Negligent entrustment
Encyclopedia
Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent
in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment
and vicarious liability
, the concepts are distinct grounds of liability.
In order for such a duty to exist, the injury to the claimant must be "reasonably foreseeable", meaning, for example, that the type of employment must be one in which an unfit employee could cause harm of the type which occurred, and the claimant is the type of person to whom such harm would be a "reasonably foreseeable consequence".
in the workplace may have a cause of action for negligent hiring on the part of her employer if she can show that the employer was aware of the harasser's termination from a previous position for the same behaviour.
One preventive measure for negligent hiring is to perform a reasonable investigation on potential employees. This may include conducting interviews, verifying work and educational histories, checking references and conducting a background check
on all applicants who have accepted an offer of conditional hire, and if an adverse assessment is found, to deny employment to such an applicant.
Note that simply conducting a criminal background check on an applicant may not be a sufficient investigation. In Minnesota
, for example, such a check was determined to be insufficient by the court in Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn.
1983). This will not guarantee the employer will not be held liable, but it will show that the employer used a diligent search to screen potential harassers from the workplace, and will assist the employer in demonstrating that it took reasonable care in hiring.
It is important to also note that, in the United States
, background checks for job applicants are subject to the Fair Credit Reporting Act
(2003). If an adverse assessment is found in an employment screen, the applicant has the right to dispute the report.
Negligent supervision is closely related, as it occurs where a party fails to reasonably monitor or control the actions of an employee. A variation of negligent retention or supervision is negligent training, which arises where the employer's training of the employee fails to prevent the employee from engaging in the acts that injure the claimant, or fails to remediate a pattern of behaviour which leads to an injury. Suits for negligent retention often plead negligent supervision or training as an alternate theory, as the employer who knows of an employee's improper conduct should either terminate that employee, or take steps to penalise that conduct and/or train the employee not to engage in that conduct.
arises where the entrustor is held liable for negligence
because they negligently provided the entrustee with a dangerous instrument, and the entrusted party caused injury to a third party with that instrument.
Where such a claim is brought against an employer, the employer will be held liable if the entrustee's record was known, or would have been easily discoverable, to the employer. For example, if a bus
company hires a driver who has a record of reckless driving, of which the company could have learned through a search of publicly available records, the company would be liable for the negligent entrustment of the bus to that driver, should the driver cause an accident.
Negligent entrustment differs from negligent hiring, retention, supervision, and training in two key respects.
is a separate theory of liability, which provides that an employer is liable for the torts of an employee under an agency
theory, even if the employer did nothing wrong. The principle is that the acts of an agent of the company are assumed, by law, to be the acts of the company itself, provided the tortfeasor was acting within the course of his employment.
By contrast, each of the above negligence theories requires proof of actual negligence on part of the employer before the injury occurred, for example when the employee was first hired.
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment
Negligent entrustment
Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act...
and vicarious liability
Vicarious liability
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...
, the concepts are distinct grounds of liability.
Negligence
As with all negligence claims, the claimant must prove:- That the defendant (in this case, the employer) owed them a duty of careDuty of careIn tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
; - That this duty was breached; and
- That the claimant was injured as a result of the breach. (see Causation (law)Causation (law)Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
; Causation in English lawCausation in English lawCausation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....
).
In order for such a duty to exist, the injury to the claimant must be "reasonably foreseeable", meaning, for example, that the type of employment must be one in which an unfit employee could cause harm of the type which occurred, and the claimant is the type of person to whom such harm would be a "reasonably foreseeable consequence".
Negligent hiring
Negligent hiring may be found where the employee (the tortfeasor) had a reputation or record that showed his propensity to misuse the kind of authority given by the employer, and this record would have been easily discoverable by the employer, had the employer exercised 'due diligence'. For example, a victim of sexual harassmentSexual harassment
Sexual harassment, is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In some contexts or circumstances, sexual harassment is illegal. It includes a range of behavior from seemingly mild transgressions and...
in the workplace may have a cause of action for negligent hiring on the part of her employer if she can show that the employer was aware of the harasser's termination from a previous position for the same behaviour.
