Suing for Negligent Hiring and Supervision of an Employee

Oftentimes, injuries take place in a place of business, or the accident occurs due to the negligence of an employee elsewhere - in these scenarios, California law may give the injured plaintiff the right to sue and recover damages from the employer pursuant to a negligent hiring or supervision claim, though the circumstances must justify the claim, of course.

How Does a Negligent Hiring/Supervision Claim Work?

Negligent hiring and supervision are independent injury claims that are brought against an employer for hiring (or failing to properly supervise) an employee who presents an unreasonable danger to others. Though the circumstances may appear similar to a "vicarious liability" claim against the employer, the elements are different.

California Civil Jury Instruction (CACI) 426 clearly elaborates the elements necessary for proof in the negligent hiring/supervision context. Simply put, in order to prove that the employer is liable for negligently hiring and/or supervising an employee, you must show that:

  1. the defendant-employer hired the employee in question;
  2. the employee was (or became) unfit or incompetent to perform the work for which they were hired, or exposed others to a particular risk;
  3. the defendant-employer knew or should have known these issues;
  4. the employee's unfitness, incompetence, or risk factors caused you to suffer harm; and
  5. the defendant-employer's negligence in hiring and supervising the employee would have prevented the harm in question.

These elements are fairly straightforward, but let's use a quick example for clarification purposes.

Suppose that you are injured due to the negligence of an employee at a movie theater - a janitor. The employee was hired to pick up trash, mop, and dry the floors between showings to ensure that there are no slipping or tripping hazards for customers. One day, however, the employee shows up intoxicated to work and does not clean between showings, which enables the formation of a non-obvious, slick patch on the floor - you walk on the patch and fall to the ground, injuring yourself.

Now, as it turns out, the employer knew that the employee was an alcoholic who had been to rehab several times and had failed to stay sober. By hiring the employee, the employer was exposing others to a serious risk. If the employer wished to avoid the situation at-issue, they should have properly supervised the employee - perhaps by having the employee check in with the shift manager to ensure that they are sober before beginning to work.

In this example, you would likely have an actionable negligent hiring/supervision claim against the employer for damages.

Common Liability Barriers

In the negligent hiring and supervision context, there are several defenses that are commonly used to shield the defendant-employer from liability:

  1. the employee acted intentionally; and
  2. the employee was not acting within the course and scope of their employment at the time of the negligence in question.

We'll consider each of these defenses, in turn.

Intentional Act

Generally speaking, employers cannot be held liable for the intentionally wrongful acts of their employees. For example, if an employee bodyslams a customer and thereby causes severe injury, the employer will most likely not be held liable, as it is clearly an intentional act, and not a negligent act.

There is a significant exception that allows plaintiffs to overcome the defense, however. In cases where the employer "knew" or "reasonably should have known" about the employee's willingness to engage in such acts, the employer may be held liable for negligent hiring or supervision.

Whether the employer should have known depends on the particular circumstances of the case. For example, if the employee has a criminal record (involving a string of violent crimes), then the employer is likely to be liable for negligent hiring or supervision. When an employer hires such an employee, they must exercise reasonable effort to properly supervise them to prevent the occurrence of such situations.

Course and Scope of Employment

In the negligent hiring and supervision context, employers cannot be held liable for the actions of their employees - negligent or intentional - that fall outside of the course and scope of the employment at-issue, as the consequences are unrelated to the employer. For example, if an employee is driving back home from work and gets into a car accident due to speeding, it cannot be said that the employer is in anyway connected to the incident, at least not to the extent that liability would attach.

Contact an Experienced San Jose Personal Injury Attorney for Further Assistance

If you have been injured in an accident that was caused by the negligence of an employee (who was acting within the course and scope of their employment), then you may be entitled to compensation pursuant to California law. Bringing a successful action for negligent hiring and supervision can be quite difficult, however, without the assistance of a skilled personal injury attorney - negligent hiring and supervision claims are non-standard, and as such, experienced advocacy is critically important.

Here at the Law Offices of Brian O'Grady, we have decades of experience representing the interests of injured plaintiffs in litigation, including situations that involve negligent hiring and supervision claims. We are well-equipped to advocate on your behalf.

We are committed to client-oriented legal representation, as we believe that maintaining open lines of communication with the client - and aligning our strategic objectives throughout the litigation process - is the key to securing a successful resolution. Unlike many other personal injury firms, we are encouraged by the interest and engagement of our clients, and are available to answer any questions or concerns that they may have as we proceed.

Interested in exploring your claims further?

Call (650) 318-6131 today to schedule a free and confidential consultation with an experienced San Jose personal injury attorney at the Law Offices of Brian O'Grady. We look forward to working with you to develop a winning litigation strategy.