ORDER DENYING DEFENDANT GREYHOUND'S MOTION FOR PARTIAL SUMMARY JUDGMENT

DANIEL HOVLAND, Chief Judge, District

Before the Court is Defendant Greyhound Lines, Inc.'s (Greyhound) Motion for Partial Summary Judgment. Greyhound seeks summary judgment as to the Plaintiff's claims of vicarious liability, negligent hiring, and negligent supervision. This case was filed on August 15, 2002. Trial is scheduled for January 5, 2004. This motion was filed on November 3, 2003. For the reasons set forth below, the Court DENIES the motion.

I. BACKGROUND

On August 17, 2003, Holly Cromp traveled on a Greyhound bus from Fargo, North Dakota, to Dickinson, North Dakota. Cromp was 15-years old and was living in the Ruth Meiers Home in Grand Forks, a residential treatment facility for adolescents. Her legal custodian at the time was Stark County Social Services. Cromp had been adjudicated delinquent and had been removed from the custody of her aunt and legal guardian, Debra Cromp.

The driver of the Greyhound bus was the defendant Ronn Johnson, an employee of defendant Greyhound Lines, Inc. At a scheduled stop in Jamestown, North Dakota, Johnson and Cromp engaged in conversation. After the stop in Jamestown, Cromp took a seat near Johnson and the two continued to converse until the bus reached Steele, North Dakota. At Steele, Johnson was scheduled to go off duty for eight hours of rest as required by federal law covering commercial drivers. During this stop in Steele, it is alleged that Johnson lured Cromp into his room at the Lone Steer Motel under the guise of her needing a pass to reboard so she could proceed to Dickinson. The motel room was provided for Johnson by Greyhound Lines Inc. Johnson sexually assaulted Holly Cromp in the motel room.

On April 19, 2002, the defendant, Ronn Johnson pled guilty to Sexual Imposition in violation of N.D.C.C. § 12.1-20-04. Johnson was sentenced to ten years imprisonment with four years suspended. The assault was characterized as forcible rape in the complaint.

Johnson was hired by Greyhound in May of 1997. On his job application he denied any prior criminal history. Greyhound ran a criminal background check on Johnson covering the years 1987-1997 which revealed no criminal history. This background check did not reveal a 1980 conviction for criminal sexual conduct with a minor. During his employment with Greyhound there were several complaints received from passengers about Johnson concerning his behavior.

II. LEGAL ANALYSIS A. STANDARD OF REVIEW

It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir. 1999). A fact is "material" if it might effect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed.R.Civ.P. 56(e). A mere trace of evidence supporting the non-movant's position is insufficient. Instead, the facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

B. VICARIOUS LIABILITY AND SCOPE OF EMPLOYMENT

Greyhound contends that Johnson was not acting within the scope of his employment when he sexually assaulted Holly Cromp and, therefore, the Plaintiff's vicarious liability claim should be dismissed as a matter of law.

Vicarious liability, otherwise known as respondeat superior, is the legal principle by which an employer may be held liable for the tortious acts of an employee committed while the employee was acting within the scope of employment. Nelson v. Gillette, 571 N.W.2d 332, 334 (N.D. 1997). Vicarious liability exists because good public policy dictates that an employer or enterprise should bear the risk of a tort committed by a person acting within the scope of employment.

In Nelson v. Gillette, the North Dakota Supreme Court adopted the test set out in the Restatement (Second) of Agency § 228 for determining whether an employee was acting within the scope of his or her employment. The Restatement (Second) of Agency § 228 provides as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

In Nelson v. Gillette, a former client of a county social services agency sued the county to recover for sexual abuse by a social worker employed by the county. 571 N.W.2d 332, 333. The trial court dismissed the plaintiff's claims based on vicarious liability and negligent supervision. On appeal, the county argued that sexual contact could never be within the scope of one's employment as it is motivated by completely selfish interests. 371 N.W.2d 332, 335. The North Dakota Supreme Court rejected this argument and remanded the negligent supervision claim for trial. The dismissal of the vicarious liability claim was affirmed on other grounds. The Supreme Court noted that the sexual abuse would not have occurred but for the employment relationship and that the sexual abuse took place during business hours and at business-related locations.

This action is not the first time the Nelson v. Gillette case has been considered and addressed in federal court. In Enderle v. Trautman, et al., a minister at Olivet Lutheran Church in Fargo entered into sexual relations with a church member that he was "counseling". Enderle v. Trautman, 2001 WL 1820145 (D.N.D. 2001). Vicarious liability claims were made against the church and the synod. The trial court allowed such claims to proceed to trial after rejecting the argument on summary judgment that sex with parishioners could not be construed to further church business.

