An Employer’s Duty of Care Increases with Risk

The following excerpt from the “Safe Hiring Manual” discusses the duty of care in more detail:

The injured party must show there is some connection or relationship between itself and the employer, so the employer owes a duty of care. This can occur in numerous situations, such as a co-worker on the job, a member of the public in a location where customers are expected to have contact with employees, tenants in an apartment building injured by a maintenance worker, and other situations where the victim and the dangerous employee are expected to come into contact. In other words, an employer breaches a duty of care if it creates a situation where a third party is expected to be brought into contact with the employee who causes the injury, under conditions for which there is an opportunity for an injury to occur. It does not matter that the particular injury was foreseeable, just that any injury was foreseeable.

Certain employers have a higher duty of care because of the unique situations of the job. An employer’s duty of care will increase with the degree of risk involved with the position For example, consider the nature of the authority and position of trust a security guard holds. Many courts impose an even higher standard of care on a security guard business than other types of employers since there is a greater likelihood of harm to third parties. Welsh Mfg., Div. of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436 (R.I. 1984). In other words, when the job enables a person to act under some color of authority, a greater risk is involved because a person can potentially abuse that authority.

Similarly, courts have held employers who send workers into people’s homes to a higher standard. This is on the theory that when an employer hires an employee who is given a unique opportunity to commit a crime, the employer has a higher duty of care. Examples are firms that clean carpets, deliver or fix appliances, or perform pest control services in a home. An example is a homeowner who brought suit against the exterminating service she hired when one of its employees raped her in her home. Smith v. Orkin Exterminating Co., Inc., 540 So.2d 363 (La.App. 1st Cir. 1989).

Other examples of higher duties of care can be medical professionals, home health care agencies or childcare workers that serve a vulnerable population particularly at risk. Another example is a worker hired in a call center who has access to sensitive financial information such as credit card numbers, or personal information such as SSN’s.

For more information about the Safe Hiring Manual, visit http://esrcheck.com/SafeHiringManual.php