Negligent Hiring The New "Entitlement"

Negligent hiring is not a new form of liability, and has been recognized by many state courts since the turn of the century. Whether new or simply newly rediscovered, negligent hiring liability is becoming popular for plaintiffs' attorneys and is the direct liability imposed due to the employer's own negligence. The traditional form of employer liability operates on the principle that employers are responsible for the acts of their employees and when tasks are performed on behalf of the employer and in the employer's general interest. If, through the carelessness or negligence of the employee, a member of the public is injured the employer is held financially and occasionally criminally responsible. This principle does, however, have its limitations. If the employee committed a harmful act outside the scope of employment and not to the benefit of the employer, the company would not likely be held responsible. If the harmful conduct clearly falls outside the scope of employment, acts that could reasonably be anticipated by the employer, no recovery could be made against the employer. Further, the vast majority of general liability insurance policies do not cover intentional acts by employees. Often, where there's no insurance, there's no recovery and a limited opportunity for plaintiffs exists. Thus, incentive arose for plaintiffs to find another route that would establish direct liability and lead directly to the employer's pocketbook. The solution was negligent hiring liability. This civil misconduct allows recovery against employers for the wrongful and even the criminal actions of employees, whether those actions are performed within or outside the scope of employment. The requirements of this tort are satisfied when the offending employee is hired without an adequate background investigation and such an investigation would have indicated the applicant was a risk. Negligent hiring must be understood before human resource managers can establish loss prevention programs to avoid it. Legally, it is defined as the failure of an employer to exercise reasonable care in selecting an applicant in light of the risk created by the position to be filled. This definition means employers must screen individuals adequately before they are hired. Employers are not always exposed to liability just because they failed to check an applicant's background. Liability results only when an inadequate screening effort is logically connected to the wrongful conduct. If a reasonably conducted investigation would have revealed facts indicating the applicant was undesirable, the failure to obtain the information is considered negligence. Many negligent hiring cases have been successful where it has been established that the assailant/employee had a prior record of violent crime. Based on the trend in negligent hiring case law, the failure to obtain or attempt to obtain criminal history data is the single most common reason for employer liability. A furniture store in Florida recently was held liable for damages to an injured person who was the victim of a criminal assault by an individual who had been employed by the store. The trial court jury brought back a verdict of some $2.5 million for the plaintiff. The employee had a criminal record of which the store was apparently unaware due to its failure to conduct what was felt to be a reasonable inquiry into the employee's background and record. The argument may be that the employer should not be held liable for the criminal acts of the employee; the argument may also be made that in failing to inquire into an applicant's background appropriately, the employer negligently exposed third persons to danger. Another case in which Domino's Pizza was sued by the parents of two boys - a three year-old and a six year-old - allegedly molested by a deliverer of pizza. Both families of the boys settled for $95,000 in one case and $280,000 in the other. It was revealed at the time of the deliverer's arrest that he had a criminal record. He had been arrested for burglary and grand theft, a fact that would have been found in a thorough background investigation. An employer can be held liable in certain situations where its employee commits a violent act that injures either a fellow employee or a third party. Employers are generally held to owe a duty to employees and to the general public to use reasonable care in the selection of their employees. Therefore, if an employer hires someone who they know or should know is unfit (in that he or she is a potential risk to others), the employer may be liable to an employee or a third party who is intentionally injured by such an employee. And how much is it reasonable to expect an employer to know? According to 60% of juries who have been asked to answer that question, and employer can reasonably be required to know whatever the police and district attorneys will find out if the employee commits a crime against a co-worker, client, or customer with whom he came in contact within the scope of his job. Home