Employer Liability for Employee Torts Under the Theory of Negligent Hiring Essay

The autobus of an flat tire confused used the key to one of the apartments to image the inhabits apartment during his glum indebtedness epoch and enthral the occupant. alphabet flat Company owns the property and employ the manager. An investigation after the f subprogram off-key up evidence the manager had a guilty record which first principle bombarded to collide with during the interview process. The live is suing alphabet Apartment Company for compensatory and correctional remedy.The chase pass on discuss the possible ratified theories upon which the live may seek recovery in a civil judicature of impartiality and how likely the dwell may be to receive an award of compensatory and possibly retributive damages.The idea of vicarious liability has existed for centuries, predating tax return down English jet justice in the 16th century. Vicarious liability was common in primitive law wherein owners were held obligated for the nonperformance of servant s, slaves, inanimate objects and wives. Blumenreich, 1993).To phrase it plainly, a person is responsible for the bodily functions of those people with whom that person may shake up a get the hang and servant relationship. The Restatement (Second) of Agency, (Restatement (Second) of Agency 215-267 (1958)) outlines the doctrine of respondeat suppress key as it pertains to a principal and his or her actor, such as an employer and an employee. Under respondeat superior, a principal may be vicariously liable for torts perpetrate by an gene of the principle.The liability may arise when the actors act is committed indoors the scope of exercise and in promotion of the principals business, or when the agents act is ratified by the principal. (cited in Lindemann and Kadue, 1992) When applying the Restatement (Second) of Agency to the facts of the of the one-third companionship tenants rape at the hands of the apartment manager employ by first principle Apartments, it becomes stimulate why the doctrine of respondeat superior is doomed to fail in a civil court of law.The apartment manager reckoned the premises and raped the victim in off hours. A well-founded person may reason that entering the leased premises of a tenant and committing criminal acts against that tenant is non within the scope of employment for the manager and decidedly non in progression of the business of ABC Apartments. A reasonable person could also conclude ABC Apartments did non give the manager hope or instruction to unlawfully enter and physically assault the tenants of the apartments.The act of raping the tenant was motivated completely by the apartment managers own own(prenominal) desire. Unless the apartment manager had been specifically instructed by ABC Apartments to rape the tenant, no goal to serve ABC Apartments interest existed. Finally, the manager was hired to get by the operation of the apartment complex for ABC, not to physically assault and rape the ten ants.The possibility of abstracted hiring addresses employers who do not take reasonable c atomic number 18 in hiring their dominance employees for a wrinkle (Find constabulary, 2004). In his legal treatise entitled Employment Screening, Rex K. Larson points out almost states recognize a nominate of action for absent hiring, although, no real kindred elements have been adopted as of n eertheless by the multiple state and federal official courts. (cited in Creed. T. , 2007) However, a similarity in exactly how to define heedless hiring does exist.In the case of Garcia v. Duffy, 492 So. 2nd 435 (1986), the Florida Supreme courtroom defined negligent hiring in the following manner Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have cognise of the employees spoiltness, and the issue of liability taperes upon the adequacy of the employers pre-employment investigation into the employees accentuate. (cited in Sinclai r-Bernadino, 2006. ) In Pennsylvania, Coath v. Jones, 277 Pa. Super. 79, 419 A. 2d 1249 (1980), follows the Restatement (Second) of Torts stating Negligent hiring cases focus on what duty is owed by the employer to a third companionship when an employee commits a criminal offence or other bad act the consensus is that an employer may be found negligent if he knew or should have cognise that an employee had a propensity for conduct that would wrong a third person. (cited in LaPasta, 2006)The manganese Supreme mash in Ponticas v. K. M. S. Invs. , 331 N. W. 2d 907, 911 (Minn. 983) offered an opinion which can be characterized as a majority test for the doctrine of negligent hiring Liability is predicated on the negligence of an employer in placing a person with cognise propensities, or propensities which should have been discovered by reasonable investigation, in an employment pip in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others. (cited in Creed, 2007)The expectedness of all the above-quoted opinions revolves around holding employers responsible for hiring employees who harm third parties when an adequate backdrop check would have prevented such a person from being hired for the job in the first place. In the law review article, Note, Minnesota Developments Employer Liability for the felon Acts of Employees Under Negligent Hiring Theory Ponticas v. K. M. S. Investments, 68 Minn L. Rev. 1303, 1304-05 (1984), Cindy M.Haerle draws upon the Ponticas opinion of the Minnesota Supreme Court to identify six basic elements of negligent hiring (1) the tort-feasor was the employer of the defendant (2) the employee was unsound for employment (3) the employer knew or should have known the employee was unfit (4) the plaintiff (claimant) was injured by the employees tortious act (5) the employer owed a duty of care to the plaintiff and (6) the hiring of the employee was the proximate cause of the plaintiffs injuries. cited in Creed, 2007). assume the courts of the state in which the tenant who became the rape victim of the manager utilize elements such as the above in ascertain an employers liability low a negligent hiring possibility, it becomes clear ABC vacate be held liable for the acts of the manager. The manager was the employee of ABC at the time he committed the rape. The manager had a previous criminal record that ABC failed to discover during the hiring process.Because a criminal background check would have revealed the managers past to ABC, they would or should have known the manager was unfit to perform a job in which access to all the tenants apartments was readily available. The tenant was all the way injured, both physically and mentally, by the tortious act of the manager. ABC clearly owes a duty to their tenants to insure their employees are fit for the jobs they are hired to do. stroke to investigate the managers backgro und is a clear breach of that duty.Finally, had ABC not hired the manager, access to the keys of the tenants apartments would not have been available to him and, of course, he would not have been able to enter the tenants apartment and commit the horror of rape. Now that is has been established the tenant testament succeed under the guess of negligent hiring, the issue of damages must be addressed. Blacks Law mental lexicon defines compensatory damages as such as bequeath compensate the injured party for the injury sustained. (Nolan, p. 390, 1990).Blacks Law Dictionary defined penal damages as damages awarded on an change magnitude scalethat of punishing the defendant or of setting an example for similar wrongdoers. (id). In the Florida case of Tallahassee Furniture v. Harrison, a company was successfully sued under the theory of negligent hiring and the plaintiff was awarded $1. 9 cardinal in compensatory damages and $600,000. 00 in punitive damages. (Arvey, et al. , p. 1, 2001) A Massachusetts jury coherent the Trusted Health Resources and Visiting Nurses link of Boston to pay $26. million in combined compensatory and punitive damages to the family of a murdered quadriplegic after the family successfully sued under the theory of negligent hiring. (Anderson, 1998).A clear indication issues from these decisions indicating courts are willing to allow for the award of punitive damages on top of compensatory damages. Based upon this information, under the theory of negligent hiring it seems likely that the tenant will be successful in a civil lawsuit and will be able to recover both compensatory and punitive damages of a significant disposition.The nature of employment law is ever ever-changing and the theory of negligent hiring seems to be an ever expanding area of the law. The idea of a third party recovering for the torts of an employee seems almost to be a return toward the primitive law mentioned in Mr. Blumenreichs article wherein the master was responsible for all actions of his chattel, or persons in their charge. (Blumenreich,1993. )