Cases to Consider:Malorney v. B&L Motor Freight, Inc. Malorney v. B&L Motor Freight, Inc., 146 Ill. App.3d 265, 496 N.E.2d 1086 (1986) Edward Harbour applied for a position of over-the-road driver with defendant B&L. On the employment application,Harbour was questioned as to whether he had any vehicular offenses or other criminal convictions. His response to thevehicular question was verified by B&L; however, his negative answer regarding criminal convictions was not verified byB&L. In fact, Harbour had a history of convictions for violent sex-related crimes and had been arrested the year prior to hisemployment with B&L for aggravated sodomy of two teenage hitchhikers while driving an over-the-road truck for anotheremployer. Upon being hired by B&L, Harbour was given written instructions and regulations, including a prohibition againstpicking up hitchhikers in a B&L truck. Subsequently, on January 24, 1978, at an Indiana toll-road plaza, Harbour picked up plaintiff Karen Malorney, a 17-year-oldhitchhiker. In the sleeping compartment of his truck, he repeatedly raped and sexually assaulted plaintiff, threatened to killher, and viciously beat her. After being released, plaintiff notified police. Harbour was arrested, convicted, and sentenced to50 years with no parole. Plaintiff's complaint charges defendant B&L with recklessness and willful and wanton misconduct in negligently hiringHarbour as an over-the-road driver without adequately checking his background and providing him a vehicle with asleeping compartment. Plaintiff seeks compensatory and punitive damages from B&L. Defendant B&L filed a motion for summary judgment contending that it had no duty to verify Harbour's negative responseto the question regarding criminal convictions. In denying defendant's motion, the trial court found that (1) Harbour washired as an over-the-road driver and furnished with a truck equipped with sleeping quarters; (2) B&L instructed Harbournot to pick up hitchhikers; and (3) it is common knowledge that hitchhikers frequent toll plazas which would show thatB&L knew drivers are prone to give rides to hitchhikers. The court concluded that these facts show that B&L had a duty tocheck Harbour's criminal background and certified the issue for interlocutory appeal. Defendant argues that it had no duty to investigate Harbour's nonvehicular criminal background nor to verify his denialthereof because of a lack of foreseeability that he would use the truck to pick up and sexually assault a hitchhiker. Toimpose such a duty would be against public policy by placing too great a burden on employers. On the other hand, plaintiffposits the argument that factual issues exist which preclude summary judgment and require a jury determination. We agreeand must affirm the trial court for the following reasons. Defendant correctly argues that the existence of a duty is aquestion of law to be determined by the court, rather than by the factfinder. However, once a duty has been found,  ...

1. Cases to Consider:Malorney v. B&L Motor Freight, Inc.
Malorney v. B&L Motor Freight, Inc., 146 Ill. App.3d 265, 496
N.E.2d 1086 (1986)
Edward Harbour applied for a position of over-the-
road driver with defendant B&L. On the employment applicatio
n,Harbour was questioned as to whether he had any vehicular of
fenses or other criminal convictions. His response to thevehicul
ar question was verified by B&L; however, his negative answer
regarding criminal convictions was not verified byB&L. In fact,
Harbour had a history of convictions for violent sex-
related crimes and had been arrested the year prior to hisemploy
ment with B&L for aggravated sodomy of two teenage hitchhike
rs while driving an over-the-
road truck for anotheremployer. Upon being hired by B&L, Har
bour was given written instructions and regulations, including a
prohibition againstpicking up hitchhikers in a B&L truck.
Subsequently, on January 24, 1978, at an Indiana toll-
road plaza, Harbour picked up plaintiff Karen Malorney, a 17-
year-
oldhitchhiker. In the sleeping compartment of his truck, he repe
atedly raped and sexually assaulted plaintiff, threatened to killh
er, and viciously beat her. After being released, plaintiff notifie
d police. Harbour was arrested, convicted, and sentenced to50 y
ears with no parole.
Plaintiff's complaint charges defendant B&L with recklessness a
nd willful and wanton misconduct in negligently hiringHarbour
as an over-the-
road driver without adequately checking his background and pro
viding him a vehicle with asleeping compartment. Plaintiff seek
s compensatory and punitive damages from B&L.
Defendant B&L filed a motion for summary judgment contendin
g that it had no duty to verify Harbour's negative responseto the
question regarding criminal convictions. In denying defendant's
motion, the trial court found that (1) Harbour washired as an ov

