[Terry Taylor was an employee of Molalla Transport. In hiring Taylor, Molalla followed its standard hiring procedure, which includes a personal interview with each applicant and requires the applicant to fill out an extensive job application form and to produce a current driver’s license and a medical examiner’s certificate. Molalla also contacts prior employers and other references about the applicant’s qualifications and conducts an investigation of the applicant’s driving record in the state where the applicant obtained the driver’s license. Although applicants are asked whether they have been convicted of a crime, Molalla does not conduct an independent investigation to determine whether an applicant has been convicted of a crime. Approximately three months after Taylor began working for Molalla, he was assigned to transport freight from Kansas to Oregon. While traveling through Colorado, Taylor left the highway and drove by a hotel where Grace Connes was working as a night clerk. Observing that Connes was alone in the lobby, Taylor pulled his truck into the parking lot and entered the lobby. Once inside, Taylor sexually assaulted Connes at knifepoint. Although Taylor denied any prior criminal convictions on his application and during his interview, police and court records obtained since these events show that Taylor had been convicted of three felonies in Colorado and had been issued three citations for lewd conduct and another citation for simple assault in Seattle, Washington.

   Connes sued Molalla on the theory of negligent hiring, claiming that Molalla knew or should have known that Taylor would come into contact with members of the public, that Molalla had a duty to hire and retain high quality employees so as not to endanger members of the public, and that Molalla had breached its duty by failing to investigate fully and adequately Taylor’s criminal background. The district court granted Molalla’s motion for summary judgment. The Court of Appeals upheld the lower court’s ruling, holding that Molalla had no legal duty to investigate the non-vehicular criminal record of its driver prior to hiring him as an employee. Connes appealed.]

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      II

   The elements of a negligence claim consist of the existence of a legal duty by the defendant to the plaintiff, breach of that duty by the defendant, injury to the plaintiff, and a sufficient causal relationship between the defendant’s breach and the plaintiff’s injuries. [Citations.] A negligence claim will fail if it is predicated on circumstances for which the law imposes no duty of care upon the defendant. [Citations.] ‘‘A court’s conclusion that a duty does or does not exist is ‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.’’’ [Citations.]

   The initial question in any negligence action, therefore, is whether the defendant owed a legal duty to protect the plaintiff against injury. The issue of legal duty is a question of law to be determined by the court. [Citations.]

   A duty of reasonable care arises when there is a foreseeable risk of injury to others from a defendant’s failure to take protective action to prevent the injury. [Citation.] While foreseeability is a prime factor in the duty calculus, a court also must weigh other factors, including the social utility of the defendant’s conduct, the magnitude of the burden of guarding against the harm caused to the plaintiff, the practical consequences of placing such a burden on the defendant, and any additional elements disclosed by the particular circumstances of the case. [Citations.] ‘‘No one factor is controlling, and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards—whether reasonable persons would recognize a duty and agree that it exists.’’ [Citation.]

   The tort of negligent hiring is based on the principle that a person conducting an activity through employees is subject to liability for harm resulting from negligent conduct ‘‘in the employment of improper persons or instrumentalities in work involving risk of harm to others.’’ Restatement (Second) of Agency §213(b)(1958). This principle of liability is not based on the rule of agency but rather on the law of torts. In [citation], the New Jersey Supreme Court offered the following distinction between the tort of negligent hiring and the agency doctrine of vicarious liability based on the rule of respondeat superior:

Thus, the tort of negligent hiring addresses the risk created by exposing members of the public to a potentially dangerous individual, while the doctrine of respondeat superior is based on the theory that the employee is the agent or is acting for the employer. Therefore the scope of employment limitation on liability which is part of the respondeat superior doctrine is not implicit in the wrong of negligent hiring.

   Accordingly, the negligent hiring theory has been used to impose liability in cases where the employee commits an intentional tort, an action almost invariably outside the scope of employment, against the customer of a particular employer or other member of the public, where the employer either knew or should have known that the employee was violent or aggressive, or that the employee might engage in injurious conduct toward third persons.

