Negligent Hiring, Supervision and Retention

A recent decision from the California Supreme Court has brought attention to the legal principles that impose liability on the employer for the misconduct of its employees. In C.A. v. William S. Hart Union High School Dist., Case No. S188982 (Mar. 8, 2012), the Court ruled that a school district could be held liable in damages for sexual abuse of a student by one of its counselors, so long as the student could prove that one of the district's supervisors or administrators negligently exposed the student to a foreseeable danger of molestation by the counselor. The decision applies the principles of (1) respondeat superior, (2) course and scope of employment, and (3) duty.

Respondeat superior

Respondeat superior is a Latin phrase that literally means "let the master answer." As a legal principle, it means that the employer can be held liable for the acts and omissions of its employees. If a delivery service's driver carelessly hits another vehicle while making a delivery, the delivery service is liable for any damages caused by the collision.

Course and scope of employment

An employer is not liable for an employee's acts and omissions when the employee is not acting as an employee, but as an individual in pursuit of his or her own interests. Only when the employee is acting in the course and scope of employment is the employer liable. If the delivery service's driver hits another driver on the way to his daughter's soccer game on Saturday afternoon, the deliver service is not liable. An employee can be acting outside the course and scope of employment even while at the workplace during work hours. For example, an employee who sexually harasses another employee at work is acting for strictly personal reasons, and not in the course and scope of employment. Farmers Insurance Group v. County of Santa Clara, 11 Cal.4th 992, 906 P.2d 440, 47 Cal. Rptr.2d 478 (1995). Similarly, the counselor whose actions formed the basis for the lawsuit in the William S. Hart case was acting outside the scope of employment. John R. v. Oakland Unified School Dist., 48 Cal.3d 438, 256 Cal. Rptr. 766, 769 P.2d 948 (1989).

Duty

Liability for harm to another depends upon the existence of a legal duty to prevent that harm. If you are walking on a public thoroughfare and see a crime in progress, you do not have a duty to prevent harm to the victim. Alvarez v. Jacmar Pacific Pizza Corp., 100 Cal.App.4th 1190, 122 Cal.Rptr.2d 890 (2002). On the other hand, a property owner owes its tenants a duty to take reasonable measures to protect them from crimes that the owner should know are likely to occur. O'Hara v. Western Seven Trees Corp., 75 Cal.App.3d 798, 142 Cal.Rptr. 487 (1977). In California, courts determine the existence of a legal duty based on the following factors identified by the California Supreme Court in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968): the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

The existence of a legal duty may impose liability on an employer for damage caused by an employee even when that employee is acting outside the course and scope of employment. For example, a landlord who employed a drug-addled convicted felon as a security guard, and allowed him to carry loaded firearms during the course and scope of employment, could be held liable when the security guard shot one of the landlord's tenants. Hawkins v. Wilton, 144 Cal.App.4th 936, 51 Cal.Rptr.3d 1 (2006).

Public entities like the school district defendant in the William S. Hart case are only liable if an statute expressly imposes a duty. Cal. Gov. Code section 815. Government Code section 815.2 makes a public entity "for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment." This means that, although plaintiffs may not pursue a general negligence theory against a public entities, they may hold public entities liable for their employees' wrongs under the respondeat superior principle.

All of which brings us to the Supreme Court's William S. Hart decision. Because the sexual abuse was outside the scope of the counselor's employment, the plaintiff could not sue the school district directly for her misconduct. Although the plaintiff could not hold the school district directly liable for its own negligence, he could pursue a claim based on the district's respondeat superior liability for its the acts and omissions of its supervisors and managers related to the hiring and supervision of the counselor. The complaint alleged that there was a history of misconduct from which the district employees should have known that there was a danger to students whom she counseled.

What should employers do?

The possibility of being held liable for wrongs committed by employees even when they are not acting within the scope of employment means that employers must implement strict hiring standards. Background checks, pre-employment drug screening and rigorous scrutiny of applicants throughout the hiring process. Those who work with those who are particularly vulnerable, such as children and patients, must be particularly careful.