If an employee causes damages while on the job, and those damages were reasonably foreseeable or preventable, his or her employer may be guilty of negligent hiring, negligent retention, negligent supervision, or negligent training.
If you were damaged, whether physically or financially, by an employee of a company, you may be able to bring a claim against the employer. Two important aspects of these cases are: (1) whether the employer knew or should have known (had the employer exercised ordinary care) of the employee’s unfitness at the time of hiring, and (2) whether that foreseeable unfitness was a cause of the resulting injuries. Here are a few examples of when this might come up and how these two aspects of a case can apply.
Let’s say a moving company hired someone, who had an extensive criminal record of arson convictions for setting houses on fire. This would likely satisfy the first aspect, in that the employer either did run a background check and found these things, or did not run a background check but should have (and had it done so, it would have found the convictions). Let’s say that employee then stole a safe from the property the moving company was transporting. That would likely not satisfy the second element, because the foreseeable unfitness (a proclivity for burning down buildings) was not a proximate cause of the injury (the employee stealing the safe). Now, if the employee had a conviction, or better yet multiple convictions, for theft, larceny, burglary or similar crimes, that would likely satisfy the second aspect and leave you in a position to submit a colorable claim for negligent hiring. A moving company should know that employees with histories of stealing are going to be provided with ample opportunities to steal when they’re transporting every belonging a family has from home to home with minimal supervision.
Serious thought must be given to whether or not the specific unfitness of the employee, even when it’s a very dangerous unfitness generally, is really an unfitness for that job. It is easy to get so focused on the extreme nature of the underlying facts supporting the employee’s “unfit” status that you lose sight of whether or not those underlying facts really make the person unfit for that specific job. For example, let’s take that same pyromaniac employee, but let’s say he was hired as a cashier by a major electronics retailer. One day, he runs to the bathroom, locks the door, pours lighter fluid all over the bathroom, then lights it on fire, ultimately burning the building to the ground and seriously injuring one person. The plaintiff, the injured person, might be so focused on the fact that a multiple felon was employed despite his criminal record that he or she would make the weak argument that a multiple felon can never be employed anywhere, and miss the stronger argument that the act of lighting the electronics store on fire was completely foreseeable, as he had multiple convictions for lighting buildings on fire. The defendant, the electronics company, would likely argue that (1) he was not unfit to work as a cashier, as that does not provide you any real opportunity to start fires, and (2) that he only had a history of lighting homes on fire, so even if lighting homes on fire made you unfit to be a cashier, it was unforeseeable that the employee would light a business on fire.
One final aspect of negligent hiring cases worth a brief discussion is that there is a strong argument to be made that employers who send their employees into their customers’ homes are under a higher standard of care than those whose employees do not enter customers’ homes. Conversely, if an employer has an employee who does not come into contact with the public, there may not be a duty to perform a background check. But such a rule seems to needlessly cast aside the safety concerns of co-workers.
Negligent retention is very similar to negligent hiring. The duty of an employer to exercise reasonable care in selection of employees is ostensibly the same when it comes to retaining them. Accordingly, negligent retention claims often accompany negligent hiring claims.
Negligent retention claims can be brought in conjunction with a negligent hiring claim or separately. Two common examples of why such a claim would be brought without a negligent hiring claim are when an employee, who had no history at the time of hiring that would put an employer on notice of his or her unfitness, (1) gets charged with a crime after hiring or (2) is the subject of customer complaints. The employer might argue that criminal charges are not something it is privy to, but if the employer took no steps to inquire as to employees’ criminal conduct, it might not carry much weight with a jury to argue that you couldn’t find out, when you weren’t trying to find out in the first place. It would be very difficult for an employer to deny knowledge, actual or constructive, of customer complaints.
Negligent supervision claims essentially are claims that there was a duty to supervise and that a reasonable person would recognize that an incident of the type alleged could occur, and that steps should have been taken to prevent it. The exercise of ordinary care may require more vigilance and caution when a child or other helpless individual (such as someone with mental deficiencies), is involved, and a potentially dangerous condition exists that the supervisor should be aware of.
Missouri, for example, has recognized negligent supervision claims in a number of situations, including parents, grandparents, teachers, and babysitters.
In the case of supervision of a child (e.g., parents and grandparents), some defendants have argued that the defendant must have exclusive power to control the harm to be liable. This is another way of saying, “I knew about the danger and didn’t do anything about it, but I didn’t cause the harm myself, so don’t blame me.” This is a perfect application of the phrase so often quoted in so many variations: “All that is needed for evil to prevail is for good men to do nothing.” This argument has been rejected by at least one court, ruling that it is the obligation and ability to supervise and control the child, not the instrumentality that caused the harm, that is the decisive factor as to whether or not a party can be held liable for negligent supervision.
The opposite is true of negligent supervision of an adult, which emphasizes the supervisor’s right and ability to control the activity of the wrongdoer rather than to control the injured victim.
Negligent training cases focus on whether the employer owed a legal duty to the plaintiff to exercise reasonable care in training its employee, the defendant did not exercise reasonable care in training its employee (or failed to train him or her entirely), that failure proximately caused the injury, and the plaintiff suffered damages because of the injury (financial, physical, or possibly otherwise). Negligent training cases are usually brought in conjunction with one or more of the above claims, but can be brought independently.
If you think that you have suffered a wrong that may be due to one of the claims above, call The Flynn Law Firm today for a free consultation.