A. Introduction
The
plaintiff, [insert the plaintiff’s name], alleges that the defendant, [insert
the employer’s name], was
negligent in the manner in which [he]
[she] [it] hired and supervised [insert the alleged dangerous
employee’s name]. The plaintiff
further claims that as a result of [insert employer’s name]’s
negligence, [he] [she] was exposed to [insert the alleged dangerous
employee’s name], a
dangerous individual, who ultimately [insert a brief description of the
alleged damage or injury].
B. Duty
Of An Employer Generally
The
mere happening of an unfortunate event does not provide a basis for
liability. Liability is established only
if it is proven that a person owing a duty to another breached that duty, and the
breach of duty caused the injury or damages claimed.
Generally,
an employer is not liable for an employee’s criminal or tortious act, whether
negligent or intentional, unless the act was committed during the course of,
and within the scope of, employment. An
exception exists in the case of a claim of negligent hiring. An employer may be held responsible for the
criminal or wrongful acts of [his] [her] [its] employee, even if those acts occur outside the scope of
employment, if the employer was negligent in the manner in which [he] [she]
[it] hired, supervised or retained an
inappropriate or unfit employee.[2]
C. Negligent
Hiring Exception
An
employer in a business providing services to the public has a duty to use
reasonable care in selecting competent and fit employees for the work assigned
to them. An employer is also bound to refrain from retaining the services of an
unfit employee.[3]
An
unfit employee is one whose dangerous propensities make him or her
inappropriate for a particular job assignment[4]
and who is likely to cause harm to the public if hired for that position.
D. Elements
Explained
In
this matter, you may hold the employer liable for the plaintiff’s injuries or
damages if you find that [he] [she] [it] was negligent in failing to exercise
due care in hiring, supervising or retaining an unfit individual and that such
negligence was a proximate cause of the plaintiff’s injuries or damages.[5]
In
order to find that the employer failed to exercise reasonable care in hiring
the employee in question,[6]
you must find two things:
One, [insert employer’s name] knew
or had reason to know of the particular unfitness, incompetence or dangerous
attributes of the employee, [insert dangerous employee’s name][7]; and
Two, [insert employer’s name]
could have reasonably foreseen that hiring a person with the employee’s
attributes created a risk of harm to others, whether on or off the premises.[8]
An
employer may be held liable if, during the hiring process or course of
employment, the employer actually knew the employee had an inappropriate or
dangerous characteristic, attribute or tendency that made the employee an
unacceptable candidate for the position.[9] An
employer may also be held liable if reasonable investigation would have
disclosed the employee’s undesirable characteristic, attribute or tendency.[10]
In
determining whether the employer exercised due care in this matter, you must
examine all the circumstances surrounding the hiring and employment of the
employee.[11] Since there is no hard and fast rule as to
what constitutes an appropriate hiring process, you should consider all of the
facts and circumstances of this particular case, including but not limited to:
a) The employer’s application and interview
process;
b) The nature of the job;
c) The checking of references;
d) The nature and extent of information
reasonably available to the employer at the time of hire, including access to
public records of criminal or other convictions;[12]
e) Whether such information was available to
the employer through reasonable, and not extraordinary means, including
extraordinary cost;
f)
The nature of the criminal
conviction, if any; and
g) Whether the pre-hiring investigation of
the employee, if any, was adequate under the totality of the circumstances.
If
you find the employer knew or could have known of the employee’s unfit
characteristic, you must then decide whether the employer could have reasonably
foreseen that such qualities created a risk of harm to others.[13]
Foresight,
not hindsight, is the standard by which an employer’s duty of care must be
judged.[14] The fact that one may look back now and
decide the employee was unfit does not satisfy this element of the claim. The employer must be judged on what [he] [she]
[it] had reason to know at the time
the employee was hired or retained.[15] In deciding if the employer knew or could
have known about the employee’s characteristic and should have foreseen it to
be dangerous, you may take into consideration the following:
1) The nature of the work;
2) The extent to which the employee would or
would not be supervised;
3) Whether the employee would have access to
the home and valuables of the public in general, and the plaintiff in
particular; and
4) The particular vulnerability, if any, of
members of the public to abuse, harm or other loss caused by exposure to a
potentially unsuitable, incompetent or dangerous employee.[16]
E. Proximate
Cause
If
you find the employer, [insert employer’s name], was negligent in the
manner in which [he] [she] [it] hired the employee, [insert dangerous employee’s name],
the employer still will not be liable for the plaintiff’s injury or damage
unless you also find the employer’s negligence proximately caused the
plaintiff’s injury or damage.[17]
This
means that, in order to find the employer liable, you must find that the
employer’s negligence in hiring the unfit employee was a substantial factor
that singly, or in combination with one or more other causes, brought about the
plaintiff’s injury or damage.[18]
Source: https://njcourts.gov/attorneys/civilcharges.html
[1] The Court specifically recognized the
tort of negligent hiring in DiCosala v.
