Negligence in employment

Last updated

Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. [1] [2] While negligence in employment may overlap with negligent entrustment and vicarious liability, the concepts are distinct grounds of liability. The doctrine that an employer is liable for torts committed by employees within the scope of their employment is called respondeat superior .

Contents

Negligence

As with all negligence claims, the claimant must prove four elements: [3]

In order for such a duty to exist, the injury to the claimant must be "reasonably foreseeable", [5] meaning, for example, that the type of employment must be one in which an unfit employee could cause harm of the type which occurred, [4] and the claimant is the type of person to whom such harm would be a "reasonably foreseeable consequence". [6]

Negligent hiring

Negligent hiring may be found where the employee (the tortfeasor) had a reputation or record that showed his/her propensity to misuse the kind of authority given by the employer, and this record would have been easily discoverable by the employer, had the employer exercised 'due diligence'. For example, a victim of sexual harassment in the workplace may have a cause of action for negligent hiring on the part of her employer if she can show that the employer was aware of the harasser's termination from a previous position for the same behaviour.

Negligent hiring preventive measures

In the sexual harassment example described above, the employer may be held liable for negligent hiring if the harasser had a previous history of harassment. This is because an employer has an obligation to its employees and others who will come in contact with them to provide a safe and productive working environment.

One preventive measure for negligent hiring is to perform a reasonable investigation on potential employees. This may include conducting interviews, verifying work and educational histories, checking references and conducting a background check on all applicants who have accepted an offer of conditional hire, and if an adverse assessment is found, to deny employment to such an applicant.

Note that simply conducting a criminal background check on an applicant may not be a sufficient investigation. In Minnesota, for example, such a check was determined to be insufficient by the court in Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983). This will not guarantee the employer will not be held liable, but it will show that the employer used a diligent search to screen potential harassers from the workplace, and will assist the employer in demonstrating that it took reasonable care in hiring. It is important to also note that, in the United States, background checks for job applicants are subject to the Fair Credit Reporting Act (2003). [7] If an adverse assessment is found in an employment screen, the applicant has the right to dispute the report.

The majority of credible empirical research indicates that, likely due to employer concerns regarding negligent hiring liability, a criminal record has a significant negative effect on the hiring outcomes of ex-offenders. [8]

Negligent retention, supervision, and training

Negligent retention occurs where a party failed to remove an employee from a position of authority or responsibility after it became apparent that the employee was in fact misusing that authority or responsibility in a way that posed a danger to others.

Negligent supervision is closely related, as it occurs where a party fails to reasonably monitor or control the actions of an employee. A variation of negligent retention or supervision is negligent training, which arises where the employer's training of the employee fails to prevent the employee from engaging in the acts that injure the claimant, or fails to remediate a pattern of behaviour which leads to an injury. Suits for negligent retention often plead negligent supervision or training as an alternate theory, as the employer who knows of an employee's improper conduct should either terminate that employee, or take steps to penalise that conduct and/or train the employee not to engage in that conduct.

Negligent entrustment

Negligent entrustment arises where the entrustor is held liable for negligence because they negligently provided the entrustee with a dangerous instrument, and the entrusted party caused injury to a third party with that instrument. Where such a claim is brought against an employer, the employer will be held liable if the entrustee's record was known, or would have been easily discoverable, to the employer. For example, if a bus company hires a driver who has a record of reckless driving, of which the company could have learned through a search of publicly available records, the company would be liable for the negligent entrustment of the bus to that driver, should the driver cause an accident.

Negligent entrustment differs from negligent hiring, retention, supervision, and training in two key respects.

Vicarious liability

Vicarious liability is a separate theory of liability, which provides that an employer is liable for the torts of an employee under an agency theory, even if the employer did nothing wrong. The principle is that the acts of an agent of the company are assumed, by law, to be the acts of the company itself, provided the tortfeasor was acting within the course of his employment.

By contrast, each of the above negligence theories requires proof of actual negligence on part of the employer before the injury occurred, for example when the employee was first hired.

