Civil Litigation
Experience and Results
HOUSTON, TEXAS | 713.526.1801

Negligent Hiring, Supervision, and Retention

© 2013 Mark Courtois

The basic duty of an employer is that one who retains the services of another has a duty to investigate the background of that individual for fitness for the position, to remain knowledgeable of that fitness and is liable if another person is injured in some manner related to his employment because of a lack of fitness.[1]  The basis of responsibility under the doctrine of negligent hiring is the master's own negligence in hiring or retaining an incompetent servant whom the master knows, or by the exercise of reasonable care should have known, was incompetent or unfit.[2]  This is a duty owed by the master to his other servants as well as to the public.  Thus, the tort of negligent hiring is an exception to the general rule that a person does not have a duty to protect another person from the conduct of a third person.[3] 

The elements of a negligent hiring, supervision, and retention claim may be generally stated as: 1) the duty to hire, supervise, and retain competent employees; 2) the employer breaches that duty; and 3) the employer's breach of that duty proximately caused the damages sued for.[4]  An employer is liable for negligent hiring, supervision, or retention when proof is presented that the employer hired an incompetent or unfit employee whom it knew or, by the exercise of reasonable care, should have known was incompetent or unfit, thereby creating an unreasonable risk of harm to others.[5]  Negligence in hiring requires that the employer's "failure to investigate, screen, or supervise its employees proximately caused the injuries the plaintiffs allege."[6]  To impose liability for negligent hiring, there must be evidence that the plaintiff's injuries were brought about by reason of the employment of the incompetent servant.[7]  If this connection was not required, an employer would essentially be an insurer of the safety of every person who happens to come into contact with its employee simply because of the employee status.[8]  Negligent hiring and negligent employment are akin to the doctrine of negligent entrustment of an automobile.[9]

The tort of negligent hiring is different from the doctrine of Respondeat Superior because it addresses the risk created by exposing the public to a potentially dangerous individual, while the doctrine of respondeat superior is based on the theory that the employee is the employer's agent.[10]  Respondeat Superior requires a finding that the employee was acting within the course and scope of his employment when the tortious act occurred, while negligent hiring requires only some connection between the plaintiff's injury and the fact of employment.[11]

 

 


[1]See C. J. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995); see also Missouri K. & T. Ry. Co. of Texas v. Day, 104 Tex. 237, 136 S.W. 435, 440 (1911); see also Texas & P. Ry. Co. v. Johnson, 89 Tex. 519, 35 S.W. 1042 (1896); see also Suerae Robertson v. Church of God, Int’l, No. 12-96-00083-CV, 1997 WL 555626, (Tex. App.--Tyler, Aug. 17, 1997, writ denied).

[2]  See Suerae Robertson v. Church of God, International, 1997 WL 555626; see also Arrington's Estate v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App.–Tyler 1979, writ ref'd n.r.e.).

[3]  See C. J. Doe v. Boys Clubs of Greater Dallas, 868 S.W.2d at 950, aff'd,  907 S.W.2d at 472.

[4]  See LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex. App.--Amarillo 1997, writ denied).

[5]  See Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex.App.--Fort Worth 2008, no pet. h.)

[6]  See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477, 38 Tex. Sup. Ct. J. 732 (Tex. 1995)

[7]  See Dieter v. Baker Service Tools, 739 S.W.2d 405, 408 (Tex. App.--Corpus Christi 1987, writ denied).

[8]  See LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex. App.--Amarillo 1997, writ denied).

[9]  See Deerings West Nursing Center v. Scott, 787 S.W.2d 494, 495 (Tex. App.--El Paso 1990, writ denied).

[10]  See Akins v. Estes, 888 S.W.2d 35, 42 (Tex. App.--Amarillo 1994), aff'd and rev'd in part, Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996); see also LaBella v. Charlie Thomas, Inc., 942 S.W.2d at138.

[11]  See Dieter v. Baker Serv. Tools, 739 S.W.2d at 408.