty to her; and that duty in this case went beyond merely producing a man who claimed to be an employer.\nThe Restatement of Torts recognizes by two rules that simply because a third person commits a crime, that does not always exonerate one who created the situation which allowed the crime to occur. RESTATEMENT (SECOND) OF TORTS \u00a7 448 reads:\nIntentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor\u2019s Negligence.\nThe act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor\u2019s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. (Emphasis added.)\nRESTATEMENT (SECOND) OF TORTS \u00a7 449 reads:\nTortious or Criminal Acts the Probability of Which Makes Actor\u2019s Conduct Negligent.\nIf the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.\nSpecifically, where a victim of a rape can show that a defendant who owed some duty to the victim, breached that duty, and could foresee that the breach might result in injury to the victim, and that breach was a significant factor in a rape, then a jury question of negligence exists. In other words, such cases should not be automatically dismissed. In O\u2019Hara v. Western Seven Trees Corp. Intercoast, 75 Cal. App. 3d 798,142 Cal. Rptr. 487 (1977), a woman was raped in her apartment and she sued the landlord and rental agent for failing to take reasonable steps to protect her. The trial court sustained the defendant\u2019s demurrer and dismissed the action. On appeal, the case was reversed holding that the plaintiff had a cause of action. See also Holley v. Mt. Zion Terrace Apts., 382 So.2d 98 (Fla. App. 1980).\nIn Butler v. Acme Markets, Inc., 177 N.J. Super. 279, 426 A.2d 521 (1981), aff\u2019d 89 N.J. 270, 445 A.2d 1141 (1982), a woman who was assaulted in a supermarket parking lot, sued the store, and received a jury verdict, but the trial judge granted the defendant\u2019s motion for a judgment notwithstanding the verdict. On appeal, the judge\u2019s action was reversed, the court finding that liability for criminal attacks may be imposed where the harm is foreseeable and a reasonable person would have taken precautions against it.\nIn Duarte v. State, supra, a student was raped in a university residence hall and sued the university. The university\u2019s demurrer was sustained. On appeal the court reversed, holding that a cause of action was stated based on the duty of the university to anticipate the danger.\nOf course, the Restatement of Torts and the cases cited do not demand a finding that the agency\u2019s action in this case was negligence which was a significant cause of the rape. But what those authorities do indicate is that such situations can state a cause of action and may present a question for the jury.\nA jury question is presented... \u201cIn any case where there might be reasonable difference of opinions as to the foreseeability of a particular risk, the reasonableness of the defendant\u2019s conduct with regard to it, or the normal character of an intervening cause. W. PROSSER, supra, p. 290. This description fits exactly the facts in this case.\nWe are convinced that reasonable minds could disagree about whether the agency in this case should have acted differently, and whether it might have foreseen some possible injury to Mrs. Keck from this unkempt person who said he was an employer. We cannot say, as a matter of law, that reasonable minds could not find that the agency personnel could have foreseen some harm would result to her. Certainly the agency owed Mrs. Keck some duty to either check on Joiner further, warn her that no check had been made, or reject him as an employer. This is borne out by testimony by employees of the agency. Mrs. Jones claims she told Mrs. Keck she had better check the location and everything out. This is clearly an attempt by the agency to shift the burden it owed to Mrs. Keck.\nNor can we say, as a matter of law, that the agency\u2019s possible negligence was not a substantial factor in causing Mrs. Keck\u2019s injuries. We live in a time of locked doors, and other precautions that must be taken against the threat of rape. Rape is an all too common occurrence.\nWhether Mrs. Keck was negligent was, of course, a jury question as well. St. Louis-Southwestern Railway Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1961).\nThe appellant offered a deposition of an employee of another employment agency that Joiner applied to and they refused to list him as an employer because he sounded \u201cfishy.\u201d\nIt is unclear why the deposition of the other agency was excluded. The briefs state that it was because of relevancy but they fail to abstract the portions of the record where such a ruling was made. The record reflects that after an argument pertaining to whether the deposition was admissible due to Mrs. Beane\u2019s unavailability, the court ruled that it was admissible. Mrs. Keck had introduced evidence that she had subpoenaed Mrs. Beane before trial. Then the employment agency made a relevancy objection and the court said that he would have to read the deposition. The briefs indicate that no further mention is made of the deposition until prior to the trial judge\u2019s ruling that there was no substantial evidence of negligence, when the judge said, \u201cLet\u2019s go ahead and proffer the deposition and have it marked for evidence.\u201d\nWe infer from that, as the briefs contend, that the trial court excluded the deposition because of relevance. Whether the deposition is admissible is dependent on Ark. Stat. Ann. \u00a7 28-1001, Rules 401 and 403 (Repl. 1979). We find that the testimony in the deposition is relevant evidence in that it is evidence of what another employment agency did in a like situation. Before admitting the deposition, however, the trial judge should caution the jury that it should consider the testimony only as evidence of what may be reasonable conduct and not as evidence of the legal standard of conduct. See 2 Wigmore, EVIDENCE \u00a7 261 (3d ed. 1940). Initially, of course, the court must determine the admissibility of the deposition under Ark. Stat. Ann. \u00a7 28-348 (d) (Repl. 19079).\nReversed and remanded.", "type": "majority", "author": "Darrell Hickman, Justice." } ], "attorneys": [ "McMath Law Firm, P.A., for appellants.", "Laser, Sharp, Haley, Young \u00bfr Huckabay, P.A., for appellee." ], "corrections": "", "head_matter": "Stacy KECK & Mike KECK v. AMERICAN EMPLOYMENT AGENCY, INC.\n83-75\n652 S.W.2d 2\nSupreme Court of Arkansas\nOpinion delivered May 31, 1983\nMcMath Law Firm, P.A., for appellants.\nLaser, Sharp, Haley, Young \u00bfr Huckabay, P.A., for appellee." }, "file_name": "0294-01", "first_page_order": 318, "last_page_order": 328 }