Negligent Tort Liability
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May 15, 2024
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Negligent Tort Liability
Matthew Liehr
The University of Arizona Global Campus
BUS624: Law & Ethics in the Business Environment
Dr. Terry Long
April 22, 2024
As companies look to expand and add new employees, each company must ensure that candidates align with the company requirements for a position. The hiring process of onboarding
new employees takes considerable effort to ensure that any employment will be mutually beneficial. Conducting various checks such as background checks, criminal history, driving records, and drug screenings helps companies predict the amount of possible liability an employee may bring. A company may be held liable for an employee's actions through negligent hiring or respondeat superior if the company fails to document or omits checks that would have prevented an individual's employment.
Negligent hiring is applied to companies hiring practices and holds companies responsible and possibly liable for actions of the employees that cause harm or damage to a third party. As such companies use many tools to mitigate the possibility of liability caused by employees. “The elements of a negligence claim are that (1) the defendant owed a duty of care to
the plaintiff, (2) the defendant committed a breach of this duty, and (3) this breach was the actual
and proximate cause of injury experienced by the plaintiff” (Prenkert, 2021).
Duty of care is defined as care owed to the defendant from the plaintiff to ensure no harm
or damages result from an employee. Duty of care must fall within the “reasonable” to the average person standard. This means that the average individual or company would have acted in
the same manner as others in similar situations. In the case of Carson v. Superior Electrical, the examination of background, driving record, and other checks would fall within duty of care and help identify a possible liability to the company from an employee.
Next is the Breach of this duty. Breach of duty of care is the violation of reasonable care owed to a plaintiff by a defendant. This must be examined to establish if a duty of care was owed
to the plaintiff. For a breach of care to occur, there must first be an understanding of who is
within the foreseeable risk of harm resulting from the actions of an employee. To establish if a breach occurred the “reasonable person” test may be applied. This test has two parts, first is to compare the defendatnts action against a hypothetical company in similar situations and how it acted. The second is focused on the behavior of the defendant. Again a comparison of a “reasonable person” and how similar actions and outcomes are resolved. If a plaintiff does not fall within the foreseeable risk of harm, then the plaintiff would not be owed a duty of care.
The following breach of duty addresses whether or not the injury resulted from this breach. Having confirmed that a plaintiff is owed a duty of care, examining the causation of injury will occur. Here plaintiffs must prove that a breach of duty by a defendant resulted in a direct injury or damage. In the case Carson v Superior Electrical many aspects must be analyzed to determine whether or not Superior Electrical would be liable for the actions of their employee Cory Jones. Firstly the Carson’s owed a duty of care from Superior Electrical will be looked at. Superior Electrical has some employees who use company vehicles during the work day and for transportation to and from work. Jones was operating a company vehicle at the time of a motor vehicle accident involving the Carsons. Superior Electrical requires all employees to maintain a valid driver's license as the use of
company vehicles may be a possibility of employment. Cory Jones’ application stated that he possessed a valid driver's license and had no traffic violations. Admittedly Superior Electrical did
not verify this information as Cory Jones was hired as an apprentice and would not be assigned a company vehicle. Cory Jones in fact at the time of application possessed a suspended license due
to numerous traffic violations including careless driving and driving without a license.
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A year after Corey Jones had been hired he was assigned a company vehicle in line with company practices to transport materials to and from work sites, and for use to get to and from work. Upon completion of a work day, Cory Jones was driving home and was involved in a motor vehicle accident resulting in the Carson’s injuries due to Jones negligence. As in Raleigh v. Performance Plumbing and Heating, 130 P.3d 1011, Jones was driving home after his work hours had been completed for the day. This applies to Cory Jones was on his
own time and was not participating in any Superior Electrical work-related activities at the time of the collision with the Carsons. In this strict instance, Jones acted on his fruition leaving the duty of care unfulfilled. However, Corey Jones was driving a company vehicle at the time of the collision and further investigation would be warranted. Discovering that Superior Electrical had not completed its due diligence to protect the public from Jones who had an established driving record of traffic violations would affirm Superior Electrical’s care of duty obligations and breach
of such. Finally, injuries sustained by the Carsons were confirmed to be the direct result of the actions of Corey Jones as established by the assignment of negligence.
Reviewing the legal elements of negligent hiring Superior Electrical would be held partially liable for damages suffered by the Carson’s due to the initial neglect to verify Jones’s driving record during the hiring process.
“Respondeat superior is a similar but separate theory of recovery for negligent driving that imposes liability upon a principal for the negligent acts of his agent undertaken within the scope of the agent's employment” (Latimer, 2001). Under this employers are liable for torts committed by employees within the scope of employment. Direct liability of an employer may be assigned if the employer directed an employee to commit said tort or if the employer is negligent in hiring or training. The next element of respondeat superior is the aspect of the use of
agents or third parties. In this case, the employer is typically not liable unless an agent has been directed to mislead or the company retains unqualified individuals. Here a failure to provide duty
of care would result in the liability falling on the employer. Respondeat Superior liability assigns such based on beliefs that the economic burden from employee torts may be borne by employers.
Also, employers typically have insurance to cover such tort liabilities. Finally, the costs of torts will be passed on to consumers is assumed.
In the case of Carson v. Superior Electrial, Cory Jones was not an agent or third party. On
this point alone Respondeat Superior would not apply. As Cory Jones was an employee for one year and was promoted to Electrician this establishes that Jones was not an agent or third party working for Superior Electrical. Secondly, the aspect of employees who commit torts within the scope of their employment also does not apply in this case. As Cory Jones had completed his work day and was driving home from work when the collision occurred, Jones was not performing any duties within his scope of employment. Due to this Superior Electrical would not
be held liable for the collision caused by Cory Jones’ negligence. While Cory Jones was driving a company vehicle on “personal” time going home during the collision negligent hiring would apply more appropriately than respondeat superior as Jones was a Superior Electrical employee rather than an agent. As employers look to develop a workforce a methodical hiring process must be developed and adhered to to protect an employer from liability. To accomplish this employers must verify applicants' information that was provided. The use of outside investigators to analyze
an applicant's background, driving, credit, school records, and other checks will allow informed decision-making in the hiring process. Employers should also require applicants to certify that the information provided is accurate and that misrepresentations will lead to immediate
termination (Smith, 1999). Understanding how future employees may affect the business through
complete checks will limit the amount of future liability burdens.
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References
Cunningham-Parmeter, K. (2024). When Amazon Drivers Kill: Accidents, Agency Law, and the
Contractor Economy.
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Latimer, W. G. (2001). Negligent Hiring Meets the Dangerous Instrumentality Doctrine.
Florida
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Malorney v. B&L Motor Freight, Inc., 496 N.E.2d 1086 (Ill. Ct. App. 1986).
Prenkert, J. D. (2021). Business Law (18th ed.). McGraw-Hill Higher Education (US).
https://uaglobalcampus.vitalsource.com/books/9781264296606
Raleigh v. Performance Plumbing and Heating, 130 P.3d 1011 (Colo. 2006).
Smith, W. C. (1999). Victims of Omission: Employers can face liability for negligent hiring
practices when workers commit acts of violence.
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