Some reading and interesting case examples below
Definitions
Negligent hiring and retention cases depend on two fundamental elements—knowledge of the employer and the foreseeability of harm to third parties. Generally, the injured party must show that the employee who caused the injury had some propensity, proclivity, or course of conduct that should have put an employer on notice of the possible danger. Assuming that the employer has access to some information about the employee, the employer must determine whether that information would be sufficient to impose liability on that employer if that employee later causes harm. To establish liability, the plaintiff must establish that the employer knew or should have known information that would have put the employer on notice of the possible danger to third parties
Liability often turns on the issue of foreseeability. In most states, foreseeability depends in large part on “the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused.” Other states rely more heavily on the “totality of the circumstances” which would indicate a propensity to cause harm.
Prior Similar Incidents : The foreseeability that some injury may occur due to the conduct of an exoffender is one element necessary to finding an employer liable.” For some courts, foreseeability can be established by “prior similar incidents” of the person who causes the harm, if the conviction was based on a prior incident that was sufficiently similar to the conduct in question. If there is sufficient
nexus between the harm caused by the employee and even a single isolated incident, the employer may be held liable.
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That court noted the opinion of an expert in criminology that “the best indicator of potentially-dangerous future conduct is the history of a person’s past conduct.”
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Similarly, the Illinois Court of Appeals has held that the employer need not foresee “the precise harm that did in fact occur” to be liable for the harm caused by its employee if, at the time of hiring, “a reasonably prudent person should have foreseen some harm to another as likely to occur.”
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The dangerous employee’s prior conduct may be enough to impose liability on an employer if it is similar to the conduct that caused the harm in question. However, there is a lack of clarity as to what level of similarity is necessary to impose liability on the employer. For example, violent behavior by an employee generally is considered “predictable,” if that employee has been violent in the same way in the past.
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Examples of negligent hiring cases won
One Massachusetts case provides an example of this foreseeability. A bar employee’s prior convictions for assault with a dangerous weapon, assault with intent to commit rape, and kidnapping were enough to send to a jury the negligent hiring claim of a bar patron who was assaulted by the employee
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Some connections between prior behavior and the act in question are fairly obvious. The U.S. Army was denied summary judgment in a claim by the victim of a sexual assault by one of its soldiers. The soldier, prior to his employment by the Army, had committed rape as a juvenile and had felony convictions including burglary and unlawful use of a weapon, including one felony less than twelve months prior. The court relied in part on statistics showing the high rate of recidivism among convicted rapists. The court also considered his “pattern” of engaging in felonies, stating that “his rape conviction was not an isolated incident, but was part of a pattern of violent,
felonious behavior by which he posed a danger to others.”
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a jury verdict against a contractor was upheld based on a painter’s robbery and assault of homeowners where the contractor had been hired, based on the painter’s history of chemical dependence and recent theft of another client’s computer. The jury was justified in finding that the assault was foreseeable, even though the painter had no history of violence, based on the painter’s history of chemical dependence and recent theft of another client’s computer. The employer could have foreseen that the painter, “given access to private residences, could not only burglarize them but also injure residents."
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Examples of negligent hiring cases lost
The Supreme Court of South Dakota, for example, refused to hold an employer liable for an assault committed by an employee a prior conviction for resisting arrest in connection with a domestic violence situation, noting that the eight years since the conviction and a lack of violent behavior in the workplace made the event unforeseeable.
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The employee, a driver, had prior convictions of arson and aggravated assault; later, while on a driving assignment, he raped and
murdered a motorist. The employer may have known that a former girlfriend of the driver alleged that he assaulted her, but her complaint was subsequently dismissed. Additionally, the employer had been informed that at a younger age, the driver had been placed in a behavioral health hospital because of a drug addiction and a “hot temper.” Despite this history, the court concluded that “no reasonable juror could conclude from that information that [the employer] knew or should have known that [the driver]
was unfit for his job as a long-haul truck driver.”
