Employers need to be wary of who they hire and what new hires do
Published 01/23/01

Most employers understand that they are liable for their employees’ negligence while within the scope of their employment that causes property damage or physical injury to another.

However, employers must also understand that they may also be held liable under the legal theory of negligent hiring, retention, or supervision in which it is not necessary that the employee actually be found negligent for the employer to be liable.

Under that legal theory, liability to the employer may occur when it is established that the employer was negligent or reckless: (a) in giving improper or ambiguous orders; (b) failing to make proper regulations, (c) the employment of improper persons or instrumentality’s in work involving risk of harm to others; or (d) in the supervision of an activity.

For example, if a painting contractor hires a college student without scaffolding experience to help on a project upon which painters are working with scaffolding, the painting contractor has an obligation to give proper orders and training to the college student as to how to set up the scaffolding.

If the employer fails to do so and that college student earnestly attempts to set up the scaffolding, yet fails to properly secure it resulting in it collapsing and injuring a bystander below, it is possible that a jury may not find that college student negligent. That is not to say, however, that the painting contractor would not be found liable for its own negligent supervision of that college student in setting up the scaffolding.

Another circumstance of a claim of negligent hiring, retention, or supervision is the case where an employee does an intentional wrongful act within the scope of their employment. While the employer may be vicariously liable for such employee’s intentional wrongful acts, the injured individual may want to also seek an alternative claim that will increase the likelihood that there will be insurance.

For example, if a doorman at a bar in removing an intoxicated and verbally abusive patron loses his tempers and beats up that patron, that patron may very well include in his litigation claims against the employer, a claim for negligent hiring, retention, or supervision of that doorman. This may increase the likelihood that, if successful, the patron’s damage award for his injuries will be covered by the bar’s commercial liability insurance policy.

An employer must be careful in properly training employees in their jobs and promptly addressing serious personnel issues such as drug abuse, criminal activities, or violent tendencies exhibited by an employee. An employer should also consult with their attorney as to the proper corrective action to take in such a way to minimize exposure to a possible disability discrimination claim under state or federal law.

Furthermore, employers should thoroughly check references and consider further backgrounds checks with signed authorizations as to both employees and independent contractors. Independent contractors should also generally provide proof of liability insurance coverage to the employer as a pre-requisite before their retention for any particular job. Under some circumstances, it may also be prudent to name the employer as an additional insured under the independent contractor’s policy depending.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.