Tort - Negligent Hiring/Negligent Supervision

Question 1

What two tort causes of action should be named if fact scenario shows employee caused personal injury to another?

Answer 1

Causes of Action against Employer

1) Negligent Hiring
2) Negligent Supervision

Question 2

What are the elements of Negligent Hiring?

Answer 2

Elements of Negligent Hiring

1) Defendant owed Plaintiff a Legal Duty ***Must Do Risk-Utility Test
2) Breach of Duty
3) Breach proximately caused damages
i) cause-in-fact
ii) forseeability
4) Damages

Ex. Employee immigration status did not cause car accident

Question 3

What are the elements of Negligent Supervision?

Answer 3

Elements of Negligent Supervision

1) Defendant owed Plaintiff a Legal Duty ***Must Do Risk-Utility Test
2) Breach of Duty
3) Breach proximately caused damages
i) cause-in-fact
ii) forseeability
4) Damages

Ex. Employee allowed to drink alcohol on job causes employer to have a duty then to forsee the employee does not cause harm to third parties

Question 4

What are the damages for negligent hiring and negligent supervision?

Question 5

What are the defenses of negligent hiring?

Answer 5

(Defenses for Negligent Hiring & Negligent Supervision)

PILE PEAR PUMP ICI

P - Plaintiff’s fault (Proportionate Responsibility)

I - Immunity

L - Limitations

E - Employer Non-subscriber and Subscriber Issues

P - Plaintiff’s Conviction

E - Economic Loss Rule

A - Assuption of the Risk (ONLY when knowing and express consent, competitive-sports doctrine where risk inherent in support, committing suicide)

R - Release Agreement

P - Presumption of No Negligence (Co.’s required to perform criminal background checks)

U - Unforseeable incapacity

M - Mitigation

P - Preemption (Workers Comp & TCHRA)

I - Independent-Contractor

C - Criminal Conviction Not Relevant

I - Inferential rebuttals (New & Independent cause, sole proximate cause, unavoidable accident, sudden emergency and Act of God)

Question 6

Can someone enter a pre-injury release for negligent hiring and negligent supervision?

Question 7

When determining if an employer owes a common law duty under negligent hiring or negligent supervision, what TEST will the Texas Supreme Court use?

Answer 7

In deciding whether there is a common-law duty, courts apply

the risk-utility test.

Question 8

What is the Risk-Utility Test used by courts to determine whether a common law duty under negligent hiring and negligent supervision exists?

Hint: 1, 2, 3, balanced against 1, 2, 3

Answer 8

Texas Supreme Court - RISK UTILITY TEST

1) RISK,
2) FORSEEABILITY, &
3) LIKELIHOOD OF INJURY

BALANCED AGAINST

1) SOCIAL UTLITY OF THE ACTOR’S CONDUCT

2) MAGNITUDE OF THE BURDEN OF GAURDING AGAINST THE INJURY
3) CONSEQUENCES OF PLACING THIS BURDEN ON THE DEFENDANT

Question 9

In order to prove an action for negligence in Texas, the plaintiff MUST ESTABLISH that the defendant had a __________ __________.

Answer 9

LEGAL DUTY

Question 10

In the Texas Supreme Court’s Risk Utility Test, when these factors are balanced, the most important factor is ____________.

Answer 10

The most important factor is

The FORESEEABILITY OF THE RISK

Question 11

What is the test for forseeability of risk?

Answer 11

Test for forseeability of risk (most imporant factor in risk utility test)

whether (1) the injury is of a general character that might have reasonably been anticipated and

(2) the injured party is situated in relation to the wrongful act so that injury to her or to one similarly situated might resonably have been foreseen
* ***Note: Forseeability alone, however is not enough to create a duty*

Question 12

FACT SCENARIO: Oil Field worker and estates of other workers brought negligence action against employer, energy company and crew leader, after automobile accident occurred while crew leader was driving workers to employer’s bunkhouse after work.

Is the employer at fault? Under what theory/causes of action could he be sued for?

Answer 12

Negligent Hiring and Negligent Supervision

• Yes, he maybe at fault
• Theories of liability would be negligent hiring and negligent supervision
• -Employer was likely or at least there is a fact issue as to whether employee was acting in course and scope of his employment when he left drilling site to drive other workers See Painter v. Amerix Drilling (Tex. 2018)*

Question 13

What determines whether an employer is responsible for the actions of an employee?

Answer 13

Two Step Process

1) an employee
2) acting in the course and scope of his employment

Question 14

How do you determine if an employee is classified as an employee?

Answer 14

Right to Control Test

-control the progress, details and methods of operations of the work: whether or not the employer chooses to exercise that right over that task

DISTINGUISHABLE FROM Independent Contractor: premised on extending a right to control over the SPECIFIC task that led to the injury

Question 15

How do you determine if an employee is in their course and scope of employment?

Answer 15

Course and Scope of Employment - Objective Analysis

-Acting with Employer’s authority and to Employer’s benefit

EXCEPTION to general rule of traveling to and from work not being in course and scope —if the employee’s performance involves regular or specifically assigned duties for the benefit of the employer

Question 16

What is the EXCEPTION to general rule of traveling to and from work not being in course and scope ?

