Vicarious liability, also known as “respondeat superior,” is widely known as the liability a supervisory party bears for the actionable conduct of a subordinate or associate based on the relationship between the parties. Vicarious liability is the well-known and widely-feared tort doctrine imposing liability upon employers for the negligence of their employees. However, a lesser-known doctrine simultaneously exists in the same arena. This is the doctrine of negligent supervision. Although a close cousin of vicarious liability, the North Dakota Supreme Court drew a distinct line between the two in Nelson v. Gillette, 571 N.W.2d 332 (N.D. 1997).
What Is Negligent Supervision?
Unlike vicarious liability, negligent supervision is a type of direct liability, rather than indirect. However, unlike a straight negligence claim, negligent supervision is a theory that derives from the vicarious liability doctrine. Put another way, to claim negligent supervision, an employer must have “negligently supervised” an employee who then inevitably acted negligently in the course and scope of employment. Easy, right? The North Dakota Supreme Court’s analysis in Nelson helps make the doctrine clearer, stating, “. . . an employer can be held directly liable for ‘negligent supervision’ whereby the employer fails ‘to exercise ordinary care in supervising the employment relationship, so as to prevent the foreseeable misconduct of an employee from causing harm to other employees or third persons.’” Additionally, Restatement (Second) of Agency § 213 provides,
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders of in failing to make proper regulations; or
(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others:
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.
Importance For Employers
A claim of negligent supervision can come about in a number of ways, including (but not limited to): (1) hiring an employee without sufficient knowledge of their background; (2) failing to give appropriate training and direction to employees; (3) failing to instill policies or codes of conduct in the employment setting. Negligent supervision may affect any type of employer, but bears particular significance for employers supervising “risky” or “dangerous” activities. While some jurisdictions tend to mix negligent supervision and vicarious liability doctrines (e.g., Minnesota), North Dakota parses the two out, potentially subjecting employers to two different theories of recovery for plaintiffs. Knowledge of the ‘negligent supervision’ tort is highly important for employers. The doctrine highlights the importance of providing adequate training, oversight, and policies in the employment setting.
A specific facet of the tort that is of utmost importance to employers is the ‘negligent hiring’ doctrine. Employers generally have a duty to take reasonable care in hiring employees. When an employer hires an employee and knows or should have known that the employee is unfit, incompetent, or dangerous in the employment setting, the employer may be subject to a negligent hiring claim.
Importance For Plaintiffs In Personal Injury Actions
Conversely, the negligent supervision tort is important for plaintiffs who have been injured by an individual acting in the course and scope of their employment. While a plaintiff’s initial thought may be to assert a vicarious liability claim, in addition to that claim, negligent supervision may be worth pursuing in some cases. Importantly, negligent supervision, if properly asserted, imputes direct liability upon the employer. Generally, these claims require plaintiffs to establish (1) the employer did not exercise reasonable care in hiring or supervising the employee; (2) the employee had dangerous tendencies or was incompetent for the job in question; (3) the employee’s dangerous tendencies or incompetence would have been apparent to the employer had it exercised reasonable care; and (4) as a result of the employer’s failure to exercise reasonable care, the employee suffered injury.
A clear example of negligent supervision comes from the Washington case Niece v. Elmview Group Home in which the court determined that the sexual assault of a resident of a group home for developmentally disabled individuals by an employee was legally foreseeable. The court reasoned that although an employer does not have a general duty to guard against the possibility that an employee is dangerous, the employer does have a duty to protect individuals from reasonably foreseeable dangers. In this case, the court determined that the exploitation of a vulnerable resident by an employee of the group home was a foreseeable hazard against which reasonable precautions should have been taken.
It isn’t difficult to think of similar scenarios in which negligent supervision or hiring could come into play. Employers of a trucking company failing to ensure a driver is properly licensed leading to the driver injuring someone on the road; employers failing to provide proper supervision and training to employees utilizing heavy machinery or other dangerous tools leading to the injury of a third party; employers failing to fire an employee who has demonstrated patterns of violence toward others leading to the injury of another; etc. The factual scenarios in which negligent supervision could be present are numerous. Because of the broad scope of this theory, it is imperative for personal injury plaintiffs to understand the necessities of adequately and appropriately pleading their case.
Negligent supervision claims are important for potential plaintiffs as well as for all employers to recognize. Employers should note the existence of the negligent supervision tort and take diligent care in hiring, training, and directing employees. Personal injury plaintiffs in particular need to know and understand the requirements of the tort as its own theory to be utilized in conjunction with vicarious liability. If you or a loved one have been injured and suspect the injuring party was negligently hired or supervised, it is vital you contact an attorney who understands the requirements of these claims. Our personal injury team at SW&L Attorneys is knowledgeable in cases dealing with negligent supervision, negligent hiring, and vicarious liability. To get in touch with our team, call 701-297-2890, or email us at: firstname.lastname@example.org
This article is for informational purposes only.