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Gutzan v. Altair Airlines Inc.

decided: July 2, 1985.

ROSALIE GUTZAN
v.
ALTAIR AIRLINES, INC. AND ROMAC & ASSOCIATES V. JOSEPH W. FARMER, THE UNITED STATES OF AMERICA, ROMAC & ASSOCIATES; ROSALIE GUTZAN,



Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Misc. No. 83-0060.

Rosenn, Circuit Judge.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge.

The plaintiff, an employee of Altair Airlines (Altair) who had been raped by a fellow employee, Joseph W. Farmer, sued Altair for damages. She also named as a defendant the employment agency, Romac & Associates (Romac), which had referred Farmer to Altair. Before the trial, plaintiff reached a settlement with Altair, and the case was tried to a jury in the United States District Court for the Eastern District of Pennsylvania against the employment agency alone.*fn1

At trial, plaintiff requested jury instructions on negligent performance of services, negligent misrepresentation, reliance, and intervening negligent acts. The court refused to give the instructions as requested. The jury, which was not informed of the settlement between plaintiff and Altair, returned a verdict for plaintiff, and apportioned liability at ninety percent to Altair and ten percent to Romac. The district court granted Romac's motion for judgment notwithstanding the verdict on the ground that Romac had no duty to plaintiff at the time of her injury, and denied plaintiff's motion for a new trial. We reverse the entry of judgment notwithstanding the verdict.

I.

In September 1980, Joseph Farmer sought the services of Romac & Associates, a corporation engaged in the business of personnel consultation, and asked to speak with a counselor regarding a job as data programmer. He produced letters of reference from Wang Laboratories, Inc., and the United States Disciplinary Barracks in Ft. Leavenworth, Kansas.

Farmer told Romac counselor Ron Kovatis, who interviewed him, that he had been incarcerated in Fort Leavenworth because, while he was stationed in Germany, his German girlfriend had charged him with rape, and that it was a policy of military courts to appease foreign women who made such charges. The following month, Romac representative Robert Witkoski, told Robert Healy, Altair's data processing manager, that Romac had a candidate for a data processing position that Altair was trying to fill. Witkoski repeated to Healy the explanation Farmer gave of his criminal conviction, and sent Healy copies of Farmer's resume and letters of reference. Healy interviewed Farmer for the position of data processor in November 1980, and at the interview Farmer repeated to Healy the story of his criminal conviction that he had given Romac.

Prior to Farmer's interview at Altair, Kovatis telephoned Wang Laboratories and Fort Leavenworth to verify the authenticity of Farmer's references. No one at Romac inquired into the incident which led to Farmer's rape conviction, but Healy testified that Witkoski represented to him that Farmer's explanation had been verified by military officials.

After two more interviews, Altair hired Farmer in January 1981. Altair management decided that Farmer's prior conviction should not be divulged to Altair employees and to make no notations concerning the conviction on Farmer's personnel record.

During the course of Farmer's employment at Altair, two female employees complained to Healy about disturbing incidents involving Farmer. One incident involved Farmer lingering near a female executive after his work was done, until he was offered a ride home by an Altair vice-president. The second, more serious incident, involved a secretary, Nancy Rose Bohl, who testified that one morning in the summer of 1981, Farmer asked her to stop at his apartment to pick up some papers which he said her supervisor had requested. Farmer, who apparently had taken the day off because he claimed that he was not feeling well, had no papers ready when Ms. Bohl arrived. She testified that he was wearing a bathrobe when she entered his apartment and felt that he was staring at her. He kept her waiting a long time, and found some papers to give her only when she became frightened and told him her supervisor knew where she was and was waiting for her. When she returned to work, Bohl discovered that her boss had not expected to receive any papers from Farmer. She reported the incident to Healy, to Patrick Rodgers, an Altair vice-president, and to Bernard Alter, director of personnel, and was told by Rodgers to "keep quiet" about it.

In December 1981, Farmer raped plaintiff. Altair and Romac later discovered that Farmer's story regarding his prior conviction had been a fabrication, and that while in the Army he had been convicted of assaulting and raping a co-worker. Plaintiff filed suit for damages against Altair in January 1983, and in April 1983, Altair filed third-party complaints against Farmer, Romac, and the United States. Gutzan then amended her complaint to add Romac as a defendant. Plaintiff settled her claim against Altair before trial, but her suit against Romac proceeded to trial. The jury returned a verdict in her favor.*fn2

Romac filed a motion for judgment notwithstanding the verdict, which the district court granted. Gutzan then moved for a new trial and to set aside the judgment. The district ...


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