Answer 16

If the employee’s performance involves regular or specifically assigned duties for the benefit of the employer.

See Case Painter v. Amerimex Drilling (Tex. Dec. 2018)

Question 17

Fact Scenario: Decedent’s estate brought action against Owner of Convenience store, seek to hold it directly liable for negligent supervision of store employee who instigated a violent physical altercation with decedent, who later died allegedly from injuries sustained in the fight. More specifically, two cashiers, one 22 named Alfredo and the other 54 named JR Carlos worked at a local Exxon. Following personal disagreements and harsh words, a fight broke out and Carlos ended up in the hospital where he died 23 days later from cardiac arrhythmia. The manger knew they did not get along but nobody had been violent and the background check never revealed a criminal record. Did Employer owe duty?

Answer 17

-In applying the RISK UTILITY Test to determine whether a duty exists, the convenience store employer owed no duty to control employee to prevent employee from engageing in fistfight with another employee (and other employee’s father) and therefore employer was not liable to estate of father who died as a result of fight. Friction between employees did not give employer reason to think friction could possibly injure store patrons, and it was not foreseeable that a fist fight without any weapons would result in death of patron.

Result - Pagayon v. Exxon Mobile Corp. (Tex. 2017)

Question 18

What two preemptions exist for negligent hiring and negligent supervision?

Answer 18

1) Workers Compensation Act - Employee suing a subscriber to Texas Workers Compenation system for her work related injuries based on negligence, the Workers Comp Act is the exclusive remedy. ***Preemption only applies if the employee’s injuries were sustained during the course of employment.
2) TCHRA - Texas Commission on Human Rights Act - When an employee sues an employer for the type of injury the TCHRA was intended to cover, the employee cannot recover on a common-law action for negligent hiring, supervision, training or retention unless there are additional facts unrelated to the potential TCHRA calim that would support a common law claim (Ex. Waffle House - Tex. 2010 - P could not recover on claims for negligent supervision and retention based on sexual harassment)

Question 19

What is the presumption that exists with negligent hiring case?

Answer 19

PRESUMPTION OF NO NEGLIGENCE

Texas Civil Practices & Remedies Code Chapter 145 pertains to liability for negligent hiring for in-home service companies and residential delivery companies. These COMPANIES are REQUIRED to perform a criminal background check on certain employees.

In a negligent hiring case arising from a criminal act of an employee, such a company is REBUTTABLY PRESUMED not to have acted NEGLIGENTLY if, the history shows, employee had not been CONVICTED or PLACED on DEFERRED ADJUDICATION for (1) an offense against a person or property or the public indecency in the last ten years, if the alleged criminal act is a Class A or Class B misdemeanor or (2) an offense against a person or property or for public indecency in the last 20 years, if the act is a felony.

Question 20

What type of defense can an employer claim related to the relevancy of a criminal conviction when being sued for negligent hiring?

Answer 20

DEFENSE to NEGLIGENT HIRING - NO RELEVANT CRIMINAL CONVICTION

Defendant can assert that the Plaintiff’s cause of action is based SOLELY on general evidence that the employee had a criminal conviction. BUT Defendant Employer may still be liable if

(1) KNOWLEDGE OF SPECIFIC CONVICTION - it KNEW or SHOULD HAVE KNOWN of the Employee’s criminal conviction and the conviction was for a specific conviction (see next study card)
(2) CONVICTION FOR FRAUD OR MISUSE OF FUNDS OR PROPERTY

Question 21

Defendant employer may still be liable if employer had what knowledge of a SPECIFIC CONVICTION?

Answer 21

(1) Substantially Similar - An offense that was committed while performing duties substantially similar to those reasonably expected to be performed in the employment, or under conditions substantially similar to those reasonably expected to be encountered in the employment,
(2) Offense listed in Texas Code of Criminal Procedure 42A.054
(3) A sexually violent offense as defeined in Texas Code of Crim. Proc.
(4) Fraud or misuse of a third party’s funds

Question 22

FACT SCENARIO: Employee commits a crime that includes stealing money from Clients that the employee is serves provided to the Employer.

What could the Employer be liable for?

What 3 conditions must exist for Employer to be liable?

Answer 22

Negligent Hiring

Conviction for Fraud or Misuse of funds or property

The defendant may still be liable if

(1) the negligent-hiring action involves fraud or misuse of a third party’s funds or property
(2) the employee had been convicted of a crime for which fraud or misuse of funds or property was an element as of the date the employees was hired and
(3) it was forseeable that the position for which the employee was hired would invovle discharging a fiduciary responsibility in the management of funds or property

Question 23

Fact Scenario: Employee is in car wreck and damages building owned by local Donut shop. Employee had previously been convicted of a crime for reckless driving 15 years ago.

What theory could the employer be liable for?

Answer 23

Negligent Hiring

Conviction for Fraud or Misuse of funds or property

The defendant may still be liable if

(1) the negligent-hiring action involves fraud or misuse of a third party’s funds or property
(2) the employee had been convicted of a crime for which fraud or misuse of funds or property was an element as of the date the employees was hired and
(3) it was forseeable that the position for which the employee was hired would involve discharging a fiduciary responsibility in the management of funds or property

***Note: Beware the discrimination analysis of criminal background under the EEOC (ex. Ban the Box legislation)