Nelson v. Gillette and Enderle v. Trautman are directly on point. The sexual assault in this case took place during a change of Greyhound bus drivers in Steele and just minutes after Johnson had clocked out. Johnson had engaged in a conversation with Holly Cromp while traveling as a passenger on the bus and prior to the stop in Steele to change drivers. The sexual assault occurred in a motel room provided to Johnson by Greyhound to comply with driver regulations mandating rest periods. It is alleged that Johnson lured Holly Cromp to his motel room by informing her that she needed a re-boarding pass to continue her journey to Dickinson. The contention is that the sexual assault would not have occurred but for the employment relationship between Johnson and Greyhound. See Nelson v. Gillette, 571 N.W.2d 332, 337. The Court will follow the lead of the North Dakota Supreme Court and find that summary judgment is inappropriate. The mandate of the North Dakota Supreme Court in Nelson v. Gillette controls and there are disputed issues of fact to be resolved at trial on the vicarious liability claims. There are factual issues in dispute as to whether the actions and conduct of Johnson were within the scope of employment or outside the scope of his employment with Greyhound.

C. NEGLIGENT HIRING

The plaintiff claims that Greyhound failed to adequately investigate Johnson's background and were negligent or at fault in hiring him. Greyhound denies this contention.

An employer has a duty to exercise reasonable care when hiring persons who, due to the nature of the job to be performed, may pose a risk of harm to others. McLean v. Kirby Co., 490 N.W.2d 229, 232 (N.D. 1992). In Kirby, the plaintiff sued after being raped in her apartment by vacuum cleaner salesman. Although the salesman was hired by an independent contractor, the issue of negligent hiring was allowed to proceed to trial. The Supreme Court concluded that factual issues existed as to whether Kirby exercised reasonable care in the recruitment and hiring of dealers for in home demonstrations. 490 N.W.2d 229, 242. The salesman hired had two previous assault convictions and two previous weapons convictions along with a pending sexual assault charge when he was hired. No background check was run before the salesman was hired. The North Dakota Supreme Court held that the exercise of reasonable care requires an employer, in light of the particular job requirements, to investigate a prospective employee's fitness and reliability prior to hiring. 490 N.W.2d at 237; citing Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983) (tenant raped in apartment by apartment manager). In Ponticas the Minnesota Supreme Court held that the owner of an apartment complex had a duty to conduct a reasonable investigation of an applicant before hiring him as an apartment manager and issuing him a passkey to all apartment units.

In this case, Greyhound had run a criminal background check on Johnson but the check only extended back to calendar year 1987. As a result, a 1980 conviction for sexually assaulting a minor was not discovered. Greyhound admits that "there is no question that knowledge of Johnson's prior conviction would have been a red flag to Greyhound, and may have eliminated him as a job candidate entirely." See Greyhound's Brief in Support of Motion for Partial summary Judgment, p. 15. It is clear that Greyhound was aware of the risks associated with the hiring of drivers with criminal backgrounds. This is evidenced by the application form which inquired as to any previous criminal history.

A factual dispute exists as to whether Greyhound's background check of Johnson was reasonable under the circumstances. This is clearly a factual issue for the jury to resolve at trial. As such, summary judgment is inappropriate.

D. NEGLIGENT SUPERVISION

Greyhound also contends that Johnson's sexual assault of Holly Cromp was not foreseeable and for this reason the negligent supervision claim should be dismissed.

An employer may be held directly liable for the employer's own negligence in supervising an employee. Nelson v. Gillette, 571 N.W.2d 332, 340 (N.D. 1997). As in any negligence case the plaintiff must prove that a duty existed, a breach of that duty, causation, and damages. Negligent supervision occurs when an employer fails to exercise ordinary care in supervising an employee and foreseeable misconduct by the employee harms a third person. Id.

An employers duty to supervise as set forth in the Restatement (Second) of Tort, § 317 and adopted by the North Dakota Supreme Court inNelson v. Gillette provides as follows:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.

The Court concludes that there are factual issues in dispute as to whether Greyhound exercised reasonable care in its supervision of Johnson in light of his history and performance while employed by Greyhound. Again, this Court will follow the lead of the North Dakota Supreme Court as enumerated in Nelson v. Gillette, 571 N.W.2d 332 (N.D. 1997). The Court declines to grant summary judgment on this claim.

III. CONCLUSION

For the reasons set forth above, Greyhound's Motion for Partial Summary Judgment (Docket No. 32) is DENIED.

IT IS SO ORDERED.