Wheels of Justice

Negligent hiring, retention and entrustment

Courts describe the difference between negligent hiring and negligent retention/supervision as the time at which the employer is charged with the knowledge of the employee’s unfitness. Negligent hiring occurs when, before the employee is actually hired, the employer knew or should have known of the employee’s unfitness, and the issue of liability focuses upon the adequacy of the employer’s pre-employment investigation into the employee’s background.

Negligent retention/supervision oc-curs when during the course of employment the employer becomes aware of, or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further actions, such as investigating, training, reassignment or discharge.

Negligent hiring liability may arise if a reasonable pre-hire investigation of the employee would have made the employer aware of the danger the employee might pose to third parties. The employer could be exposed to liability if they breach their duty to perform a proper background check.

The test is whether the employer exercised the level of care which, under all the circumstances, a reasonably prudent individual would exercise in choosing an employee for the particular duties to be performed.

A crafty plaintiff attorney will allege negligent entrustment of a driver in an attempt to present evidence of the prior driving history of that driver. A charge of negligent entrustment is an attempt to increase the scope of the admissible evidence and usually results in the judge cautioning the jury not to consider the prior acts of the driver as evidence the driver acted that way in the case in question. This is a hard thing to do and is often called trying to “put toothpaste back into the tube.”

Negligent entrustment arises when the employer negligently pro-vides the driver with a dangerous instrument (a truck) and the driver causes injury to a third party with that truck. The plaintiff attorney is telling the jury the company is negligent because it should have known the driver was incompetent, and since he has a history of bad acts, the company should have to pay even more.

A company can be held legally liable for negligent hiring if they fail to discover a driver’s unfitness by checking their references, background or criminal records. If there is a problem and corrective measures are not taken when the facts come to light, then the company may be sued.

Jim C. Klepper is president of Interstate Trucker Ltd., an organization that provides legal defense protection to commercial drivers. Jim is a lawyer who focuses on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking, and he holds his Commercial Drivers License.