2. er-the-
road driver and furnished with a truck equipped with sleeping q
uarters; (2) B&L instructed Harbournot to pick up hitchhikers; a
nd (3) it is common knowledge that hitchhikers frequent toll pla
zas which would show thatB&L knew drivers are prone to give r
ides to hitchhikers. The court concluded that these facts show th
at B&L had a duty tocheck Harbour's criminal background and c
ertified the issue for interlocutory appeal.
Defendant argues that it had no duty to investigate Harbour's no
nvehicular criminal background nor to verify his denialthereof b
ecause of a lack of foreseeability that he would use the truck to
pick up and sexually assault a hitchhiker. Toimpose such a duty
would be against public policy by placing too great a burden on
employers. On the other hand, plaintiffposits the argument that f
actual issues exist which preclude summary judgment and requir
e a jury determination. We agreeand must affirm the trial court f
or the following reasons. Defendant correctly argues that the exi
stence of a duty is aquestion of law to be determined by the cou
rt, rather than by the factfinder. However, once a duty has been
found, thequestion of whether the duty was properly performed i
s a fact question to be decided by the trier of fact, whether court
orjury.
The existence of a legal duty is not dependent on foreseeability
alone, but includes considerations of public policy and socialreq
uirements. In Illinois, two duties, among others not pertinent he
re, are imposed by law on owners of vehicles whopermit or hire
other persons to drive on our highways. The first duty requires t
hat the degree of care which an ownershould exercise in selectin
g a driver is that which a reasonable person would exercise unde
r the circumstances. An owneror employer also owes a duty in c
onnection with the entrustment of vehicles to others. In other w
ords, a vehicle owner hasa duty to deny the entrustment of a veh
icle to a driver it knows, or by the exercise of reasonable dilige
nce could haveknown, is incompetent. In addition to these dutie
s, it is well settled in Illinois that a cause of action exists agains
t anemployer for negligently hiring a person the employer knew,

3. or should have known, was unfit for the job.
B&L contends that a reasonable and prudent motor carrier could
not foresee that one of its drivers would rape and assaulta hitch
hiker. The court in Neering v. Illinois Central R.R. Co. in discu
ssing foreseeability stated that the ultimate injury mustbe the na
tural and probable result of the negligent act or omission such t
hat an ordinary and prudent person ought to haveforeseen as lik
ely its occurrence as a result of the negligence. It is not essentia
l that one should have foreseen the preciseinjury which resulted
from the act or omission. This interpretation thus requires an em
ployer to exercise that degree of carereasonably commensurate
with the perils and hazards likely to be encountered in the perfo
rmance of an employee's duty,i.e., such care as a reasonably pru
dent person would exercise in view of the consequences that mi
ght reasonably beexpected to result if an incompetent, careless,
or reckless agent were employed for a particular duty.
Applying these principles to the present case, it is clear that B&
L had a duty to entrust its truck to a competent employee fitto d
rive an over-the-
road truck equipped with a sleeping compartment. Lack of foret
hought may exist where one remains involuntary ignorance of fa
cts concerning the danger in a particular act or instrumentality,
where a reasonably prudentperson would become advised, on th
e theory that such ignorance is the equivalent of negligence. Be
aring in mind the factsthat B&L gave Harbour an over-the-
road vehicle with a sleeping compartment and that B&L probabl
y knew, or should haveknown, that truckers are prone to give ri
des to hitchhikers despite rules against such actions, the questio
n now becomesone of fact—
whether B&L breached its duty to hire a competent driver who
was to be entrusted with a B&L over-the-roadtruck.
Regarding defendant's public-
policy argument, there is no evidence in the record to justify the
contention that the cost ofchecking on the criminal history of al
l truck-
driver applicants is too expensive and burdensome when measur

4. ed against thepotential utility of doing so. Finally, we note that
a question of foreseeability is at times a question for the court a
nd attimes, if varying inferences are possible, a question for the
jury. In the present case, B&L did have a duty to check intoHar
bour's background so as to ascertain whether he would be a fit e
mployee. Based on the circumstances of this case, it isapparent t
hat reasonable persons could arrive at different conclusions as t
o whether B&L used due care in the performanceof this duty wh
en it employed Harbour. Questions which are composed of such
qualities sufficient to cause reasonablepersons to arrive at differ
ent results should never be determined as matters of law. Questi
ons of negligence, due care, andproximate cause are questions o
f fact to be determined by the factfinder.
In affirming the trial court's denial of summary judgment, we ar
e not expressing any opinion as to the resolution of thefacts in t
his case. Plaintiff has the heavy burden of proving that defendan
t B&L negligently performed a duty it owed her inentrusting Ha
rbour with an over-the-
road truck, and if negligence is found, that it proximately cause
d her injury. Thesequestions, including the issue of whether def
endant negligently hired Harbour by not checking his criminal b
ackground, arequestions for the trier of fact and become a questi
on of law only when the ultimate facts have been determined by
thefactfinder.
67
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5. Assessment Worksheet
Developing an Outline for a Business Continuity Plan for an IT
Infrastructure
Course Name and Number:
_____________________________________________________
Student Name:
_____________________________________________________
___________
Instructor Name:
_____________________________________________________
_________
Lab Due Date:
_____________________________________________________
___________
Overview
In this lab, you explained a BCP’s goals, you aligned a business
impact analysis (BIA) with the
BCP’s scope, you identified the BCP’s major parts, and you
developed a BCP outline for a given
scenario.
Lab Assessment Questions & Answers
1. How does a BCP help mitigate risk?
2. What kind of risk does a BCP help mitigate?

