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Victim Sues Rapist’s Previous Employer Over Reference Form

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When Charles Richardson applied for work at Parke County Nursing Home in Rockville, Indiana, he gave the facility permission to contact his former employers for references. Mr. Richardson was working at the time for Lee Alan Bryan Health Care Facilities, and that facility’s administrator filled out the reference form. She indicated that Mr. Richardson had never experienced an injury on the job, that his attendance and punctuality was good, and that he would be eligible to be rehired. She did not mention that Mr. Richardson had engaged in improper sexual activity with residents at Lee Alan Bryant.

Parke County Nursing Home hired Mr. Richardson as a maintenance supervisor, and he began work there in 1994. Three years later he became a suspect in the apparent rape of one of the nursing home residents, a demented patient who exhibited pain when her abdomen was touched and later developed extensive bruising.

Mark Passmore, the patient’s son, filed a lawsuit against Parke County Nursing Home (where the incident occurred) and its parent company. During the course of depositions and discovery in that lawsuit, Mr. Passmore learned of the employment reference form filled out by Mr. Richardson’s former employer. Arguing that Lee Alan Bryant’s administrator must have been either negligently or intentionally misleading when she completed the reference form, Mr. Passmore amended his complaint to include Mr. Richardson’s prior employer as a defendant.

Does an employer (or former employer) have an enforceable duty to accurately report an employee’s work history when approached by a prospective new employer? That was the question posed by Mr. Passmore’s lawsuit. Lee Alan Bryant, the former employer, argued that there was no duty to fully or accurately report information on an employee reference form, at least under the state law of Indiana.

Mr. Passmore pointed to one of the well-recognized treatises on tort law, which described a cause of action for a conscious or negligent misrepresentation which involves a risk of physical harm. That, he argued, was precisely the case with the hiring of Mr. Richardson and the injury to his mother. If Lee Alan Bryant had disclosed the possibility that Mr. Richardson had sexual contact with its residents Parke County Nursing Home would not have hired him, and there would have been no rape.

The trial judge disagreed with Mr. Passmore and his lawsuit was dismissed. The Indiana Court of Appeals upheld the trial judge’s ruling, confirming dismissal of the lawsuit. The appellate court acknowledged that the legal authorities seemed to recognize a cause of action for negligent or conscious misrepresentation, but declined to allow it in Indiana. Passmore v. Lee Alan Bryant Health Care Facilities, Inc., March 27, 2002.

Arizona courts have not confronted the precise question involved in Mr. Passmore’s case. Arizona does tend to defer to the treatise on which he relied, however, so the result might well be different in Arizona.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

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Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.