In an effort to promote safety, both for their employees and the public at-large, many corporate employers adopt internal policies, many of which are more stringent than even the state and federal laws which govern these corporations. By doing so, have those employers potentially exposed themselves to liability which they might not otherwise have? The answer under Mississippi law appears to be "no"—as "[w]hile internal corporate policies are relevant when considering the reasonableness of an employee's actions in a given context…the existence of an internal policy [does not] create a legal duty to the general public where none previously existed." Smith v. City of McComb, 2017 U.S. Dist. LEXIS 136565, *21 (S.D. Miss 2017). A few cases illustrate this point.
Keen v. Miller Envtl. Group, Inc., 702 F.3d 239 (5th Cir. 2012)
In Keen, the defendants were contractors hired to clean up sites along the Mississippi Gulf Coast following the Deepwater Horizon rig explosion and oil spill. They hired an individual to pick up tar balls without conducting a criminal background check on that individual, despite having an internal policy which required such. Id. at 242. That individual subsequently allegedly raped a co-worker (the plaintiff, Keen) after offering to give her a ride home. Id. at 242-43. Keen sued for, among other things, negligent hiring and retention based on these facts, and the district court granted summary judgment for both contractor defendants. Id. at 243.
The Fifth Circuit affirmed. It found that in general there was no duty on employers under Mississippi law to conduct criminal background checks on prospective employees. Id. at 246. It noted that this conclusion was strengthened by the fact that the Mississippi legislature had mandated background checks on all new hires within specified fields, such as substitute teachers and health care facility employees. Id.
It then noted that the fact that the defendants had violated an internal policy in not conducting a background check was not dispositive evidence of a breach of duty but rather was "only one consideration among many" in making that determination. It ultimately affirmed the district court’s grant of summary judgment and stated that it was "not aware of any cases in which a party's violation of its own internal safety policies established a dangerous condition per se." Id. at 248-49.
Boyd Tunica, Inc. v. Premier Transportation Services, Inc., 30 So. 3d 1242 (Miss. Ct. App. 2010)
In Boyd, the Court of Appeals addressed a casino shuttle operator's noncompliance with its internal policy requiring seatbelt usage by passengers. Mississippi law did not require shuttle passengers to have worn seatbelts. In a suit between the casino and the shuttle operator, following an accident involving one of the shuttles, the casino alleged that the operator's non-compliance with its internal seatbelt policy was dispositive evidence of breach of duty. Id. at 1249.
The Court of Appeals rejected the casino's argument, explaining that "[i]t is counterintuitive to suggest that the law would impose liability on [the operator] for violating its seat-belt policy when, in this instance, the law does not require that [the operator] even provide seat-belt restraints." Id. at 1250. The court concluded that "the law in [Mississippi] is that a breach of one's internal policies may be considered in determining whether one has exercised the appropriate standard of care" but that "we see no reason why [the operator] should be punished for insisting that its passengers wear seat belts, even though they are not required by law to do so." Id. at 1253-54.
Parker v. Wal-Mart Stores, Inc., 464 F. App'x 224 (5th Cir. 2010)
In Parker, the Fifth Circuit affirmed the district court’s granting of summary judgment to Wal-Mart on plaintiff’s claims arising out of a trip and fall on a curb in Wal-Mart’s parking lot. The district court found that the curb was not unreasonably unsafe as a matter of law and granted summary judgment. Id. at 226. On appeal, the Parkers argued that Wal-Mart’s violation of its "Slip, Trip and Fall Guidelines" could provide an independent basis from which a jury could conclude that Wal-Mart breached the duty of care owed to invitees by not complying with its own internal policies. Id. at 227-228.
The Fifth Circuit disagreed and stated:
Under Mississippi law, breach of one's internal policies may be considered in determining whether one has exercised the appropriate standard of care. . . . [H]owever, internal policies are only one consideration among many in that determination. . . . [W]e are not aware of any cases in which a party's violation of its own internal safety policies established a dangerous condition per se.Id.
Based on the foregoing cases (and others cited therein which the author commends to the reader), it appears that the fact that an employer may have established and then violated one of its internal policies, in and of itself, is not proof of a breach of duty or negligence per se. The inquiry remains whether the employer and/or its employees breached any duty owed to the plaintiff under Mississippi law and whether that breach was the proximate cause of the plaintiff’s damages.