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 law is known as California’s law on negligent hiring, supervision, or retention of an employee.1
Unlike California’s respondeat superior law, which assigns employers vicarious liability for an employee’s wrongful acts, California’s negligent hiring, supervision or retention law makes an employer directly liable for its own failure to protect others.2
This can be important because employees often lack the assets to pay for all of an injured person’s compensatory damages in California. Employers have deeper pockets generally and are more likely to have insurance to cover the actions of their employees.
Examples of the cause of action of negligent hiring, retention or supervision of an employee include:
- A taxicab or ride-sharing company hires a driver with a criminal history of assault and the driver commits battery on a passenger;
- A school district ignores parent complaints of a teacher’s inappropriate behavior toward children and the teacher sexually assaults a child;
- A Los Angeles hospital fails to implement appropriate evacuation protocols and during an earthquake, and a patient is critically injured in a slip and fall accident, or
- A restaurant that fails to mandate that its food handlers wash their hands after using the restrooms (giving rise to a lawsuit against the restaurant for food poisoning injuries).
To help you better understand the law as to negligent hiring, supervision or retention of an employee, our California personal injury lawyers discuss, below:
- 1. What are the elements of a negligent hiring, supervision, or retention claim?
- 2. Who is considered an employee in California?
- 3. What knowledge about an employee is required?
- 4. Special duties of teachers, ride-sharing companies and others
To prove a defendant was negligent in hiring, supervising, or retaining an employee in California the plaintiff must show that:
- The employee was unfit or incompetent to perform the work for which he or she was hired;
- The defendant knew or should have known that the employee was unfit or incompetent and that it created a particular risk of harm to others;
- The employee’s unfitness or incompetence harmed the plaintiff; and
- The defendant’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing the plaintiff’s harm.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:
- Temporary workers,
- Independent contractors,
- Per diem overflow workers,
- Agents, and
- Third parties such as security guards.
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.
At other times liability depends on the duty of reasonable care owed to the plaintiff under California law.
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 teachers, school personnel and even other students.4
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, and pain and suffering as well as punitive damages. He also sues the taxi company because the taxi company was negligent in hiring Alex.
If you or someone you know has been injured by the tortious conduct of an employee, we invite you to contact us for a free consultation. There may be more than one party who is liable for your injuries.
We have law offices in Los Angeles, San Diego, San Francisco, and throughout the state. We appear in state trial courts, appellate courts, the California Supreme Court, and United States district courts as well as the Ninth Circuit Court of Appeals.
We also have Las Vegas and Reno offices to serve your needs if you were injured as the result of negligent hiring in Nevada.
Disclaimer: Past results do not guarantee future results.
- Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038.
- Delfino v. Agilent Techs., Inc. (2006) 145 Cal. App. 4th 790.
- California Civil Jury Instructions (CACI) 426. Negligent Hiring, Supervision, or Retention of Employee. See also case law: CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 218 Cal.Rptr.3d 664. See also Liberty Surplus Ins. Co. v. Ledesma & Meyer Construction Co, (2018) 5 Cal.5th 216. See also Doe v. Capital Cities (1996) 50 Cal.App.4th 1038. See also Government Code Secs. 815.4, 815.2 and 835.CACI 426 reads that: [Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by[name of employee] and that [name of employer defendant] is responsiblefor 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] toperform the work for which [he/she/nonbinary pronoun] was hired/[specify other particular risk]];3. That [name of employer defendant] knew or should have knownthat [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/[otherparticular risk]] harmed [name of plaintiff]; and5. 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.
- C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861.
- California Public Utilities Code 5445.2.