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an Ohio court refused to hold an employer liable for the sexual assault of a coworker committed by an employee who had a record of indecent exposure at a city park. The court noted that the exposure was not a “physical assault” and that even the police detective testified that “it would be quite a stretch” to predict the sexual assault based on the exposure that occurred six years earlier.
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For example, a university was not liable when an intoxicated employee caused an accident while operating a university vehicle that he
accessed through his employment. Although the employee did not possess a valid driver’s license and had two DUI convictions, the court held that the accident was unforeseeable because his “employment history showed he had been a model employee, never had consumed alcohol at work or reported for work intoxicated, never had been in any motor vehicle accidents, never had taken any item from any employer without permission, and had no record of theft.” The court focused on the notion that the theft was unforeseeable, even though the use of alcohol while driving was consistent with past behavior and may have been more directly related to the accident than the theft.
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For example, a company that provided airport services to privately owned airplanes was not liable for harm caused by an employee after the employee took its plane for a “joy ride,” even though the employee had a military criminal record for a drug offense. This record, even combined with employee reprimands for failing to ground airplanes when refueling, being late and taking off from work without permission, were not enough to make the harm foreseeable.
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an employer was not responsible for a burglary committed by its painters who had criminal records that included spousal battery, driving with a suspended license, possession of drugs, reckless driving, fleeing police, and driving with an expired license. The court concluded that these crimes were insufficiently related to the burglary to hold the employers liable for negligent hiring
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an employer in Montana was not liable for the harm caused by an employee in a motor vehicle accident, even though the driver had
a record of several speeding tickets. Since the driver was not speeding when the accident occurred, the employer was not liable for negligent retention despite its prior knowledge of those speeding tickets
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a gas station was not liable for its cashier’s shooting and killing of a customer and his son, despite his criminal record, where the
previous crimes were non-violent, and a previous shooting incident did not result in criminal charges. The employer knew about the prior convictions but believed that they were irrelevant to his duties, since most of the clerk’s contact with customers was oral communication through an intercom and/or cash drawer located in a bulletproof gazebo
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a Michigan court dismissed a negligent hiring claim against an employer based on its employee’s sexual assault despite the employee’s prior conviction for fraudulent use of a financial device, since that conviction was not a predictor of the criminal sexual conduct
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another employer was found not liable for negligently hiring an employee who assaulted a coworker. The employee in question had a record of larceny and breaking and entering. The Magistrate judge stated that “[t]his information, standing alone, is insufficient to put [the employer] on notice that [the assaultive employee] was in the habit of misconducting himself in a manner dangerous to others.” The district court later agreed that the record did not indicate that the employer “knew or had reason to know at the time of hiring that [the employee] would be dangerous to women or that any assault by him would be foreseeable.”
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a school district was relieved of liability for negligently hiring and retaining a high school teacher who had inappropriate interactions with a student, even though the school district may have known that the teacher had married a former student. This knowledge alone did not “put the school district on notice that [his] relationship with [his wife/former student] was improper, that he was in a habit of misconducting himself, or that he otherwise represented a threat to his students
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an employee’s “FEAR ME” tattoo was not enough to impose liability on a restaurant based on that employee’s assault of a customer. The employer’s liability was also undermined by the employee’s lack of any prior work history of an invalid nature, any prior criminal history, any pending charges or bad references, or even any violent tendencies after getting the tattoo. Like the tattoo, an employee’s admitted membership in a street gang prior to the start of employment, an arrest for loitering (under an ordinance later found unconstitutional), and one suspension from high school for missing class were not found to be enough to put an employer on notice that an employee who later assaulted a customer was unfit to work as a cook or that he was a danger to customers
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For example, a trucking company was granted summary judgment despite the fact that a driver who raped a passenger in his truck had held seven jobs in less than a year and a half. The court found that this fact may have indicated that the driver “probably would not stay on a particular job for very long,” but concluded that his job history was “not evidence of a tendency to commit rape or to engage in deviant sexual activity or that he had a proclivity towards it.
enough to make a point?
And it's been four years and is very difficult to Prince remember all the details clearly. :thinking: Poor Michael, always surrounded by snakes. 