6. 3. If you have business liability insurance, asset replacement
insurance, and natural disaster
insurance, do you still need a BCP or disaster recovery plan
(DRP)? Why or why not?
4. From your scenario and BIA from the Performing a Business
Impact Analysis for a Mock IT
Infrastructure lab in this lab manual, what were the mission-
critical business functions and
operations you identified? Are these the focus of your BCP?
5. What does a BIA help define for a BCP?
6. Who should develop and participate in an organization’s
BCP?
7. Why do disaster planning and disaster recovery belong in a
BCP?
8. What is the purpose of having documented IT system,

7. application, and data recovery procedures
�and steps?
9. Why must you include testing of the plan in your BCP?
10. How often should you update your BCP document?
11. In your BCP outline, where will you find a list of prioritized
business operations, functions, and
processes?
12. In your BCP outline, where will you find detailed backup
and system recovery information?
13. In your BCP outline, where will you find a policy definition
defining how to engage your BCP
due to a major outage or disaster?
14. In your BCP outline, where will you find a policy definition
defining the resources that are
needed to perform the tasks associated with business continuity
or disaster recovery?
15. What is the purpose of testing your BCP and DRP
procedures, backups, and recovery steps?

8. Course Name and Number: Student Name: Instructor Name: Lab
Due Date: Text77: Text78: Text79: Text80: Text81: Text82:
Text83: Text84: Text85: Text86: Text87: Text88: Text89:
Text90: Text91:
59
Copyright © 2015 by Jones & Bartlett Learning, LLC, an
Ascend Learning Company. All rights reserved.
www.jblearning.com Student Lab Manual
Assessment Worksheet
Performing a Business Impact Analysis for a Mock IT
Infrastructure
Course Name and Number:
_____________________________________________________
Student Name:
_____________________________________________________
___________
Instructor Name:
_____________________________________________________
_________

9. Lab Due Date:
_____________________________________________________
___________
Overview
In this lab, you defined a BIA’s goal and objective, you
identified where the BIA fits in the
business continuity plan (BCP), you identified mission-critical
applications and data access
requirements, you performed a BIA qualitative assessment
approach, and you created a BIA
executive summary report for management.
Lab Assessment Questions & Answers
1. What is the goal and purpose of a business impact analysis
(BIA)?
2. Why is a business impact analysis (BIA) an important first
step in defining a business continuity
�plan (BCP)?
3. What is the definition of recovery time objective (RTO)?
Why is this important to define in an IT
Security Policy Definition as part of the business impact
analysis (BIA) or business continuity
plan (BCP)?
4. How do risk management and risk assessment relate to a
business impact analysis (BIA) for an IT

10. infrastructure?
Performing a Business Impact Analysis for a Mock IT
Infrastructure
5. True or false: If the recovery point objective (RPO) metric
does not equal the recovery time
objective (RTO), you can potentially lose data that might not be
backed up. This represents a gap
in potential lost or unrecoverable data.
6. If you have an RPO of 0 hours, what does that mean?
7. What must you explain to executive management when
defining RTO and RPO objectives for the
BIA?
8. What questions do you have for executive management in
order to finalize your BIA?
9. Why do customer service business functions typically have a
short RTO and RPO maximum
allowable time objective?

11. 10. To write backup and recovery procedures, you need to
review the IT systems, hardware, software,
and communications infrastructure that supports business
operations and functions, and you need
to define how to maximize availability. This alignment of IT
systems and components must be
based on business operations, functions, and prioritizations.
This prioritization is usually the
result of a risk assessment and how those risks, threats, and
vulnerabilities impact business
operations and functions. What is the proper sequence of
development and implementation for the
following plans?:
Business Continuity Plan:
Disaster Recovery Plan:
Risk Management Plan:
Business Impact Analysis:
Course Name and Number: Student Name: Instructor Name: Lab
Due Date: Text67: Text68: Text69: Text70: Text71: Text72:
Text73: Text74: Text75: Text76: