AMI 709A Issues—Liability of Employer for Negligent Hiring, Supervision, or Retention of Employ...

Do not use the bracketed last paragraph if the case is submitted on interrogatories.

This instruction is based on Saine v. Comcast Cablevision of Arkansas, Inc., 354 Ark. 492, 497, 502, 126 S.W.3d 339, 342, 345 (2003) (describing elements of negligent hiring, supervision, and retention claims) and Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 345 Ark. 555, 567–569, 49 S.W.3d 107, 115–16 (2001) (discussing negligent supervision claim). See also Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997) (discussing negligent hiring claim); St. Paul Fire & Marine Ins. v. Knight, 297 Ark. 555, 764 S.W.2d 601 (1989) (discussing negligent hiring claim).

Negligent hiring cases typically involve an alleged failure to perform an adequate background check. See Saine, 354 Ark. at 502, 126 S.W.3d at 345 (describing the showing a negligent hiring plaintiff must make). The court in Saine further stated that the plaintiff also must prove “a direct causal connection between an inadequate background check and the criminal act for which the appellant is attempting to hold the employer liable.” Id.

Negligent supervision and retention cases hinge on the element of foreseeability of the employee's actions. Employers have a “limited duty to control an employee for the protection of third parties even where the employee is acting outside the scope of employment,” but the employer is not liable for such conduct unless “the employer knew, or in the exercise of reasonable care[] should have known[,] that the employee presented a risk of danger to others.” Regions Bank & Trust, 345 Ark. at 568, 49 S.W.3d at 113. See also Saine, 354 Ark. at 497, 126 S.W.3d at 342 (stating that under theories of negligent supervision and retention, employer liability rests on proof that employer knew or should have known that employee's conduct would subject third parties to unreasonable risk of harm).

Claims for negligent supervision have been upheld in cases in which an employer was put on notice of the risk of harm because the employer knew of the employee's prior misconduct, Saine, 354 Ark. at 500, 126 S.W.3d at 344 (employee had made inappropriate comments of a sexual nature regarding a female customer and had unlocked her windows), Sparks Regional Medical Center v. Smith, 63 Ark. App. 131, 133–134, 976 S.W.2d 396, 398 (1998) (prior act of sexual contact and conversation with female patients), or because the employer had hired “two ex-convicts, one of whom had been drinking,” to forcibly eject patrons, American Automobile Auction, Inc. v. Titsworth, 292 Ark. 452, 455, 730 S.W.2d 499, 501 (1987) (“foreseeable consequence of using inebriated ex-convict bouncers is that they might use too much force in carrying out their duties in ejecting patrons from a bar”). Such claims have been rejected when plaintiff failed to produce evidence of prior misconduct by the employee. Regions Bank & Trust, 345 Ark. at 569, 49 S.W.3d at 116 (criminal sexual abuse of patient by newly-certified nursing assistant was not foreseeable where employee had no prior criminal record or history of patient abuse); Porter, 329 Ark. at 138–139, 948 S.W.2d at 86–87; St. Paul Fire & Marine Ins., 297 Ark. at 562, 764 S.W.2d at 605.

In Regions Bank & Trust, which involved sexual abuse of a nursing home patient by a nursing home employee, the court explained the distinction between a claim for negligent supervision, which is based on the relationship between the employer and the employee, and negligent patient care, which is based on the relationship between the care provider and the patient. 345 Ark. at 563–64, 49 S.W.3d at 112–13 (quoting Niece v. Elmview Grp. Home, 131 Wash. 2d 39, 929 P.2d 420 (1997)). Proof of a claim for negligent patient care, because it imposes a duty to protect patients from all foreseeable harms, subsumes a claim for negligent supervision. Regions Bank & Trust, 345 Ark. at 564, 49 S.W.3d at 113.

A claim for negligent supervision “provides a remedy to third parties who otherwise would not be able to recover under respondeat superior because of the scope of employment requirements.” Sparks Reg'l Med. Ctr., 63 Ark. App. at 135, 976 S.W.2d at 399. But if a defendant employer or principal admits vicarious liability for the negligence of the employee or agent, the plaintiff may not pursue a claim for negligent entrustment, hiring, or retention against such defendant. Elrod v. G&R Constr. Co. 275 Ark. 151, 154, 628 S.W.2d 17, 19 (1982) (defendant employer admitted liability under respondeat superior for employee's wrongful conduct); Kyser v. Porter, 261 Ark. 351, 358, 548 S.W.2d 128, 132 (1977) (defendant parents admitted liability under parental liability statute for negligence of minor).

Because they do not rest on the provision of professional services, claims against attorneys for negligent hiring and supervision are not covered by the Arkansas privity statutes, Ark. Stat. Ann. §§ 16-22-310, 16-114-303. Madden v. Aldrich, 346 Ark. 405, 413–14, 58 S.W.3d 342, 349 (2001) (claim for negligent supervision of defrauding employee attorney upheld against employer attorney who was aware of employee's previous misconduct). See also Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, at 11–12 (noting exemption but ruling that conclusory complaint was insufficient to make out a claim for negligent hiring); Nielsen v. Berger-Nielsen, 347 Ark. 996, 1005–07, 69 S.W.3d 414, 419–20 (2002) (ruling that claim against wife's attorney for “breach of implied promise” in connection with divorce action was covered by privity statutes rather than Madden).

For a discussion of the torts of negligent hiring of independent contractors and employees, and negligent supervision and retention of employees, in an opinion declining to recognize a tort for “negligent credentialing,” see Paulino v. QHG of Springdale, Inc., 2012 Ark. 55, at 12–13.

See generally Restatement (Second) of Agency § 213 (1958); Restatement (Third) of Agency § 7.05 (2006); Restatement (Second) of Torts, § 317 (1965).