How to Protect Yourself from Negligent Hiring: On Monday, April 22, 2002, a large retail department store that operates several locations throughout Florida, and also offers in-home services such as television and appliance repair and duct cleaning, was sued for negligent hiring. The suit alleges that the company failed to conduct a background check of an air-conditioning contractor, who allegedly murdered a customer, and, therefore, violated Florida’s negligent-hiring statute, which gives employers protection from negligent-hiring claims as long as companies perform a background investigation of employees. A record check of the contractor’s background by law enforcement revealed that the contractor had served 12 years in prison for rape.
In order to reduce their liability for negligent hiring lawsuits, employers should implement background investigations of their employees and contractors in accordance with Florida Statute 768.096 - Employer Presumption Against Negligent Hiring. The investigation should include a criminal background check, a reference check, completion of a job application that inquires into prior criminal convictions, a driver’s license check (if applicable), and an interview.
For your information, the following is Florida Statute 768.096 verbatim:
(1) In a civil action for the death of, or injury of damage to, a third person caused by the intentional tort of an employee, such employee’s employer is presumed not to have been negligent in hiring such employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general. A background investigation under this section must include:
(a) Obtaining a criminal background investigation on the prospective employee under subsection
(b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment;
(c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action;
(d) Obtaining, with written authorization from the prospective employee, a check of the driver’s license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or
(e) Interviewing the prospective employee.
(2) To satisfy the criminal-background-investigation requirement of this section, an employer must request and obtain from the Department of Law Enforcement, a check of the information as reported and reflected in the Florida Crime Information Center system as of the date of the request.
(3) The election by an employer not to conduct the investigation specified in subsection (1) does not raise any presumption that the employer failed to use reasonable care in hiring an employee.
Most Cited Cases for Negligent Hiring:
Garcia v. Duffy, 492 So.2d 435
Fla.App.2.Dist.,1986
Employer can be liable for intentional torts of employee under doctrine of negligent hiring or retention only where there is some relationship or nexus from which flows legal duty, express or implied, on part of employer toward particular person injured.
Texas Skaggs, Inc. v. Joannides, 372 So.2d 985
Fla.App.2.Dist.,1979
In order to impose liability on an employer for negligent hiring, training and retention of employee, plaintiff must first show that he was injured by wrongful act of employee.
Garcia v. Duffy, 492 So.2d 435
Fla.App.2.Dist.,1986
To show that employer breached duty to exercise reasonable care in hiring employee, party injured by employee generally must show that employer was required to make appropriate investigation of employee and failed to do so, that appropriate investigation would have revealed unsuitability of employee for particular duty to be performed or for the employment in general, and that it was unreasonable for employer to hire employee in light of information he knew or should have known.
Watson v. City of Hialeah, 552 So.2d 1146
Fla.App.3.Dist.,1989
Although scope of employment is not a pertinent consideration in an action for negligent hiring and retention, proximate cause is an essential element which must be pleaded and proved in any cause of action in tort for negligence, and plaintiff's injuries must be shown to have been brought about by reason of employment of the incompetent servant.
Garcia v. Duffy, 492 So.2d 435
Fla.App.2.Dist.,1986
Employer may be liable for employee's intentional torts under doctrine of "negligent hiring," where employer knew or should have known of employee's unfitness at time he was hired.
Abbott v. Payne, 457 So.2d 1156
Fla.App.4.Dist.,1984
An employer who knows that an employee will have free and independent access to homes of its customers has an obligation to make reasonable efforts to inquire into such employee's past employment and past records, especially in instances where it affirmatively reassures customers that employee is honest, reliable, and trustworthy.
Petrik v. New Hampshire Ins. Co., 379 So.2d 1287
Fla.App.1.Dist.,1979
Negligent hiring and employment are legitimate bases for recovery against employer in tort action.
Malicki v. Doe, 814 So.2d 347
Fla.,2002
To bring a prima facie case for negligent hiring, a plaintiff must demonstrate that: (1) employer was required to make an appropriate investigation of employee and failed to do so; (2) an appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general; and (3) it was unreasonable for the employer to hire the employee in light of the information he knew or should have known.
Malicki v. Doe, 814 So.2d 347
Fla.,2002
Claim for negligent hiring arises when, before employee is hired, employer knows or should know employee is unfit, and liability focuses on adequacy of pre-employment investigation into employee's background, while liability for negligent supervision or retention occurs after employment begins, where employer knows or should know of employee's unfitness and fails to take further action such as investigating, discharge, or reassignment.
Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744
Fla.App.1.Dist.,1991
In negligent hiring or retention cases, ultimate question of liability to be decided is whether it was reasonable for employer to permit employee to perform his job in light of information about employee which employer should have known.
