Can an employer be held negligent if it retains or hires an employee who is dangerous to the public?

Yes, if a state recognizes the torts of negligent hiring or negligent retention. Negligent hiring means that an employer negligently hired an employee that it knew or should have known through reasonable diligence present a risk to the public. For example, let's say that a trucking company hires a new driver who then drives drunk and injures some motorists. If a reasonable investigation by the employer would have revealed past convictions for drunk driving, the injured motorists would have a good case against the trucking company for negligent hiring.

Similarly, let's say that a private security firm receives a complaint that one of its officers sexually harassed a woman at a job site. The company fails to properly discipline this employee. If a few months later, this same employee allegedly sexually assaults another person, then the security firm may be liable for negligent retention. The theory behind negligent retention is that the employer should have known that this particular employee presented a risk to the public and should have terminated his employment earlier.

A company could also face liability for negligence if it fails to conduct any criminal background check at all, particularly if the company claims that it does conduct

LegalSpeak: Rucshner v. ADT Security Systems (Wash. App. 2009)

To prove negligent hiring, the plaintiff must demonstrate that (1) the employer knew or, in the exercise of ordinary care, should have known of the employee's unfitness at the time of hiring; and (2) the negligently hired employee proximately caused the plaintiff's injury..

Rucshner argues that PSP's agreement with ADT created a duty to customers such as MH, which PSP breached by failing to conduct Robinson's criminal background check and drug screening. We agree..

Rucshner also argues that PSP negligently hired Robinson because it knew, or should have known, that employing Robinson without conducting a criminal background check posed a risk of harm to its customers. We have already held that a genuine issue of material fact exists as to PSP's contractual duty to perform criminal background checks on its employees. Nevertheless, we also reach Rucshner's causation argument to point out that a genuine issue of material fact also exists on the issue of foreseeability of harm of the type that Robinson caused here.

such background checks. For example, a Washington appeals court in 2009 refused to dismiss a claim against a security services dealer after one of its employees raped a 14-year-old girl whose family was a customer. The appeals court focused on the fact that that the company—which contracted with the larger security company that it conducted background checks on its employees—failed to perform a criminal background check on its employee, who had numerous convictions.

What if some unexpected event causes damage to a plaintiff after a defendant's negligent act?

The law refers to these as superseding or intervening causes. In some states the terms are different. In other states the terms may be used more as synonyms. The point is that a superseding cause is an event, which occurs after the defendant's original negligent act, that breaks the chain of causation.

For example, let's say Driver A negligently rear-ends Driver B, causing injury to Driver B. An emergency crew comes to pick up Driver B to take her to the hospital for evaluation. As medical personnel take Driver B from the ambulance, a lightning bolt strikes the stretcher and kills Driver B. The lightning strike would qualify as a superseding cause that breaks the chain of causation from Driver A's negligent driving.

Many times such intervening causes are called Acts of God. One recent example occurred in Louisiana when the owner of a building alleged that the company that leased his building had negligently attached a sign to the top of his building. During Hurricane Katrina, the sign smashed into the building and caused significant damage. The owner of the building sued the company that leased his building, contending that the improper attachment of the sign caused the damage. A Louisiana appeals court disagreed in Duboue v. CBS Outdoor (La.App. 2008; see LegalSpeak above), finding that the damage from Hurricane Katrina was an act of God that broke the chain of causation.

LegalSpeak: Duboue v. CBS Outdoor (La.App. 2008)

Upon review, we find that the defendants put forth sufficient evidence to establish that the plaintiff's damages were caused by an act of God or, in civil law terms, force majeure. An act of God or force majeure is "an unusual, sudden and unexpected manifestation of the forces of nature which man cannot resist." . To be caused by an act of God, the plaintiff's injury must be due directly and exclusively to natural causes that could not have been prevented by the exercise of reasonable care. This court has held that two circumstances must exist for the act of God defense to apply: (1) the accident is directly and exclusively due to natural causes without human intervention; and (2) no negligent behavior by the defendant(s) has contributed to the accident.

< Prev   CONTENTS   Next >