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 legal principle is called negligent hiring, negligent supervision, or negligent retention of an employee.1
This is important because employees often lack the assets to pay for all of your compensatory damages in a personal injury claim. Employers have deeper pockets and are more likely to have insurance to cover their employees’ wrongful actions.
Common examples of negligent supervision/hiring/retention cases include:
- A ride-sharing company hires a driver with a violent criminal history who then assaults a passenger;
- A teacher molests a child after the school district ignored parent complaints of their inappropriate behavior;
- A patient slips and falls during an earthquake at a nursing home with no evacuation protocols; or
- Diners get food poisoning in a restaurant that fails to mandate that its food handlers wash their hands.
To help you better understand the law, our California personal injury lawyers discuss:
- 1. Elements
- 2. Who is considered an employee in California?
- 3. When are employers liable?
- 4. Special Duties of Schools and Ride-Sharing Companies
- Additional Reading
Employers whose incompetent workers cause harm could be liable in a negligent supervision claim.
1. Elements
The elements of negligent hiring, supervision, or retaining an employee are spelled out in California Jury Instruction “CACI” 426. To prove a defendant was liable, you must prove by a preponderance of the evidence the following four elements:
- The employee was unfit or incompetent to perform the work for which they were 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 caused you harm; and
- The defendant’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing your harm.2
Note this is different from California’s respondeat superior law, which assigns employers vicarious liability for an employee’s wrongful acts. Negligent hiring/supervising/retaining holds employers directly liable for their own failure to protect others.3
2. Who is considered an employee in California?
Employees consist of anyone subject to the direct control of an employer. They include not only salaried employees but also:
- Temporary workers,
- Independent contractors,
- Per diem overflow workers,
- Agents, and
- Third parties such as security guards.
In claims for negligent supervision of children, employees often include:
- nannies,
- caregivers,
- camp counselors,
- daycare providers,
- babysitters, or
- youth group leaders.
Employers must have known that the worker was unfit in order to be liable for the cause of action of “negligent hiring”.
3. When are employers liable?
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 they were 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.
4. Special Duties of Schools and Ride-Sharing Companies
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 conduct a criminal background check of their drivers.5 They may not hire a driver with a history of certain crimes, including violent crimes.
Example: Alex applies to drive for a taxicab company even though he has a three-year old conviction for misdemeanor battery. The employee handling Alex’ application overlooks the conviction hires him.
After a passenger starts arguing with him, Alex punches the passenger in the face. The passenger sues Alex for his medical bills, lost wages, pain and suffering and emotional distress, as well as punitive damages. He also sues the taxi company because the taxi company was negligent in hiring Alex.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Civil Liability for Negligent and Inadequate Training: A Private Security Problem – Journal of Contemporary Criminal Justice.
- Negligent Liability Suits Emanating from the Failture to Provide Adequate Supervision: A Critical Issue for Teachers and School Boards – Journal of Law and Education.
- Employer Liability of Negligent Hiring of Ex-Offenders – St. Louis University Law Journal.
- Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability – Chicago Kent Law Review.
Legal references:
- Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038.
- CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 218 Cal.Rptr.3d 664; Liberty Surplus Ins. Co. v. Ledesma & Meyer Construction Co, (2018) 5 Cal.5th 216; Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156; Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654; Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566; D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210; Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333; Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828; Flores v. AutoZone West Inc. (2008) 161 Cal.App.4th 373; Diaz v. Carcamo (2011) 51 Cal.4th 1148; So v. Shin (2013) 212 Cal.App.4th 652; De Villers v. County of San Diego (2007) 156 Cal.App.4th 238; Sandoval v. Qualcomm Incorporated (2021) ; Brennon B. v. Superior Court (2022) . See also Government Code Secs. 815.4, 815.2 and 835. Judicial Council of California Civil Jury Instructions (2024 edition) “CACI” 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 - Delfino v. Agilent Techs., Inc. (2006) 145 Cal. App. 4th 790.
- C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861.
- California Public Utilities Code 5445.2.