WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court ruled that a construction company could not possibly be liable for a fire at a hotel caused by the company’s off duty employee’s dropped cigarette.

The March 29 opinion affirmed the Circuit Court of Logan County’s dismissal of a lawsuit filed by Evanston Insurance Company against Powell Construction Company. The circuit court dismissed the suit for “failure to state a claim.”

The underlying claim of the suit was a subrogation claim arising out of a fire at the Aracoma Hotel on the evening of Nov. 15, 2010. Robert Harris, an employee of Powell Construction Company who was staying at the hotel, dropped a cigarette in his room and started the fire.

Harris was a Kentucky resident at the time, but was working on a project in Logan and was required to spend the night in Logan as a consequence of his employment.

FN Hillside Corporation, the owner of Aracoma Hotel, had an insurance policy on the hotel with Evanston Insurance Company and the insurance company had paid “more than one million dollars” for the damages caused by the fire.

Evanston filed claims of respondeat superior and negligent hiring against Powell Construction alleging that Harris had “certain propensities that made it foreseeable that he posed a threat to others’ person or property based on his prior criminal record and his history as a recovering alcoholic and addict,” the opinion says.

In the circuit court’s order granting Powell Construction’s motion to dismiss, the court found that in order for Powell to be liable for Harris’ actions, Harris had to be an agent for the company at the time of the tort and the tort had to have been committed within the scope of his employment.

Although the court did find that Harris was an employee of the construction company at the time, it stated that “a construction worker’s act of smoking a cigarette in a hotel room at 7:00 p.m. on a day when he did not go to work” is not within the scope of his employment.

On the negligent hiring claim, the court found that Harris’ reported history of alcoholism, addiction and criminal behavior were not causes of the fire and that Harris’ background did not make the hotel fire a result that would have been foreseeable to the construction company when they hired him.

“On appeal, petitioner argues several errors,” the opinion states. “First, it argues that its stated claims were sufficient to withstand a motion to dismiss and thus the circuit court erred in granting Powell’s motion to dismiss. Petitioner relies on Rule 8 of the West Virginia Rules of Civil Procedure, and notes that this is a notice pleading jurisdiction.

“Second, it argues that the circuit court erred in finding that it failed to state facts to support its claim of respondeat superior. Petitioner argues that Harris was within the scope of his employment when the fire began because he was required to remain in Logan, West Virginia, as a condition of his employment.

“Third, petitioner argues that the circuit court erred in finding it failed to state a claim of negligent hiring that would entitle it to relief. Specifically, petitioner argues that in this case, respondent did nothing to investigate Harris’s background to determine his fitness for the job and that if it had, respondent would have known that Harris had the propensity to cause harm to others based on his criminal history and his history as an addict and alcoholic.

“Respondent Powell argues in favor of the circuit court’s dismissal, noting that Harris was not acting within the scope of his employment while smoking a cigarette in a hotel room.

“Respondent also argues that Harris was not at work and was at a place of his own choosing at the time of the fire. Respondent argues that the proper test is whether Harris was fit to work as a construction laborer and whether respondent could foresee Harris dropping a cigarette after work would result in a fire.

“Respondent further states that Harris’s reported history of alcoholism, addiction, or criminal behavior did not cause the fire, nor did petitioner allege that the fire was caused by any of these things in the complaint.

“Our review of the record reflects no error on behalf of the circuit court. Having reviewed the circuit court’s “Order” entered on January 18, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to these three assignments of error raised in this appeal... for the foregoing reasons, we affirm.”