California law makes an employer liable for an employee’s negligence, recklessness or intentional wrongful acts when the employer knew or should have known that the employee was a risk to others. This legal principle is called negligent hiring, negligent supervision, or negligent retention of an employee. 1
This is important because employees often lack the assets to pay for all of your compensatory damages in a personal injury claim. Employers have deeper pockets and are more likely to have insurance to cover their employees’ wrongful actions.
Common examples of negligent supervision/hiring/retention cases include:
To help you better understand the law, our California personal injury lawyers discuss:
Employers whose incompetent workers cause harm could be liable in a negligent supervision claim.
To prove a defendant was negligent in hiring, supervising, or retaining an employee in California, you must show that:
Note this is different from California’s respondeat superior law, which assigns employers vicarious liability for an employee’s wrongful acts. Negligent hiring/supervising/retaining holds employers directly liable for their own failure to protect others. 3
For purposes of California’s negligent hiring, retention or supervision law, employees consist of anyone subject to the direct control of an employer. Such people consist not only of salaried employees but of:
In claims for negligent supervision of children, employees often include:
Employers must have known that the worker was unfit in order to be liable for the cause of action of “negligent hiring”.
To be liable for negligent hiring, supervision or retention, an employer must have known or been on notice that the employee was unfit or incompetent to perform the work for which he or she was hired or retained.
Sometimes this is simply a matter of the employer having received actual notice.
Example: A number of legal assistants complain to a law firm’s human resources department that one of the attorneys has been inappropriately touching them. The HR person ignores the sexual misconduct and molestation complaints because the lawyer in question is responsible for a large percentage of the firm’s business.
Because the firm was on notice of the lawyer’s inappropriate behavior, it might be held liable for sexual harassment claims. The firm negligently retained an employee it was told was engaging in unlawful behavior.
Under California Civil Code 1714 everyone is responsible for injuries caused by their want of ordinary care or skill in the management of their property or person.
In addition to the ordinary duty of care, California statutes impose special relationships upon certain types of employers. For instance, schools owe a duty of care to use reasonable measures to protect students from foreseeable injury by third parties. This includes negligence by
Transportation network companies, such as taxis and limos, must by law conduct a criminal background check of their drivers. 5 They may not hire a driver with a history of certain crimes, including crimes involving violence.
Example: Alex applies to drive for a taxicab company even though he has a three-year old conviction for California misdemeanor battery. The employee handling Alex’ application overlooks the conviction and Alex is hired.
After a passenger starts arguing with him, Alex punches the passenger in the face. The passenger sues Alex for his medical bills, lost wages, pain and suffering and emotional distress, as well as punitive damages. He also sues the taxi company because the taxi company was negligent in hiring Alex.
