New York Court Limits Negligent Hiring Claims
Negligent hiring occurs where an employer hires or retains an employee who is unfit for his or her position, with knowledge of the employee's unfitness, and where an injury to a third party results. Under the related doctrine of respondeat superior, an employer is liable for injuries caused by an act of its employee only if the act was committed within the scope of the employee's employment; that is, if the injury was of the type that can normally be expected to arise out of employment of that nature. Negligent hiring claims, on the other hand, provide a mechanism by which third parties may hold an employer liable in a broader range of circumstances, for acts of its employees which are unlawful or committed outside the scope of employment. Courts in both New York and California have long recognized such claims. See, e.g., Haddock v. City of New York, 75 N.Y.2d 478, 553 N.E.2d 987, 554 N.Y.S.2d 439 (1990) (City could be held liable for negligently hiring a parks department employee who raped a child where employee had a history of violent offenses and, in hiring the employee, City failed to comply with its own hiring and screening procedures); Evan F. v. Hughson United Methodist Church, 8 Cal.App.4th 828, 10 Cal.Rptr.2d 748 (1992) (Church could be held liable for negligently hiring a pastor who allegedly molested parishioner's child where, prior to hire, the church failed to investigate allegations of prior similar misconduct by the pastor).
There are three elements of a negligent hiring claim. First, the employee must be unfit for employment. This determination is based on the nature of the job and the likelihood that the hiring of an unfit employee will cause harm to others. Second, the employer must have actual or constructive knowledge of the employee's unfitness. For example, when an employer actually knows of damaging facts concerning an employee's prior record or dangerous inclinations, an employer will most likely be held liable for any foreseeable harm to others which results. Further, an employer may be held to possess constructive knowledge of the employee's unfitness where it would have been disclosed by a reasonable inquiry or investigation. The third element of a negligent hiring claim is that the employer's hiring of the unfit employee must be the cause of the third party's injury.
An appellate court in New York recently relied upon public policy considerations to limit the circumstances in which an employer may be held liable for negligent hiring. Ford v. Gildin, 200 A.D.2d 224, 613 N.Y.S.2d 139 (1st Dep't 1994). In Ford, the defendant landlord hired Howard Taylor as a building porter in 1964. Unbeknownst to the landlord, Taylor had pleaded guilty to manslaughter in 1955 and had served five years in prison. The plaintiff, Vera Ford, moved to the building in 1967 where she and Taylor, who resided in the basement apartment, became friends. Subsequently, Taylor became the godfather of Ford's newborn daughter Timia, and Taylor was often permitted to be with the child unattended. In 1987, it was discovered that Taylor had been sexually abusing Timia, then thirteen years old, for the previous five years.
Ford brought suit against the landlord, claiming negligence in the hiring and retention of Taylor. The lower court denied the landlord's motion for summary judgment, but the Appellate Division reversed and dismissed the claim.
The court cited several reasons in support of its ruling. First, the court found that there were no facts suggesting that the landlord was negligent in the hiring of Taylor as a porter. Specifically, there was no proof that the landlord had failed to follow its regular hiring procedures or had otherwise acted in a careless fashion. Second, even if the hiring of Taylor was negligent, Ford's injury eighteen years later did not result from that negligence. It was simply not foreseeable that Taylor, who had previously committed manslaughter, would molest a child some twenty-seven years later. Moreover, Taylor's unsupervised visits with Ford's daughter resulted from Ford's close relationship with Taylor; this was an independent and unforeseeable intervening event, which severed any causal relationship between the landlord's hiring of Taylor and the injuries to Ford's daughter.
Finally, the court reasoned that even if the landlord knew of Taylor's conviction for manslaughter before hiring him as a porter, the landlord should not be subject to liability for criminal acts committed by Taylor twenty-seven years after his prior conviction and eighteen years after he was hired. A contrary result, the court concluded, would frustrate the public policy that encourages the hiring of ex-offenders: "if in this case we were to allow that Taylor's conviction for manslaughter in 1955 could lawfully have stood as a bar to his employment as a porter in 1964, then we would be determining that Taylor could have been denied any employment for the more than 20 years that he worked for the [landlord] until he was arrested for molesting Timia Ford." Thus, the court reversed the lower court decision and granted the landlord's motion for summary judgment, dismissing the claim of negligent hiring.
Although the Ford decision is a favorable development for employers, the case clearly involved relatively unique facts and does not disturb the basic principles imposing liability for negligent hiring. Prudent employers will continue to recognize that, to reduce the likelihood of negligent hiring liability, they should make reasonable efforts to investigate the background of potential employees, should document the results of those efforts, and should retain those records both during the employee's employment and for at least three years after the end of the employment relationship, to be certain that any applicable statutes of limitations have expired.