1.KMS Investments owns an apartment complex known as the Driftwood Apartments. Dennis Graffy was employed as apartment manager and had general supervision over 198 apartment units. He was issued a passkey that would afford him access to all units. One of the tenants, Jill Kelly, noticed that her refrigerator was not functioning properly and notified Graffy, who came to the apartment. When in the apartment Graffy commented that he had not seen her husband for some time. In response, she informed him that her husband was a musician and out of town on a band job. In the early hours of the following day she was violently raped at knifepoint by a person she recognized as Dennis Graffy. He attempted to strangle her but she escaped through a broken window. Graffy was subsequently arrested and convicted of sexual

assault in the first degree and sentenced to prison.

Prior to working for KMS, Graffy lived in Nevada where he had been charged and convicted of burglary and receiving stolen property. He served 5 months in jail. Shortly after his release from jail, he moved to Arizona where he was charged with two counts of armed robbery, two counts of burglary, and three counts of theft. As a result of plea negotiations, he was convicted on armed robbery and burglary and sentenced to prison. He was released two years later and moved to California with his wife and child. He obtained a job as a bus driver and he and his wife were also caretakers for a 24-unit apartment building where they lived. He was fired from the bus company after only a month and a half for drinking on the job and apparently had also had a fight with his

supervisor.

Eventually Graffy and his wife answered a newspaper advertisement for the residential manager job with KMS at the Driftwood Apartments. Delores Swanson, the property manager for KMS and the person solely responsible for hiring apartment employees, interviewed the Graffys. Later, a credit check was made in California and Arizona. It was normal for KMS to make a check on the named references, either by telephone or by mail. In the case of the Graffys, Mr. Graffy had put down on his application form two names as references, one of which did not have an address and neither or which had telephone numbers. As it turned out, the two names given were his mother and sister who resided in Nevada. Originally, the Graffys were not the successful applicants for the vacancy. But when the couple that was selected turned down the KMS

offer, the Graffys were called and given 20 minutes in which to decide about the position.

They agreed and were hired without further investigation.

Could Jill Kelly successfully sue KMS for her injuries? What legal theory would she assert and what factors would the court examine in her lawsuit?