California Civil Jury Instructions (CACI) (2017)

426. Negligent Hiring, Supervision, or Retention of Employee

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426.Negligent Hiring, Supervision, or Retention of Employee
[Name of plaintiff] claims that [he/she] was harmed by [name of
employee] and that [name of employer defendant] is responsible for that
harm because [name of employer defendant] negligently [hired/
supervised/ [or] retained] [name of employee]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. [That [name of employer defendant] hired [name of employee];]
2. That [name of employee] [[was/became] [unfit [or] incompetent]
to perform the work for which [he/she] was hired/[specify other
particular risk]];
3. That [name of employer defendant] knew or should have known
that [name of employee] [[was/became] [unfit/ [or] incompetent]/
[other particular risk]] and that this [unfitness [or] incompetence/
[other particular risk]] created a particular risk to others;
4. That [name of employee]’s [unfitness [or] incompetence/[other
particular risk]] harmed [name of plaintiff]; and
5. That [name of employer defendant]’s negligence in [hiring/
supervising/ [or] retaining] [name of employee] was a substantial
factor in causing [name of plaintiff]’s harm.
New December 2009; Revised December 2015, June 2016
Directions for Use
Give this instruction if the plaintiff alleges that the employer of an employee who
caused harm was negligent in the hiring, supervision, or retention of the employee
after actual or constructive notice that the employee created a particular risk or
hazard to others. For instructions holding the employer vicariously liable (without
fault) for the acts of the employee, see the Vicarious Responsibility series, CACI
No. 3700 et seq.
Include optional question 1 if the employment relationship between the defendant
and the negligent person is contested. (See Jackson v. AEG Live, LLC (2015) 233
Cal.App.4th 1156, 1185–1189 [183 Cal.Rptr.3d 394].) It appears that liability may
also be imposed on the hirer of an independent contractor for the negligent
selection of the contractor. (See Noble v. Sears, Roebuck & Co. (1973) 33
Cal.App.3d 654, 662–663 [109 Cal.Rptr. 269].) Therefore, it would not seem to be
necessary to instruct on the test to determine whether the relationship is one of
employer-employee or hirer-independent contractor. (See CACI No. 3704, Existence
of “Employee” Status Disputed.)
Choose “became” in elements 2 and 3 in a claim for negligent retention.
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In most cases, “unfitness” or “incompetence” (or both) will adequately describe the
particular risk that the employee represents. However, there may be cases in which
neither word adequately describes the risk that the employer should have known
about.
Sources and Authority
• “California case law recognizes the theory that an employer can be liable to a
third person for negligently hiring, supervising, or retaining an unfit employee.”
(Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [58 Cal.Rptr.2d 122].)
• “Negligence liability will be imposed on an employer if it ‘knew or should have
known that hiring the employee created a particular risk or hazard and that
particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139 [91 Cal.Rptr.3d 864].)
• “[Plaintiff] brought several claims against [defendant employer], including
negligent hiring, supervising, and retaining [employee], and failure to warn. To
prevail on his negligent hiring/retention claim, [plaintiff] will be required to
prove [employee] was [defendant employer]’s agent and [defendant employer]
knew or had reason to believe [employee] was likely to engage in sexual abuse.
On the negligent supervision and failure to warn claims, [plaintiff] will be
required to show [defendant employer] knew or should have known of
[employee]’s alleged misconduct and did not act in a reasonable manner when it
allegedly recommended him to serve as [plaintiff]’s Bible instructor.” (Lopez v.
Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th
566, 591 [201 Cal.Rptr.3d 156], internal citations omitted.)
• “Liability for negligent supervision and/or retention of an employee is one of
direct liability for negligence, not vicarious liability.” (Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [52 Cal.Rptr.3d 376].)
• “Liability for negligent hiring and supervision is based upon the reasoning that
if an enterprise hires individuals with characteristics which might pose a danger
to customers or other employees, the enterprise should bear the loss caused by
the wrongdoing of its incompetent or unfit employees. The tort has developed
in California in factual settings where the plaintiff’s injury occurred in the
workplace, or the contact between the plaintiff and the employee was generated
by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66
Cal.App.4th 1333, 1339–1340 [78 Cal.Rptr.2d 525].)
