Negligent Hiring, Training and Supervision (Retention)

As you could see in the Harris case, the plaintiff asserted a negligent hiring and supervising claim. With any negligence claim, regardless of type, the plaintiff must establish that the defendant owed them a duty of care (then show a breach, causation and harm). For this we turn to the Restatement Second of Torts § 317, which tells us that the plaintiff must show that the employer knew or should have known of the need to exercise control of its employee:

(1) What was the employee’s conduct prior to the incident in question, and was it of such a nature that would indicate a propensity for violence; and

(2) Did the employer know or, in the exercise of reasonable care should it have known of the employee’s prior conduct?

💡How did the Harris court apply this test?

You can see this claim show up in various ways. It could simply be a negligent hiring claim alone or it could be a combination of these like you see in the Harris case. Sometimes plaintiffs bring a negligent retention claim. For instance, if an employer discovers that one of its employees is violent – maybe through domestic abuse arrests, then it should be liable for violence that occurs at the hand of said employee.

The plaintiff will have to show that a more thorough investigation by the employer would have revealed that the employee had a history of violent or harassing conduct. The focus of the inquiry is on whether the harm was reasonably foreseeable by the employer. Note that when a plaintiff has no direct relationship with the employer, the duty owed may be inferred from the general duty imposed on all persons not to place others at risk through their actions.