§ 6.7.5 DUTIES OWED TO THIRD PERSONS

• Jurisdiction: Arizona

§ 6.7.5 Duties Owed to Third Persons. An employer will be liable only if the wrongful activities are foreseeable, and the activities will be foreseeable only if the employer knew, or in the exercise of reasonable care should have known, of the risk that resulted in the injury or harm.¹⁴ In a negligence action, the plaintiff must establish that the defendant had a duty to conform to a particular standard of conduct to protect the plaintiff against an unreasonable risk of harm.¹⁵

An employer is not negligent unless it fails to exercise that degree of reasonable care that would be exercised by a person of ordinary prudence under the existing circumstances in view of the probable danger of injury.¹⁶ The burden of proof is on the plaintiff to prove: (1) the employee is unfit; (2) the probable danger; (3) the employer knew or should have known of the employee's unfitness and the danger (i.e., foreseeability); and (4) the employer's negligence (i.e., hiring or supervising) was the proximate cause of the plaintiff's injury.¹⁷

In order for an employer to be held liable for negligent hiring, retention or supervision, the employee must have committed a tort.¹⁸ Jurisdictions are split on the question of whether an employer's negligence in hiring an employee is a question of fact for the jury¹⁹ or one to be decided as a matter of law by the courts.²⁰

In Ruelas v. Staff Builders Personnel Services, Inc.,²¹ the plaintiff brought claims against the defendant general employer, Staff Builders, for vicarious liability and negligent hiring/retention to recover for injuries inflicted on her as a result of abuse by individual nurses that were provided to Pima County's Posada del Sol Health Care Center by Staff Builders. The trial court granted summary judgment in favor of Staff Builders on both counts. The Arizona Court of Appeals affirmed. On the issue of negligent hiring and retention, it held that Staff Builders, as the general employer, could not be liable for negligently hiring the abusing nurses, because Staff Builders did not actually hire the nurses. Rather, it purchased the staffing agency eleven days before the incident and had not assumed any liability of the prior owner related to the hiring of the nurses. As to the negligent retention claim, the court held that the plaintiff did not present any evidence, even from her own expert, that Staff Builders was negligent in retaining any of the abusing nurses. Although the plaintiff claimed that Staff Builders was negligent by failing to contact a nurse's prior employer, who may have revealed that the nurse had been terminated for violating the "Patient's Bill of Rights," she failed to present any evidence that Staff Builders was negligent in failing to investigate the nurse or that, had an investigation been conducted, the prior employer would have actually provided information about that nurse.²² In addition, the court agreed that Staff Builders was not vicariously liable because the nurses were lent employees under the control of Posada del Sol Health Care Center and not under the control of Staff Builders, the general employer.²³

Recently, in a nonemployment related case, the Arizona Court of Appeals...