Anderson Trucking Service, Inc. v. Gibson, 29 Fla. L. Weekly D2293
Fla.App.5.Dist.,2004
In order to establish liability based on negligent hiring, the plaintiff must first establish that the employee committed a wrongful act that caused the injury.
American Exp. Travel Related Services, Co., Inc. v. Symbiont Software Group, Inc., 837 So.2d 434
Fla.App.3.Dist.,2002
Economic loss rule did not bar charge card issuer's action for negligent hiring and retention and negligent security against company that sold point-of-sale systems, based on alleged theft of issuer's clients' financial information by seller's employee, as claims pled were totally independent of any contract between seller and buyer.
Malicki v. Doe, 814 So.2d 347
Fla.,2002
Primary distinction between claim for negligent hiring and a claim for negligent supervision or retention concerns time at which employer is charged with knowledge of employee's unfitness.
Abbott v. Payne, 457 So.2d 1156
Fla.App.4.Dist.,1984
An employer can be liable in tort for negligent hiring and employment.
Anderson Trucking Service, Inc. v. Gibson, 29 Fla. L. Weekly D2293
Fla.App.5.Dist.,2004
The reason that negligent hiring is not a form of vicarious liability is that, unlike vicarious liability, which requires that the negligent act of the employee be committed within the course and scope of the employment, negligent hiring may encompass liability for negligent acts that are outside the scope of the employment.
Malicki v. Doe, 814 So.2d 347
Fla.,2002
In context of claim for negligent hiring, the inquiry is focused on whether the specific danger that ultimately manifested itself could have been foreseen at the time of hiring.
Ahern v. Odyssey Re (London) Ltd., 788 So.2d 369
Fla.App.4.Dist.,2001
To prevail on a cause of action for negligent retention and hiring, the plaintiff must prove that (1) the employer was on notice of the potentially harmful propensities of the employee, (2) the plaintiff was within the zone of foreseeable risks created by the employment, and (3) the employer's breach of duty was the proximate cause of the plaintiff's injuries.
Phillips v. Edwin P. Stimpson Co., Inc., 588 So.2d 1071
Fla.App.4.Dist.,1991
Under appropriate circumstance, an employer may be held liable for its negligence in employing or retaining an employee who may constitute a danger to others.
Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744
Fla.App.1.Dist.,1991
Employer did not satisfy duty to evaluate employee's fitness for deliveryman job based upon actual employment experience with employee, as prior employment experience, involving work as laborer on out-of-town construction site and yard work, was not similar.
Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744
Fla.App.1.Dist.,1991
Duty to "independently investigate," for purposes of negligent hiring or retention claims, entails something other than personal interview of employee, obtaining employment application, or evaluation based upon actual observation and experience with employee.
See publication Words and Phrases for other judicial constructions and definitions.
Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744
Fla.App.1.Dist.,1991
Rule that, if employer makes adequate inquiry or otherwise has sufficient basis to rely on employee, there is no need to inquire about possible criminal record is not rule of admissibility of evidence in negligent hiring or retention cases, nor does rule mean that duty of reasonable inquiry can never be said to encompass investigation of employee's criminal record; rather, rule merely provides that employer's failure to check with law enforcement agencies concerning criminal records cannot be considered, in and of itself, as establishing negligence as matter of law.
Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744
Fla.App.1.Dist.,1991
Employer should not be held responsible in actions for negligent hiring or retention for information contained in records of employee's juvenile arrest or dispositions which are confidential and under court seal. F.S.1989, § 39.12(5, 7).
Jenkins v. Milliken, 498 So.2d 495
Fla.App.2.Dist.,1986
When an employee is hired to work outside with only incidental contact with others, it is ordinarily sufficient to obtain past employment information and personal data and, unless circumstances dictate otherwise, there is no need to make an independent inquiry into employee's past.
Garcia v. Duffy, 492 So.2d 435
Fla.App.2.Dist.,1986
Extent to which employer must inquire as to employee's background, in order to be relieved of liability for negligent hiring, varies depending upon extent to which employee's duties will require contact with others.
Garcia v. Duffy, 492 So.2d 435
Fla.App.2.Dist.,1986
Employer may be liable for wrongful acts of employee under doctrine of negligent hiring or retention, where employee and injured party were in places where each had a right to be when wrongful act occurred, where injured party met employee as direct consequence of his employment, and where employer would have received some benefit, even if only potential or indirect, from meeting of injured party and employee had wrongful act not occurred.
Logozzo v. Kent Ins. Co., 464 So.2d 605
Fla.App.3.Dist.,1985
Where employee shot another individual and tortious act was neither in course of employment nor in breach of any duty owed victim by employer, there was no discernible basis for liability upon employer either on negligent hiring or on any other theory.
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