- As a general rule, an employer is not liable for intentional torts committed by its employees.
- The theory of negligent hiring, retention, or supervision is an exception to this rule.
- An employer may be liable for failing to exercise reasonable care in its hiring, retention, and supervision of employees if that failure results in reasonably foreseeable harm.
Under the doctrine of respondeat superior, an employer is only liable for a tort committed by an employee acting “within the scope of employment.” As a general rule, an intentional tort – such as an assault – is not “within the scope of employment.” But, under the theory of negligent hiring, retention, or supervision, an employer may be liable directly – as opposed to vicariously through its employee.
The theory of negligent hiring, retention, or supervision is often raised in cases of sexual assault or sexual abuse. For example, the church may be liable when a priest sexually abuses a child, or a school district may be liable when a teacher sexually assaults a student.
Under the theory of negligent hiring, retention, or supervision, every employer has a duty to exercise reasonable care in its hiring, retention, and supervision of employees. An employer may be liable for the wrongdoing of an employee if the employer knew or should have known that the employee was unfit for a particular position and thereby created an unreasonable risk of harm to others.
To prove a case of negligent hiring, retention, or supervision, the victim of sexual assault or sexual abuse must prove the following elements:
- The employer failed to exercise reasonable care in the hiring, retention, or supervision of its employees; and
- The employer’s failure to exercise reasonable care in the hiring, retention, or supervision of its employees was a proximate cause of the sexual abuse or sexual assault of the victim.
Evidence that may be used to prove that an employer failed to exercise reasonable care in the hiring of its employees includes:
- Failure to perform a background check
- Failure to check references
- Actual knowledge of past bad sexual assault or sexual abuse
Evidence that may be used to prove that an employer failed to exercise reasonable care in the retention or supervision of its employees includes:
- Failure to implement policies and procedures to prevent assault or abuse
- Failure to investigate rumors or complaints about an employee
To prove that the employer’s failure to exercise reasonable care in the hiring, retention, or supervision of its employees was a proximate cause of the sexual abuse or sexual assault, the victim must prove that the sexual abuse or sexual assault was a reasonably foreseeable result of the employer’s failure to exercise reasonable care.
For example, if an employer failed to perform a background check on someone applying to be a delivery driver and thus failed to discover that the job applicant had several convictions for drunk driving, the employer failed to exercise reasonable care in the hiring of that employee. But if that delivery driver sexually assaults a customer on his delivery route, it would be difficult to argue that the sexual assault was a reasonably foreseeable result of the employer’s negligence.
On the other hand, if the employer failed to perform a background check on someone applying to be a delivery driver and thus failed to discover that the job applicant had several convictions for sexual assault, the employer failed to exercise reasonable care in the hiring of that employee AND the sexual assault of a customer on his delivery route was a reasonably foreseeable result of the employer’s negligence. This employer would be liable to the victim of the sexual assault.
Written by:
Linda K. Leibfarth
Watts Guerra LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, Texas 78257
Phone (210) 477-0500
© Watts Guerra LLP 2015