• “To establish negligent supervision, a plaintiff must show that a person in a
supervisorial position over the actor had prior knowledge of the actor’s
propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238
Cal.App.4th 889, 902 [189 Cal.Rptr.3d 570].)
• “Apparently, [defendant] had no actual knowledge of [the employee]’s past. But
the evidence recounted above presents triable issues of material fact regarding
whether the [defendant] had reason to believe [the employee] was unfit or
whether the [defendant] failed to use reasonable care in investigating [the
CACI No. 426 NEGLIGENCE
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employee].” (Evan F. v. Hughson United Methodist Church (1992) 8
Cal.App.4th 828, 843 [10 Cal.Rptr.2d 748]; cf. Flores v. AutoZone West Inc.
(2008) 161 Cal.App.4th 373, 384–386 [74 Cal.Rptr.3d 178] [employer had no
duty to investigate and discover that job applicant had a juvenile delinquency
record].)
• “A claim that an employer was negligent in hiring or retaining an employee-
driver rarely differs in substance from a claim that an employer was negligent
in entrusting a vehicle to the employee. Awareness, constructive or actual, that a
person is unfit or incompetent to drive underlies a claim that an employer was
negligent in hiring or retaining that person as a driver. (See Judicial Council of
Cal. Civ. Jury Instns. (2011) CACI No. 426.) That same awareness underlies a
claim for negligent entrustment. (See CACI No. 724.) In a typical case, like
this, the two claims are functionally identical.” (Diaz v. Carcamo (2011) 51
Cal.4th 1148, 1157 [126 Cal.Rptr.3d 443, 253 P.3d 535].)
• “[I]f an employer admits vicarious liability for its employee’s negligent driving
in the scope of employment, ‘the damages attributable to both employer and
employee will be coextensive.’ Thus, when a plaintiff alleges a negligent
entrustment or hiring cause of action against the employer and the employer
admits vicarious liability for its employee’s negligent driving, the universe of
defendants who can be held responsible for plaintiff’s damages is reduced by
one—the employer—for purposes of apportioning fault under Proposition 51.
Consequently, the employer would not be mentioned on the special verdict
form. The jury must divide fault for the accident among the listed tortfeasors,
and the employer is liable only for whatever share of fault the jury assigns to
the employee.” (Diaz, supra, 41 Cal.4th at p. 1159, internal citations omitted.)
• “[A] public school district may be vicariously liable under [Government Code]
section 815.2 for the negligence of administrators or supervisors in hiring,
supervising and retaining a school employee who sexually harasses and abuses
a student.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 879 [138 Cal.Rptr.3d 1, 270 P.3d 699].)
• “[P]laintiff premises her direct negligence claim on the hospital’s alleged failure
to properly screen [doctor] before engaging her and to properly supervise her
after engaging her. Since hiring and supervising medical personnel, as well as
safeguarding incapacitated patients, are clearly within the scope of services for
which the hospital is licensed, its alleged failure to do so necessarily states a
claim for professional negligence. Accordingly, plaintiff cannot pursue a claim
of direct negligence against the hospital.” (So v. Shin (2013) 212 Cal.App.4th
652, 668 [151 Cal.Rptr.3d 257].)
• “[Asking] whether [defendant] hired [employee] was necessary given the
dispute over who hired [employee]—[defendant] or [decedent]. As the trial
court noted, ‘The employment was neither stipulated nor obvious on its face.’
However, if the trial court began the jury instructions or special verdict form
with, ‘Was [employee] unfit or incompetent to perform the work for which he
was hired,’ confusion was likely to result as the question assumed a hiring.
NEGLIGENCE CACI No. 426
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Therefore, the jury needed to answer the question of whether [defendant] hired
[employee] before it could determine if [defendant] negligently hired, retained,
or supervised him.” (Jackson, supra, 233 Cal.App.4th at pp. 1187–1188.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1190
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-H, Negligence,
¶ 5:615 et seq. (The Rutter Group)
3 California Torts, Ch. 40B, Employment Discrimination and Harassment, § 40B.21
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.12 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.22 (Matthew Bender)
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