California Jury Instruction CACI 426 Negligent Hiring, Supervision, or Retention of Employee

426. Negligent Hiring, Supervision, or Retention of Employee

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by [name of employee] and that [name of employer defendant] is responsible for that harm because [name of employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee]. To establish this claim, [name of plaintiff] must prove all of the following:

1. [That [name of employer defendant] hired [name of employee];]
2. That [name of employee] [[was/became] [unfit [or] incompetent] to perform the work for which [he/she/nonbinary pronoun] was hired/ [specify other particular risk]];
3. That [name of employer defendant] knew or should have known that [name of employee] [[was/became] [unfit/ [or] incompetent]/ [other particular risk]] and that this [unfitness [or] incompetence/ [other particular risk]] created a particular risk to others;
4. That [name of employee]’s [unfitness [or] incompetence/[other particular risk]] harmed [name of plaintiff]; and
5. That [name of employer defendant]’s negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]’s harm.
   
   

New December 2009; Revised December 2015, June 2016

Nakase Wade | California Business Lawyers & Corporate Lawyers

Directions for Use

Give this instruction if the plaintiff alleges that the employer of an employee who caused harm was negligent in the hiring, supervision, or retention of the employee after actual or constructive notice that the employee created a particular risk or hazard to others. For instructions holding the employer vicariously liable (without fault) for the acts of the employee, see the Vicarious Responsibility series, CACI No. 3700 et seq.

Include optional question 1 if the employment relationship between the defendant and the negligent person is contested. (See Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1185-1189 [183 Cal.Rptr.3d 394].) It appears that liability may also be imposed on the hirer of an independent contractor for the negligent selection of the contractor. (See Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 662-663 [109 Cal.Rptr. 269].) Therefore, it would not seem to be necessary to instruct on the test to determine whether the relationship is one of employer­employee or hirer-independent contractor. (See CACI No. 3704, Existence of “Employee” Status Disputed.)

Choose “became” in elements 2 and 3 in a claim for negligent retention.

In most cases, “unfitness” or “incompetence” (or both) will adequately describe the particular risk that the employee represents. However, there may be cases in which neither word adequately describes the risk that the employer should have known about.

