Negligent Hiring and Supervision: Suing the Company, Not Just the Employee

Employees who are responsible for your injuries in a personal injury case rarely have the financial means to fully compensate you. This makes it worthwhile to determine whether the company that hired, retained, or failed to oversee the employee properly can be held directly responsible for employer negligence.

Understanding the difference between the main types of employer liability claims for personal injury — vicarious liability and direct liability — and the evidence required to prove them is critical. This distinction can determine whether an injured party receives full compensation or only a fraction of the claim’s value. For advice on how to proceed, consult an experienced personal injury attorney near you.

Two Paths to Employer Liability: Vicarious vs. Direct

In employer liability cases, there are two general paths:

• Vicarious liability, where the company answers for the employee’s conduct
• Direct liability, where the company answers for its own negligent conduct

Vicarious Liability (Respondeat Superior)

The Latin term for vicarious liability is respondeat superior, which means, “Let the master answer.” In such cases, the employer is held vicariously liable for an employee’s wrongful acts committed within the “scope of employment.” For vicarious liability, there’s no requirement of employer fault. Liability flows from the employment relationship itself.

For the scope of employment to apply, courts usually ask the following questions:

• Was the employee performing assigned duties?
• Did the conduct occur during work hours or at a work location?
• Was the act intended, at least in part, to serve the employer?

Courts do not automatically hold employers liable for every act an employee commits during work hours and at a work location. There are limits. Courts often find that intentional misconduct, such as assault, theft, or sexual abuse, falls outside the scope of employment. Similarly, courts can be reluctant to hold employers liable for “frolics and detours” that can break the chain of causation.

Direct Corporate Liability

Direct corporate liability holds an employer liable for its own negligence in managing its workforce. The three primary claims are as follows:

• Negligent hiring. Negligent hiring claims address what occurs during the hiring process. These claims allege that the company failed to use reasonable care when screening and selecting the employee.
• Negligent retention. The company learned, or should have learned, that the employee was unfit and kept them anyway.
• Negligent supervision. In a negligent supervision claim, a plaintiff alleges that the company failed to reasonably monitor, train, or control the employee.

These claims for an unfit employee can reach conduct outside the scope of employment. They fill the gap left by respondeat superior.

Comparison of Vicarious Liability vs. Direct Liability

Both theories of liability for employers, vicarious liability and direct liability, involve employees, but they address very different issues.

• Whose fault. Vicarious liability arises from the employee’s fault. Direct liability is just the opposite; it results from the employer’s fault.
• Scope of employment required. Vicarious liability requires the employee to act within the scope of employment, whereas direct liability does not. When direct liability applies, it can encompass a wider range of situations.
• Covers intentional acts. Direct liability can often cover intentional acts, while vicarious liability can cover intentional acts when they fall within the scope of employment.
• Types of evidence. Evidence for vicarious liability cases centers on the employee’s conduct, while direct liability claims focus on the employer’s acts or inaction.

These cases are fact-intensive, and the law varies by jurisdiction.

What Plaintiffs Must Prove

In any case, the evidence you present largely determines the outcome. You must know what must be proved.

Core Negligence Elements as They Apply To Employers

In general, the elements of negligence are as follows:

• Duty. The employer owed a reasonable duty of care to people foreseeably exposed to its employees, such as customers, patients, tenants, students, or the motoring public.
• Breach of duty. The employer failed to meet the relevant standard of care.
• Causation. The employer’s failure proximately caused the injury. The harm must connect the unfit or incompetent behavior with something the employer should have discovered.
• Damages. The plaintiff suffered actual, compensable harm, such as medical expenses, lost wages, emotional distress, property damages, or pain and suffering.

The “Knew or Should Have Known” Standard

To succeed, the plaintiff must show the employee’s unfitness relates to the type of harm that occurred. For example, a prior shoplifting claim may not make a later car accident foreseeable, but a record of reckless driving would.

You must show that the employer knew or should have known the employee could engage in the types of behavior that caused your injuries. You can show this with direct or indirect evidence.

Evidence of Breach: Failed Background Checks

What is reasonable depends on the role. Higher-risk positions, such as the following, require deeper screening:

• Jobs involving vulnerable populations (children, elderly, patients)
• Jobs with access to homes or private property
• Jobs involving vehicles, weapons, or controlled substances

These jobs require thorough screening, including criminal background checks and reference checks. Common screening failures include not obtaining a criminal background check when warranted. Ignoring motor vehicle records for driving positions and overlooking gaps or inconsistencies in an application are also screening failures.

Industry and regulatory standards provide rules for certain industries, such as for commercial trucking or healthcare licensing. These rules and regulations can help define what “reasonable” screening looks like. However, screening is not unlimited; laws like fair-chance hiring laws and FCRA requirements shape what “reasonable” screening looks like.

Evidence of Breach: Ignored Workplace Red Flags

Employers can face a negligent hiring or supervision claim when they ignore red flags. Common red flags include:

• Prior complaints from co-workers or customers
• Documented disciplinary actions or warnings
• Previous incidents of aggression, harassment, or impairment
• Lapses in required training or certifications
• Inadequate staffing or negligent training of staff members

Any number of scenarios can create red flags. It depends on the specific circumstances.

Building the Evidentiary Record

Proving your case involves building the evidentiary record. This means that you will need evidence to support your claim. In negligent hiring and supervision cases, this means collecting records such as personnel files, employee training records, policies, and screening records. Internal communications are also important. These include internal emails, incident reports, and HR investigations.

When witnesses can support your theory of the case, they also become important to the evidentiary record. Testimony from supervisors and coworkers can become instrumental in supporting your claim. Depending on the specific facts of your case, expert testimony or industry hiring and supervision standards can become key evidence.

Advantages of Naming the Company Directly

To increase your chances of receiving compensation for your injuries, consider all potentially responsible parties. When a potential defendant is a company, adding it to the suit can offer several benefits.

• Access to greater insurance coverage
• Broader discovery
• Potential for punitive damages when warranted by the facts
• Settlement leverage and jury perception

A personal injury lawyer can help you make the strategic decisions needed to build a strong case, meet filing deadlines, and apply the applicable law.

In some states, if the employer admits that the employee acted within the scope of employment, direct negligence claims may be dismissed as duplicative. Other states allow both claims to proceed together, especially where punitive damages are alleged.

Consult a Personal Injury Lawyer

If an employee injures you or a loved one and you want to hold an employer responsible, naming the company directly can increase your chances of a favorable outcome. When you sue a company, it will defend itself vigorously, so you should have an experienced advocate on your side.

An experienced personal injury attorney near you can help you build the strongest case. Use the Super Lawyers Directory to get started today.