A case decided by the California Supreme Court on June 23, 2011 graphically demonstrates the difference between allegations of negligent hiring as opposed to “vicarious” liability where an employer has direct responsibility for the acts of an employee.

In that case, the plaintiff was injured in a car accident when another driver tried to pass a truck that was in the middle lane.  The driver ended up getting back into the middle lane but hit the truck, causing the car to spin and fly over the divider and hit the plaintiff’s SUV.

The plaintiff (the injured party) sued both drivers, including the truck driver on the theory that the truck driver should have been in the slow lane, and should have avoided the collision by being aware of a car trying to pass.  There was also an allegation that the truck driver sped up to keep the driver from passing.

The truck driver, who worked for a trucking company, was also sued.  The trucking company was sued under a theory of vicarious liability, which means the employer is liable for the acts of its employees committed in the scope and course of the employment.  In the alternative, the plaintiff ALSO sued for negligent hiring and retention.

The basis of the negligent hiring and retention lawsuit was that the truck driver had two previous accidents, one of which he was at fault and sued and the other occurring 16 days before the events in this case.  In addition, the driver was in the country illegally, had used a phony social security number, and was fired from or quit without good reason three of his last four driving jobs. Also, the only evaluation received by the truck driver’s current employer was negative.

In order to avoid such prejudicial evidence, the trucking firm offered to admit that it was vicariously liable for any negligent driving by its employee.  Vicarious liability is based on a legal concept called “respondent superior,” which means that an employer is liable for the act of its employees committed in the scope of employment.  Such an admission would mean that a plaintiff  would not have to prove that the employer was negligent in hiring or retaining.  Just showing the employee was negligent while working for the employer is sufficient.  

The trial court, however, allowed the plaintiff to introduce the evidence relating to negligent hiring and retention and the jury heard about the prior accidents and the  apparent lack of due diligence in the selection process.  As a result, the jury found that he truck driver was negligent and the trucking company was also negligent in hiring and retaining the driver.

The trucking company appealed on the basis that evidence of negligent hiring should not have been admitted where the trucking company was willing to accept liability vicariously for the acts of its employee, and that the admission of such unnecessary evidence was prejudicial.  Furthermore, under California’s complicated laws concerning allocation of fault between defendants, the trucking company argued that it was held liable for a larger portion of the damages than it otherwise would have.

The California Supreme Court ruled for the trucking firm, indicating that once an employer is willing to accept responsibility for an employee’s act, the only issue is whether the employee was negligent.  It is no longer relevant if, in addition, the employer was also negligent in hiring and/or retaining the worker.  Adding evidence pertaining to negligent hiring and retention is prejudicial and in this case may well have altered the allocation of responsibility. 

The case is Diaz vs. Carcamo, et al., No. S181627, filed June 23, 2011. 

The case underscored the difference between negligent hinging and direct vicarious liability.  As explained in the first edition of the ‘The Safe Hiring Manual,’ negligent hiring actually developed as a tool in cases where there was no vicariously liability.  According to Chapter Three of The Safe Hiring Manual: 

How Negligent Hiring Lawsuits Started

Assume you have an employee who is driving to an assignment and gets into an accident, or, while on the job, an employee accidentally injures someone while trying to perform his or her duties. In these cases, most employers would agree an employer would expect to be liable. In fact, there is a legal theory called Respondent Superior, which means literally that the Master must respond when their employee commits a wrongdoing while engaged in the scope and course of his duties. The law refers to this as vicarious liability.

What happens if an employee decides to beat up someone on the job? What happens if an employee meets someone on the premises, goes to that person’s home and commits a sexual assault or a theft?

In these scenarios, an employer may say, “Wait a minute, I have looked through the job descriptions and the job says nothing about assaults, thefts, or sexual offenses on or off the job. He was not doing those things in the performance of his duty. These were independent and intentional acts he committed.”

The employer would be right to a point. Under the traditional legal theory of Respondent Superior, the employer likely could not be sued successfully. However, such a limitation would result in innocent victims being denied their day in court and negligent employers not being held responsible. As a result, the ability to bring a lawsuit for negligent hiring was developed in order to afford relief to victims injured by the negligent actions of an employer, where the negligence had foreseeable consequences and caused the injury.

The case Diaz vs. Carcamo, et al. is available at: http://scholar.google.com/scholar_case?case=149750574857950619&q=Diaz+vs.+Carcamo&hl=en&as_sdt=2,5

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