A Forsyth County jury found that Old Republic Home Protection’s hiring of Windham Heating and Air Conditioning did not lead to carbon monoxide poisoning death of Greensboro man. On November 14, 2008, two people were killed when a faulty furnace leaked carbon monoxide into their home. Old Republic hired Windham to fix the furnace prior to the deaths. The plaintiff alleged that Old Republic failed to conduct a proper background check of Windham. Windham had previously been placed on probation by the North Carolina Board of Examiners and Old Republic had received a customer complaint about Windham’s incompetence as recently as 2008.
Under North Carolina law an employer is presumed to have properly performed his duty in employing and retaining his workers. However, if an employer had actual or constructive knowledge that an employee is incompetent or unfit he may be deemed liable if that employee injures a third-party due to negligent employment or retention. Determining negligent employment or retention is a jury question.
The theory of negligent employment or retention is completely independent of an employer’s liability under the doctrine of respondent superior. The doctrine of respondent superior mandates that an employer is liable for any negligent act of an employee that occurs within the scope of employment. Respondent superior usually does not apply to independent contractors.
The plaintiff’s lawyers have already announced that they plan to appeal the verdict. Additionally, the family of the second person killed due to the same carbon monoxide leak has their case pending in the North Carolina Court of Appeals.