RALEIGH, N.C. (Legal Newsline) – A closely watched case that questions whether an employer can be held liable for a home health care aide stealing from elderly clients has gone for the plaintiffs.
The North Carolina Supreme Court on June 17 ruled against Health-Pro Home Care Services, finding Thomas and Teresa Keith adequately alleged it was negligent in hiring and retaining a woman named Deitra Clark who robbed them.
Among the groups that filed amicus briefs were the National Academy of Elder Law Attorneys, the North Carolina Advocates for Justice (the state’s trial lawyers organization), the North Carolina Association of Defense Attorneys and the Chamber Legal Institute.
“In this case, evidence concerning the falsities in Clark’s employment application, Health-Pro’s belief that she committed the prior thefts, and the particulars of her criminal background support the inference that Health-Pro knew or should have known of Clark’s incompetence for her assignment to the Keiths’ home,” the decision says.
“Health-Pro’s personal care aides served elderly and vulnerable adults and by the nature of their work gained information about their clients’ daily routine, personality, finances, and home and were not supervised while in the home.
“The Keiths, in fact, retained Health-Pro because Mr. Keith needed an at-home-care provider after his heart surgery and throughout their engagement of Health-Pro’s services were elderly and with serious health issues and limited mobility.”
Clark pleaded guilty to first-degree burglary and second-degree kidnapping after robbing the Keiths on Sept. 29, 2016. The ensuing lawsuit alleged Health-Pro hired her despite a lack of a driver’s license, her criminal record and a history of suspected prior thefts from their home.
In 2019, a jury reached a $750,000 verdict, but it was reversed by the Court of Appeals in 2020. That court concluded the Keiths needed to prove Clark was on duty when she robbed them in order to find Health-Pro liable.
The state Supreme Court's ruling reinstates that verdict and noted a defendant rarely has a legal duty to prevent the criminal acts of others but can be liable when its relationship with the criminal is close enough to make it “answerable civilly.”
The court had previously found in another case that employers owe their employees a duty to exercise reasonable care in the employment and retention of other employees.
Health-Pro admitted it didn’t run a criminal background check with the North Carolina Bureau of Investigation or any other approved entity when it came to Clark.
It used a different company that states on its website that its services can’t be used for employee/applicant background checks. It also failed to confirm Clark had a driver’s license, as she stated on her application.
“Health-Pro simply interviewed Clark after receiving her application and then hired her,” the decision says. “Nevertheless, Health-Pro represented on its website that it carefully screened caregivers by calling previous employers and performing criminal background checks.”
A proper background check would have found a host of charges including possession of drug paraphernalia, communicating threats and criminal contempt.
The company received a letter from Pitt County Child Support Enforcement that said she was not paying her child support obligations in May 2016. Money ($900 in rolled coins and $1,260 in cash) went missing from the Keiths’ home. One aide thought she saw Clark remove money from a dresser but was not positive.
The Keiths told Health-Pro about the missing money. The company said it would investigate but again did not run a criminal background check and didn’t file a police report. Clark was taken out of the home for a few weeks but was assigned back to it.
On Sept. 28, 2016, Clark and her accomplices invaded the Keiths’ home. One of them pointed a gun at Thomas Keith and ordered him to lay on the floor, then forced him to drive him to an ATM with his bank card.
The heist amounted to $1,000 from the ATM, about $500 in coins and a gun. Clark was identified by video footage of her putting the coins in a Coinstar machine.