Negligent hiring preventive measures
In the sexual harassment example described above, the employer may be held liable for negligent hiring if the harasser had a previous history of harassment. This is because an employer has an obligation to its employees and others who will come in contact with them to provide and safe and productive working environment.One preventive measure for negligent hiring is to perform a reasonable investigation on potential employees. This may include conducting interviews, verifying work and educational histories, checking references and conducting a background check
Background check
A background check or background investigation is the process of looking up and compiling criminal records, commercial records and financial records of an individual....
on all applicants who have accepted an offer of conditional hire, and if an adverse assessment is found, to deny employment to such an applicant.
Note that simply conducting a criminal background check on an applicant may not be a sufficient investigation. In Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
, for example, such a check was determined to be insufficient by the court in Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn.
Minnesota Supreme Court
The Minnesota Supreme Court is the highest court in the U.S. state of Minnesota and consists of seven members. The court was first assembled as a three-judge panel in 1849 when Minnesota was still a territory. The first members were lawyers from outside of the region who were appointed by...
1983). This will not guarantee the employer will not be held liable, but it will show that the employer used a diligent search to screen potential harassers from the workplace, and will assist the employer in demonstrating that it took reasonable care in hiring.
It is important to also note that, in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, background checks for job applicants are subject to the Fair Credit Reporting Act
Fair Credit Reporting Act
The Fair Credit Reporting Act is a United States federal law that regulates the collection, dissemination, and use of consumer information, including consumer credit information. Along with the Fair Debt Collection Practices Act , it forms the base of consumer credit rights in the United States...
(2003). If an adverse assessment is found in an employment screen, the applicant has the right to dispute the report.
Negligent retention, supervision, and training
Negligent retention occurs where a party failed to remove an employee from a position of authority or responsibility after it became apparent that the employee was in fact misusing that authority or responsibility in a way that posed a danger to others.Negligent supervision is closely related, as it occurs where a party fails to reasonably monitor or control the actions of an employee. A variation of negligent retention or supervision is negligent training, which arises where the employer's training of the employee fails to prevent the employee from engaging in the acts that injure the claimant, or fails to remediate a pattern of behaviour which leads to an injury. Suits for negligent retention often plead negligent supervision or training as an alternate theory, as the employer who knows of an employee's improper conduct should either terminate that employee, or take steps to penalise that conduct and/or train the employee not to engage in that conduct.
Negligent entrustment compared
Negligent entrustmentNegligent entrustment
Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act...
arises where the entrustor is held liable for negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
because they negligently provided the entrustee with a dangerous instrument, and the entrusted party caused injury to a third party with that instrument.
Where such a claim is brought against an employer, the employer will be held liable if the entrustee's record was known, or would have been easily discoverable, to the employer. For example, if a bus
Bus
A bus is a road vehicle designed to carry passengers. Buses can have a capacity as high as 300 passengers. The most common type of bus is the single-decker bus, with larger loads carried by double-decker buses and articulated buses, and smaller loads carried by midibuses and minibuses; coaches are...
company hires a driver who has a record of reckless driving, of which the company could have learned through a search of publicly available records, the company would be liable for the negligent entrustment of the bus to that driver, should the driver cause an accident.
Negligent entrustment differs from negligent hiring, retention, supervision, and training in two key respects.
- First, negligent hiring and the related torts require the employment itself of the tortfeasor causing the injury, whereas a party can be held liable for negligent entrustment to any person.
- Second, an employer can be found liable for negligent hiring even without provision of any dangerous instrument to the employee. However, where an employer hires an unqualified person to engage in the use of a dangerous instrumentality, as in the above example with the bus driver, the employer may be liable for both negligent entrustment and hiring.
Vicarious liability compared
Vicarious liabilityVicarious liability
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...
is a separate theory of liability, which provides that an employer is liable for the torts of an employee under an agency
Agency (law)
The law of agency is an area of commercial law dealing with a contractual or quasi-contractual, or non-contractual set of relationships when a person, called the agent, is authorized to act on behalf of another to create a legal relationship with a third party...
theory, even if the employer did nothing wrong. The principle is that the acts of an agent of the company are assumed, by law, to be the acts of the company itself, provided the tortfeasor was acting within the course of his employment.
By contrast, each of the above negligence theories requires proof of actual negligence on part of the employer before the injury occurred, for example when the employee was first hired.