Sources and Authority

• “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [58 Cal.Rptr.2d 122].)
• “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139 [91 Cal.Rptr.3d 864].)
• “[Plaintiff] brought several claims against [defendant employer], including negligent hiring, supervising, and retaining [employee], and failure to warn. To prevail on his negligent hiring/retention claim, [plaintiff] will be required to prove [employee] was [defendant employer]’s agent and [defendant employer] knew or had reason to believe [employee] was likely to engage in sexual abuse. On the negligent supervision and failure to warn claims, [plaintiff] will be required to show [defendant employer] knew or should have known of [employee]’s alleged misconduct and did not act in a reasonable manner when it allegedly recommended him to serve as [plaintiff]’s Bible instructor.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591 [201 Cal.Rptr.3d 156], internal citations omitted.)
• “[A] negligent supervision claim depends, in part, on a showing that the risk of harm was reasonably foreseeable. [Citations.] ‘Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries.’ [Citations.] ‘ “It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities …………………………………… Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of [adequate] safeguards.” ’ ” (D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 229 [247 Cal.Rptr.3d 127], internal citations omitted.)
• “Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [52 Cal.Rptr.3d 376].)
• “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340 [78 Cal.Rptr.2d 525].)
• “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” (V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902 [189 Cal.Rptr.3d 570].)
• “Apparently, [defendant] had no actual knowledge of [the employee]’s past. But the evidence recounted above presents triable issues of material fact regarding whether the [defendant] had reason to believe [the employee] was unfit or whether the [defendant] failed to use reasonable care in investigating [the employee].” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 843 [10 Cal.Rptr.2d 748]; cf. Flores v. AutoZone West Inc. (2008) 161 Cal.App.4th 373, 384-386 [74 Cal.Rptr.3d 178] [employer had no duty to investigate and discover that job applicant had a juvenile delinquency record].)
• “We note that the jury instructions issued by our Judicial Council include ‘substantial factor’ causation as an element of the tort of negligent hiring, retention, or supervision. The fifth element listed in CACI No. 426 is ‘[t]hat [name of employer defendant]’s negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]’s harm.’ [H CACI No. 426 is consistent with California case law on the causation element of [plaintiff]’s claim against [employer].” (Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co., Inc. (2018) 5 Cal.5th 216, 224, fn.5 [233 Cal.Rptr.3d 487, 418 P.3d 400], original italics.)
• “A claim that an employer was negligent in hiring or retaining an employee­driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver. (See Judicial Council of Cal. Civ. Jury Instns. (2011) CACI No. 426.) That same awareness underlies a claim for negligent entrustment. (See CACI No. 724.) In a typical case, like this, the two claims are functionally identical.” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1157 [126 Cal.Rptr.3d 443, 253 P.3d 535].)
• “The language of the instruction used specifies the particular risk at issue in this case. That is consistent with the model instruction, which prompts the user to ‘specify other particular risk,’ as well as the Directions for Use for CACI No. 426, which state: ‘In most cases, “unfitness” or “incompetence” (or both) will adequately describe the particular risk that the employee represents. However, there may be cases in which neither word adequately describes the risk that the employer should have known about.’ It is also consistent with the case law, discussed above, holding that a claim for negligent supervision requires a showing of foreseeability of a particular risk of harm.” (Z., supra, 35 Cal.App.5th at p. 235, original italics.)
• “[I]f an employer admits vicarious liability for its employee’s negligent driving in the scope of employment, ‘the damages attributable to both employer and employee will be coextensive.’ Thus, when a plaintiff alleges a negligent entrustment or hiring cause of action against the employer and the employer admits vicarious liability for its employee’s negligent driving, the universe of defendants who can be held responsible for plaintiff’s damages is reduced by one—the employer—for purposes of apportioning fault under Proposition 51. Consequently, the employer would not be mentioned on the special verdict form. The jury must divide fault for the accident among the listed tortfeasors, and the employer is liable only for whatever share of fault the jury assigns to the employee.” (Diaz, supra, 41 Cal.4th at p. 1159, internal citations omitted.)
• “[W]hen an employer . . . admits vicarious liability, neither the complaint’s allegations of employer misconduct relating to the recovery of punitive damages nor the evidence supporting those allegations are superfluous. Nothing in Diaz or Armenta suggests otherwise.” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1264 [218 Cal.Rptr.3d 664].)
• “[A] public school district may be vicariously liable under [Government Code] section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.” (A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879 [138 Cal.Rptr.3d 1, 270 P.3d 699].)

• “[P]laintiff premises her direct negligence claim on the hospital’s alleged failure to properly screen [doctor] before engaging her and to properly supervise her after engaging her. Since hiring and supervising medical personnel, as well as safeguarding incapacitated patients, are clearly within the scope of services for which the hospital is licensed, its alleged failure to do so necessarily states a claim for professional negligence. Accordingly, plaintiff cannot pursue a claim of direct negligence against the hospital.” (So v. Shin (2013) 212 Cal.App.4th 652, 668 [151 Cal.Rptr.3d 257].)
• “[Asking] whether [defendant] hired [employee] was necessary given the dispute over who hired [employee]—[defendant] or [decedent]. As the trial court noted, ‘The employment was neither stipulated nor obvious on its face.’ However, if the trial court began the jury instructions or special verdict form with, ‘Was [employee] unfit or incompetent to perform the work for which he was hired,’ confusion was likely to result as the question assumed a hiring. Therefore, the jury needed to answer the question of whether [defendant] hired [employee] before it could determine if [defendant] negligently hired, retained, or supervised him.” (Jackson, supra, 233App.4th at pp. 1187-1188.)
• “Any claim alleging negligent hiring by an employer will be based in part on events predating the employee’s tortious conduct. Plainly, that sequence of events does not itself preclude liability.” (Liberty Surplus Ins. Corp., supra, 5 Cal.5th at p. 225, fn. 7.)
• “We find no relevant case law approving a claim for direct liability based on a public entity’s allegedly negligent hiring and supervision practices………………………………………………… Here, . . . there is no statutory basis for declaring a governmental entity liable for negligence in its hiring and supervision practices and, accordingly, plaintiffs’ claim against County based on that theory is barred     ” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252-253 [67 Cal.Rptr.3d 253].)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1350

Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-I, Employment Torts and Related Claims—Negligence, ^5:800 et seq. (The Rutter Group)

3 California Torts, Ch. 40B, Employment Discrimination and Harassment, § 40B.21 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for Employee’s Torts, § 248.12 (Matthew Bender)

10 California Points and Authorities, Ch. 100A, Employer and Employee: Respondeat Superior, § 100A.22 (Matthew Bender)