Definition.
“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.) Thus, an employer in California can be directly liable for its own failure to protect others. (Delfino v. Agilent Techs., Inc. (2006) 145 Cal.App.4th 790.)
An employer may be liable for injuries caused by an unfit employee if the employer knows or has reason to know that an employee hired or retained is incompetent or unfit to perform the duties required of the job, or if the employer fails to use reasonable care to discover the employee’s incompetence or unfitness before hiring the employee. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-65;Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 837; see also John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438; Kimberly M. v. Los Angeles Unified School Dist. (1989) 215 Cal.App.3d 545.)
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. v. Ledesma & Meyer Construction Co., Inc. (2018) 5 Cal.5th 216, 225, fn.7.)
Elements Needed to Prove Negligent Hiring, Supervision, or Retention Employee; CACI No. 426
Paula claims that she was harmed by Andy and that Daniel is responsible for that harm because Daniel negligently hired/supervised/or retained Terry as an employee. To establish this claim, Paula must prove all of the following: (1) that Daniel hired Terry; (2) that Terry was unfit or incompetent to perform the work for which he was hired; (3) that Daniel knew or should have known that Terry was unfit or incompetent and that this unfitness/incompetence created a particular risk to others; (4) that Terry’s unfitness/incompetence harmed Paula and that Daniel’s negligence in hiring/supervising/or retaining Terry was a substantial factor in causing Paula’s harm.
Free Lawyer Practice Guides with over 100 Causes of Actions, go here: Laws Practice Guides
Element 1: Employer Hired, Supervised, or Retained
To be liable, the employer must have hired, supervised, or retained the incompetent or unfit employee. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-65; Underwriters Ins. Co. v. Purdie (1983) 145 Cal.App.3d 57, 69.)
An employer may be liable for the negligent selection of an independent contractor in the same way that an employer may be directly liable for the acts of its employees. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544.)
An employer may be liable for failing to use reasonable care to discover the employee’s incompetence or unfitness before hiring him. (SeaRiver Maritime, Inc. v. Industrial Med. Servs. (N.D. Cal. 1997) 983 F. Supp. 1287.)
The plaintiff stated a cause of action against the employer who had retained another employee after the plaintiff had notified the employer that the other employee had engaged in sexual harassment. (Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1426.)
Employer, having been placed on notice that priest may have acted sexually inappropriate with minor males, negligently retained priest by permitting priest access to minor males in situations where there was a potential for sexual abuse or at least for failing to warn parents of priest’s known propensity for engaging in sexual conduct with boys. (Mark K. v. Roman Catholic Archbishop (1998) 67 Cal.App.4th 603.)
“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.)
Element 2: Incompetent or Unfit Employee
The employee who caused injury must be incompetent or unfit for the job. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-65; Underwriters Ins. Co. v. Purdie (1983) 145 Cal.App.3d 57, 69 citing Restatement (Second) of Agency § 213, comment d [an employee is incompetent or unfit if he or she is likely to harm others in view of the work entrusted to him or her, or if he or she is reckless or vicious].)
An employee who had a propensity for violence was incompetent and unfit.(Underwriters Ins. Co. v. Purdie (1982) 145 Cal.App.3d 57, 69.)
Employees who had a known propensity for drinking and violence were incompetent and unfit. (Golden West Broad. v. Superior Court (1981) 114 Cal.App.3d 947.)
An employee who was a sexual harasser was incompetent and unfit. (Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420.)
An employee who was a sexual molester was incompetent and unfit. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-67; see also Mark K. v. Roman Catholic Archbishop (1998) 67 Cal.App.4th 603.)
Element 3: Employer’s Knowledge
A plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard that particular harm occurs. (See Z.V. v. Cnty. of Riverside (2015) 238 Cal.App.4th 889, 902; see also Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)
“Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-65.)
Plaintiff’s Burden to Prove Knowledge
The plaintiff bears the burden of establishing that the employer knew or should have known of the employee’s incompetence or unfitness. (Golden West Broadcasters v. Superior Court (1981) 114 Cal.App.3d 947, 954.)
Negligent Supervision
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. (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 156–157 [based on what mother who hosted sleepover of daughter’s friends actually knew at the time of crime against daughter’s friend by third parties, there could be no liability for negligent supervision]; Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1080 [“For reasons we shall explain, we hold that notwithstanding the special relationship between the Romeros and the teenage invitees, the Romeros did not owe a duty of care to supervise Ryan at all times during her visit, to warn her, or to protect her against Joseph’s sexual assault, because there is no evidence from which the trier of fact could find that the Romeros had prior actual knowledge of Joseph’s propensity to sexually assault female minors.”]; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395 [rejecting claim against Boy Scouts of negligent “selection, supervision and retention” of scoutmaster where “there was no information accessible to the Scouts that would cause them to suspect …” that the scoutmaster “had a propensity to molest children”].)