Notes and references

  1. Lewis, Kathryn; Gardner, Susan (2000). "Looking for Dr. Jekyll but hiring Mr. Hyde: Preventing negligent hiring, supervision, retention, and training". Hospital Topics. 78 (1): 14–22. doi:10.1080/00185860009596542. PMID   11010457.
  2. Larson, Aaron (16 July 2016). "When is an Employer Liable for an Employee's Motor Vehicle Accident". ExpertLaw. Retrieved 21 September 2017.
  3. Galligan, Thomas C. (1992). "A Primer on the Patterns of Negligence". Louisiana Law Review. 53: 1509. Retrieved 21 September 2017.
  4. 1 2 3 Feliu & Johnson, Negligence in Employment Law ISBN   1-57018-263-9, ISBN   978-1-57018-263-1 (2002) p. 33.
  5. see Negligence; Donoghue v Stevenson
  6. See, e.g., The Wagon Mound (No 2).
  7. "Fair Credit Reporting Act". U.S. Government Publishing Office. Retrieved 21 September 2017.
  8. Shepard, Stephen (2011). "Negligent Hiring Liability: A Look at How It Affects Employers and the Rehabilitation and Reintegration of Ex-Offenders". Appalachian Journal of Law. 10 (Spring): 145.

Related Research Articles

Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

A tort, in common law jurisdiction, is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial loss, injury, invasion of privacy, and numerous other harms. The word tort stems from Old French via the Norman Conquest and Latin via the Roman Empire.

This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.

In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability.

Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee.

English tort law Branch of English law concerning civil wrongs

English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty owed, while strict liability torts refers to situations where a party is liable for injuries no matter what precautions were taken.

In tort law, an intervening cause is an event that occurs after a tortfeasor's initial act of negligence and causes injury/harm to a victim. An intervening cause will generally absolve the tortfeasor of liability for the victim's injury only if the event is deemed a superseding cause. A superseding cause is an unforeseeable intervening cause. By contrast, a foreseeable intervening cause typically does not break the chain of causality, meaning that the tortfeasor is still responsible for the victim's injury—unless the event leads to an unforeseeable result.

Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party, causing economic harm. As an example, someone could use blackmail to induce a contractor into breaking a contract; they could threaten a supplier to prevent them from supplying goods or services to another party; or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.

In English tort law, an individual may owe a duty of care to another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the tortfeasor to compensate the victim for any losses they incur. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. The doctrine was significantly developed in the case of Donoghue v Stevenson, where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.

Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law.

<i>Re Polemis & Furness, Withy & Co Ltd</i> English legal case involving negligence

In RePolemis & Furness, Withy & Co Ltd (1921) is an English tort case on causation and remoteness in the law of negligence.

Negligent entrustment is a cause of action in United States tort law which arises where one party is held liable for negligence because they negligently provided another party with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality. The cause of action most frequently arises where one person allows another to drive their automobile.

<i>Fairchild v Glenhaven Funeral Services Ltd</i>

Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 is a leading case on causation in English tort law. It concerned malignant mesothelioma, a deadly disease caused by breathing asbestos fibres. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard.

<i>Barker v Corus (UK) plc</i> House of Lords decision

Barker v Corus (UK) plc [2006] UKHL 20 is a notable House of Lords decision in the area of industrial liability in English tort law, which deals with the area of causation. In this case, the House of Lords reconsidered its ruling in the earlier landmark case Fairchild v Glenhaven Funeral Services Ltd concerning the liability of multiple tortfeasors.

The following outline is provided as an overview of and introduction to tort law:

Smith v Leech Brain & Co [1962] 2 QB 405 is a landmark English tort law case in negligence, concerning remoteness of damage or causation in law. It marked the establishment of the eggshell skull rule, the idea that an individual is held responsible for the full consequences of his negligence, regardless of extra, or special damage caused to others.

Vicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conducting their duties. This liability has expanded in recent years following the decision in Lister v Hesley Hall Ltd to better cover intentional torts, such as sexual assault and deceit. Historically, it was held that most intentional wrongdoings were not in the course of ordinary employment, but recent case law suggests that where an action is closely connected with an employee's duties, an employer can be found vicariously liable. The leading case is now the Supreme Court decision in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools, which emphasised the concept of "enterprise risk".

The civil liability of a recreational diver may include a duty of care to another diver during a dive. Breach of this duty that is a proximate cause of injury or loss to the other diver may lead to civil litigation for damages in compensation for the injury or loss suffered.

Nondelegable obligation

A nondelegable obligation is a legal obligation or duty which cannot legally be delegated or, if delegated, the principal is still liable for said obligation. They are also known as non-assignable duties or obligations. These obligations cannot be delegated due to stipulations of public policy, statute, or common law. Nondelegation can also be written into a contract even when it otherwise would not apply. There are many types of automatically nondelegable obligations, including those involving trained professionals and those with a medical or fiduciary duty. Political duties are also often considered nondelegable. When an obligation is nondelegable, the obligee is entitled to specific performance by the obligor.