Kay, 91 N.J. 159, 174 (1982). The
Appellate Division first identified the theory in Bennett v. T&F Distrib. Co. ,
117 N.J.
Super. 429 (App. Div. 1971), cert.
den. 60 N.J. 350 (1972).
[3] The focus of the tort of negligent
hiring is on the risk the employer creates by exposing members of the public to
a potentially dangerous individual. DiCosala v. Kay, 91 N.J. 159, 172
(1982). See Id. at 171 (citing Restatement 2d Agency, §213, Comment
d: “Agent dangerous: The principal may
be negligent because he has reason to know that the servant or other agent,
because of his qualities, is likely to harm others in view of the work or instrumentalities
entrusted to him….”). See also Bennett v. T&F Distrib. Co. , 117 N.J.
Super. 429, 445 (App. Div. 1971), cert.
den. 60 N.J. 350 (1972) (“The
protection of innocent third persons is a major interest in favor of a rule
imposing a duty of reasonable care in the selection of employees or independent
contractors who may have vicious propensities”).
[4] “The dangerous quality in the
[employee] may consist of his incompetence or unskillfulness due to his youth
or his lack of experience considered with reference to the act to be performed. An agent, although otherwise competent, may
be incompetent because of his reckless or vicious disposition, and if an
[employer], without exercising due care in selection, employs a vicious person
to do an act which necessarily brings him in contact with others while in the
performance of a duty, he is subject to liability for harm caused by the
vicious propensity….” DiCosala v. Kay, 91 N.J. 159, 171 (1982) (citing Restatement
2d Agency, §213, Comment d).
[5] Alternative Charge: “Therefore, for
you to find (employer) liable for negligent hiring, you must first find (employer) negligent
and then find that [his] [her] [its] negligence
proximately caused the plaintiff’s injuries or damages.”
[6] An
employer may not be held responsible under a theory of negligent hiring,
supervision or retention for criminal or other wrongful acts of its employee if
in the exercise of reasonable care and diligence, a reasonable employer would
not have ascertained the employee’s incompetence, unfitness or dangerous
propensities. In other words, the
employer took reasonable care and diligence in researching that individual’s
background, references, and other relevant information.
[8] DiCosala
v. Kay, 91 N.J. 159, 173
(1982). But see Johnson v. Usdin Louis Co., Inc., 248 N.J. Super. 525 (App. Div. 1991), cert.
den. 126 N.J. 386 (1991) (negligent hiring not found where the
employer could not have reasonably foreseen the employee would steal nitric
acid from the employer and use it to attack his wife and daughter.)
[10] Using the same example of a taxi
driver, the employer may check that the applicant has a license on his person
but not check whether the license was revoked.
Had the employer checked the
status of the license, the employer would have a reason to know that the
applicant was unlicensed.
[12] Insert the following if criminal history
investigation is applicable: “In this
case, the employee, [insert employee’s name], had an undisclosed and
undiscovered criminal history which made [him] [her] unfit and dangerous for
the duties of the position. Liability of
[insert employer’s name], though, is not predicated solely upon [his]
[her] [its] failure to investigate the criminal history of the applicant. With regard to the criminal record of a
candidate for employment, you must consider the totality of the circumstances,
and specifically: (a) What
investigation, if any, the employer could have legally taken; and (b) What
information was reasonably available to the employer at the time of hire.
[13] DiCosala
v. Kay, 91 N.J. 159, 173 (1982). But see Johnson v. Usdin Louis Co., Inc.,
248 N.J. Super. 525 (App. Div. 1991), cert. den. 126 N.J. 386 (1991) (Where the Appellate Division refused to find
negligent hiring judging the employer could not have reasonably foreseen the
employee would steal nitric acid from the employer and use it to attack his
wife and daughter.)
[14] Johnson
v. Usdin Louis Co., Inc., 248 N.J.
Super. 525 (App. Div. 1991), cert.
den. 126 N.J. 386 (1991) (quoting
Hill v. Yaskin, 75 N.J. 139, 144 (1977)).
[16] Lingar
v. Live-In Companions, Inc.,
300 N.J. Super. 22, 23 (1997) discusses these factors at some length.
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