“[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, internal citations omitted.)
An employer’s knowledge that an employee used “serious mind-altering drugs” and used his position of authority to extract or to coerce sexual favors is not knowledge that the employee would first drug and then rape a potential employee. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054-55.)
An employer’s knowledge that the employee priest had not kept vows of celibacy would not give the employer reason to believe that the priest would commit sexual crimes against a minor. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1566-67.)
An employer’s knowledge that a priest may have acted, or attempted to act, sexually inappropriate with minor males provided the employer with a more than adequate basis for being suspicious that priest would sexually abuse other minor males. (Mark K. v. Roman Catholic Archbishop (1998) 67 Cal.App.4th 603.)
An employer rental car agency was liable for injuries caused by an agent who assaulted a customer after a dispute over a security deposit. The employer had known that the agent had a “belligerent nature,” had yelled at customers to “get the hell out,” had problems getting along with subordinates, and had previously engaged in a fight outside the company’s premises which the company failed to investigate. (Greenfield v. Spectrum Investment Corp. (1985) 174 Cal.App.3d 111.)
A parishioner’s brother could maintain a negligent hiring cause of action against the church for the pastor’s sexual molestation of the parishioner. The church committee, which recommended the pastor’s appointment, had been aware of some difficulty with the pastor’s reappointment to active ministry and understood he had been on a sabbatical of some kind but failed to investigate or make any inquiry regarding the pastor’s fitness to serve as its minister. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 832.)
An employer’s knowledge that an employee had been convicted of sex offenses against young males and that employee’s job duties might entail some degree of contact with such persons would not, as a matter of law, constitute a breach of employer’s limited duty to exercise reasonable care in his selection of employees. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213.)
Summary judgment on negligent hiring claim in sexual harassment lawsuit appropriate where employee failed to demonstrate that employer had any information suggesting individual defendant employee had a propensity to harass women. (Lamb v. Household Credit Servs. (N.D. Cal. 1997) 956 F. Supp. 1511.)
Element 4: Causation and Damages
The proximate cause of injury must be the employee’s incompetence or unfitness. (Evan F. v. Hughson Methodist Church (1992) 8 Cal.App.4th 828, 837.)
An employer will not be liable for injuries unless the employer’s negligence in hiring or retaining the employee was the proximate cause of the injuries. (Evan F. v. Hughson Methodist Church (1992) 8 Cal.App.4th 828, 837 [church employer was not liable to parishioner’s sister who was molested by her brother who had previously been molested by the pastor, because the pastor did not himself molest the sister].)
The employer is liable only if the harm caused by the employee was related to the employee’s unfitness for his or her job. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-65.)
“[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.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.)
An employer will not be liable for injuries unless the injuries arose out of the employee’s performance of work-related duties or responsibilities. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1215 [“An employer is not charged with guaranteeing the safety of anyone his employee might incidentally meet while on the job against injuries inflicted independent of the performance of work related functions.”].)
“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.)
Remedies
Compensatory Damages
Damages are awarded to compensate a plaintiff for all of the damages suffered as a legal result of the defendant’s wrongful conduct. (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.)
Punitive Damages
California Civil Code section 3294, subdivision (b) does not authorize an award of punitive damages against an employer for the employee’s wrongful conduct. It authorizes an award of punitive damages against an employer for the employer’s own wrongful conduct. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1154.)
Statute of Limitations
Prior to 2003, the statute of limitations for personal injury actions was one year from the date of injury. (Cal. Code Civ. Proc., § 340.) Effective January 1, 2003, the new Code of Civil Procedure §335.1 extends the statute of limitations to two years. (See Human Song v. Cty. of Santa Clara, No. 5:11-cv-04450-EJD, 2013 WL 6225263, at *4 (N.D. Cal. Nov. 25, 2013) [two-year statute of limitations for negligent hiring, training, and retention claims in employment action].)
Affirmative Defenses
Workers’ Compensation Preemption
” ‘[E]mployment discrimination cases … by their very nature, involve several causes of action arising from the same set of facts. A responsible attorney handling an employment discrimination case must plead a variety of statutory, tort and contract causes of action in order to fully protect the interests of his or her client.’ (Citation omitted). Although the common law theories do not per se ‘relate to discrimination,’ they are nonetheless a standard part of a plaintiff’s arsenal in a discrimination case.”)). (Cal. Lab. Code, § 3600 et seq.; see also Coit Drapery Cleaners, v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595 [negligent supervision claim was barred by workers’ compensation exclusivity principles, except to extent based on intentional acts of sexual harassment].)