Chapter 1-9 Negligent Hiring

• Jurisdiction: United States

1-9 Negligent Hiring

1-9:1 Introduction

A claim for negligent hiring, retention, and supervision "is not the type of tort that depends on proof of an employee performing a negligent or intentional act within the course of his employment. This tort arises instead from the simple negligence of the employer. An employer is negligent if the employer hires, retains, or supervises an employee whom the employer knows, or by the exercise of reasonable care should have known, is unfit or incompetent, and whose unfitness or incompetence creates an unreasonable risk of harm to others because of the employee's job-related duties."²⁶⁴

1-9:1.1 Related Causes of Action

Negligence, Negligence per se, Negligent Entrustment, Negligent Referral

MUST READ CASE

Wansey v. Hole, 379 S.W.3d 246 (Tex. 2012)

1-9:2 Elements

(1) The defendant has a legal duty to hire competent employees.²⁶⁵

• The existence of a duty is a question of law for the court to decide.²⁶⁶
• The duty of an employer to hire competent employees has been routinely recognized, and has been observed to be "absolute and nondelegable."²⁶⁷
• "An employer owes a duty to its other employees and to the general public to ascertain the qualifications and competence of the employees it hires, especially when the employees are engaged in occupations that require skill or experience and that could be hazardous to the safety of others."²⁶⁸
• The Texas Supreme Court has "never expressly set out what duty an employer has in hiring employees, or said that a negligent hiring claim requires more than just negligent hiring practices."²⁶⁹
• A party engaging an independent contractor is required to use ordinary care in hiring the contractor.²⁷⁰

(2) The defendant breached the duty to hire competent employees.²⁷¹

• An employer is liable for negligent hiring if it "hires an incompetent or unfit employee whom it knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others."²⁷²

(3) Damages to the plaintiff were proximately caused as a result of the defendant's breach.²⁷³

• For an employer to be found liable for negligently hiring, retaining, or supervising its employee, the plaintiff must "suffer some damages from the foreseeable misconduct of an employee hired pursuant to the defendant's negligent practices."²⁷⁴
• A claim of negligent hiring, supervision, or retention is not dependent upon a finding that the employee was acting in the course and scope of his employment when the tortious act occurred,²⁷⁵ but there must be some connection between the plaintiff's injury and the fact of employment.²⁷⁶
• "In a negligent-hiring or negligent-entrustment claim, a plaintiff must show that the risk that caused the entrustment or hiring to be negligent also proximately caused plaintiff's injuries," rather than simply furnishing the employment which made the injury possible.²⁷⁷
• "The proximate cause element of a negligent hiring claim consists of cause in fact and foreseeability. A plaintiff establishes cause in fact if she demonstrates that the negligent act or omission was a substantial factor

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