   Several jurisdictions, in addition to New Jersey, have recognized the tort of negligent hiring, * * * and we now join those jurisdictions in formally recognizing this cause of action. 

   In recognizing the tort of negligent hiring, we emphasize that an employer is not an insurer for violent acts committed by an employee against a third person. On the contrary, liability is predicated on the employer’s hiring of a person under circumstances antecedently giving the employer reason to believe that the person, by reason of some attribute of character or prior conduct, would create an undue risk of harm to others in carrying out his or her employment responsibilities. See Restatement (Second) of Agency §213, comment d. The scope of the employer’s duty in exercising reasonable care in a hiring decision will depend largely on the anticipated degree of contact which the employee will have with other persons in performing his or her employment duties.

   Where the employment calls for minimum contact between the employee and other persons, there may be no reason for an employer to conduct any investigation of the applicant’s background beyond obtaining past employment information and personal data during the initial interview. [Citation.] * * * 

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   We endorse the proposition that where an employer hires a person for a job requiring frequent contact with members of the public, or involving close contact with particular persons as a result of a special relationship between such persons and the employer, the employer’s duty of reasonable care is not satisfied by a mere review of personal data disclosed by the applicant on a job application form or during a personal interview. However, in the absence of circumstances antecedently giving the employer reason to believe that the job applicant, by reason of some attribute of character or prior conduct, would constitute an undue risk of harm to members of the public with whom the applicant will be in frequent contact or to particular persons standing in a special relationship to the employer and with whom the applicant will have close contact, we decline to impose upon the employer his duty to obtain and review official records of an applicant’s criminal history. To impose such a requirement would mean that an employer would be obligated to seek out and evaluate official police and perhaps court records from every jurisdiction in which a job applicant had any significant contact. We have serious doubts whether such a task could be effectively achieved. Even if it could, there would remain the significant problem of interpreting the records and relating them in a practical way to the job in question. Accordingly, in the absence of circumstances antecedently giving the employer reason to believe that a job applicant, by reason of some attribute of character or prior conduct, would constitute an undue risk of harm to members of the public with whom the applicant will be in frequent contact or to particular persons who stand in a special relationship to the employer and with whom the applicant will be in close contact, the employer’s duty of reasonable care does not extend to searching for and reviewing official records of a job applicant’s criminal history.

III

   In the instant case, we agree with the court of appeals’ determination that Molalla had no duty to conduct an independent investigation into Taylor’s non-vehicular criminal background before hiring him as a long-haul driver. Molalla had no reason to foresee that its hiring of Taylor under the circumstances of this case would create a risk that Taylor would sexually assault or otherwise endanger a member of the public by engaging in violent conduct. To be sure, Molalla had a duty to use reasonable care in hiring a safe driver who would not create a danger to the public in carrying out the duties of the job. Far from requiring frequent contact with members of the public or involving close contact with persons having a special relationship with the employer, Taylor’s duties were restricted to the hauling of freight on interstate highways and, as such, involved only incidental contact with third persons having no special relationship to Molalla or to Taylor. After checking on Taylor’s driving record and contacting some of his references, Molalla had no reason to believe that Taylor would not be a safe driver or a dependable employee. In addition, Molalla specifically instructed its drivers to stay on the interstate highways and, except for an emergency, to stop only in order to service the truck and to eat and to sleep. It further directed its drivers to sleep in the sleeping compartment behind the driver’s seat of the truck at rest areas or truck stops located along the interstate highway system. Furthermore, Molalla required Taylor to fill out a job application and to submit to a personal interview. Taylor stated on the application form and at the interview that he had never been convicted of a crime. Nothing in the hiring process gave Molalla reason to foresee that Taylor would pose an unreasonable risk of harm to members of the public with whom he might have incidental contact during the performance of his duties.

   * * * We accordingly hold that Molalla, in hiring Taylor as a long-haul truck driver, had no legal duty to conduct an independent investigation into Taylor’s non-vehicular criminal background in order to protect a member of the public, such as Connes, from a sexual assault committed by Taylor in the course of making a long-haul trip over the interstate highway system. The judgment of the court of appeals is affirmed.