2021Negligent Hiring
Due Diligence

Written By ESR News Blog Editor Thomas Ahearn

On August 6, 2021, Division One of the Fourth District Court of Appeal in California ruled in the case of MCKENNA v. BEESLEY that liability for the negligent entrustment of a vehicle or the negligent hiring of an individual to drive a company vehicle may be founded on a failure to ensure that the individual holds a valid driver’s license.

Plaintiff Blake McKenna sued the defendant Lance Beesley and Beesley’s company after McKenna was injured while lawfully walking across a street due to an accident caused by a contractor who drove through a red light while driving a vehicle owned by Beesley. The contractor did not have a driver’s license or automobile insurance.

In a complaint filed in 2018, McKenna claimed the contractor was driving a vehicle owned by Beesley and his company and that Beesley and his company knew or should have known the contractor was a negligent driver who created a risk of harm but they knowingly entrusted him with the use of the vehicle involved in the accident.

California case law recognizes the theory that an employer can be liable to a third person for negligent hiring, supervising, or retaining an unfit employee. Liability is based upon the fact that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.

The California Vehicle Code has two statutes for unlicensed drivers. “No owner of a motor vehicle may knowingly allow another person to drive the vehicle upon a highway unless the owner determines that the person possesses a valid driver’s license that authorizes the person to operate the vehicle,” states subdivision (a) of Section 14604.

In addition: “A person shall not employ, hire, knowingly permit, or authorize any person to drive a motor vehicle owned by him or her or under his or her control upon the highways unless that person is licensed for the appropriate class of vehicle to be driven,” states subdivision (a) of Section 14606 of the California Vehicle Code.

The Court concluded that a jury could find that Beesley did not make a “reasonable effort or inquiry” into whether the contractor had a driver’s license and permitted the contractor to drive a company vehicle without asking if he had a valid driver’s license. Accordingly, a jury could find Beesley allowed an unlicensed driver to drive his vehicle.

“We conclude that a jury may find that an owner who breaches its section 14604 duty and permits an unlicensed driver to drive the owner’s vehicle had constructive knowledge of the driver’s incompetence to drive,” stated the opinion, which reversed summary judgment in favor of Beesley and summary adjudication for his company.

“We can think of no reason… why a hirer who hires another to drive a vehicle has no duty to make a reasonable effort or inquiry into whether a prospective hiree is licensed before entrusting the hiree with a vehicle, given that an owner must make a reasonable effort or inquiry before permitting a person to drive the owner’s car.”

The opinion stated: “We conclude that a hirer has, at a minimum, a duty to make a ‘reasonable effort or inquiry’… into whether the hiree, entrusted with a vehicle, has an appropriate driver’s license.” Section 14604 requires a vehicle owner to make “a reasonable effort or inquiry” to determine whether a driver has a valid driver’s license.

“Negligent hiring is the flip side of due diligence,” Attorney Lester Rosen, the founder and chief executive officer (CEO) of leading global background check provider Employment Screening Resources® (ESR), wrote in his book “The Safe Hiring Manual,” the first comprehensive guide to background checks now in its third edition.

“If an employer hires someone who they knew – or in the exercise of reasonable care should have known – was dangerous, dishonest, unfit, or unqualified for the position, and it was reasonably foreseeable that some sort of injury could happen to someone as a result, then the employer can be sued for negligent hiring,” Rosen wrote.

“When an employer fails to exercise due diligence and a person is harmed by an employee, that employer can be sued. Liability for the acts of a worker may not even be limited to just employees. An independent contractor or a worker sent from a staffing vendor can also potentially land a business in hot water,” Rosen explained in his book.

Employment Screening Resources® (ESR) – which was ranked the number one screening firm by HRO Today in 2020 – offers employers Pre-Employment Driving Records Checks that manage risk and compliance under the law in the United States and countries around the world. To learn more about ESR, visit www.esrcheck.com.

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