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Negligent Hiring and Retention in Florida

The Law Offices of Michael D. Stewart

In Florida, an employer in certain circumstances can be held liable for the injuries caused by their employees. This usually occurs under a theory of respondent superior when the employee is acting within the scope of the employment. Thus is if a moving company employee is involved in an accident while delivering furniture, the injured plaintiff could sue both the employee and the employee's company. A different question is raised, however, when an employee commits an act independent of the work he is hired to do, such as assaulting a member of the public at the place of business.

In these circumstances, the employer can be held liable for the independent acts of the employee under a different set of rules. Generally in Florida, there is no duty to control the conduct of a third party, such as preventing them from another, unless there is a "special relationship" between the parties. In other words, there is no duty unless:

  • a special relation exists between the actor and the third parson which imposes a duty upon the actor to control the third person's conduct or b) a special relation exists between the actor and the other which gives the other a right to protection. K.M. ex rel. D.M. v. Publix Super Markets, Inc., 895 So.2d 1114, 1117 (Fla. 4th DCA 2005).

Florida generally holds that in the case of willful torts of employees, the employer can be held liable if they know or should have know of the danger of the employee to others, - i.e. it was reasonably foreseeable that the employee could be a danger to others. This leads to the question of whether the employer has seen the employee commit bad acts in the past, or whether the employer has done a sufficient background check on the employee to be on notice of the employees propensity to commit such acts.

Negligent retention of an employee occurs where the employer was aware or should have become aware of issues with the employee which could cause problems to third parties, but fails to take actions such as further investigation, firing or reassignment of the employee for the protection of third parties.

The difference between negligent hiring and negligent retention is based on the timing in which the employer know or should have known about an issue with the employee. With negligent hiring it will be argued that the employer did not conduct a sufficient background check on the employee, and that this negligence led to a problem with a third party. Negligent retention is when the employee has caused or is likely to cause a problem with a third party but the employer failed to take action at this point.

Often, when an attorney is confronted with filing a lawsuit against an employer, various causes of action may be brought at once, negligent hiring, negligent supervision, negligent retention, and vicarious liability.

If you have been injured, contact the Law Offices of Michael D. Stewart at: 866-438-6574 Or visit us on the Internet at: www.TheMiamilaw.com

Call for a Free Consultation: (305) 590-8909