A Case Study: Negligent Hiring and Retention Claims

Posted by: LaShawnda K. Jackson, J. Scott Kirk and Damien A. Orato

09.30.08

Roberts v. TDT, Inc. et.al
Partial summary judgment was granted in favor of TDT, Inc., and its Safety Manager on negligent hiring and retention claims after parents sued TDT, Inc., and two of its employees on behalf of the Estate of their 19 year old son, who died from fatal injuries sustained in a motor vehicle accident involving a tractor trailer accident.  The Court entered partial summary judgment in favor of TDT, Inc., and its Safety Director on claims for negligent hiring and retention because there was no dispute that the TDT, Inc.’s was acting within the course and scope of his employment with TDT, Inc.  Accordingly, there can be no cause of action for negligent hiring and retention when an employee is acting within the course and scope of his employment.  The significance of this ruling is that the driver’s past driving record will not be an issue on the determination of liability for the other claim raised against TDT, Inc., and its driver.  Moreover, TDT, Inc.’s Safety Director is not exposed to a personal judgment against him.

 

Rumberger, Kirk & Caldwell attorneys, J. Scott Kirk, LaShawnda K. Jackson and Damien Orato represented TDT, Inc., and its employees in the case.

 

The Plaintiff filed a lawsuit contending that TDT, Inc. and its driver were liable for the fatal injuries sustained by his son during a motor vehicle accident in 2003.  TDT, Inc., is a transportation company serving the continental United States, from its headquarters in Lake City, FL.  According to the Florida Highway Patrol Traffic Homicide Report, the decedent was traveling southbound on an undivided two-lane highway consisting of a double yellow carline, flashing red traffic signal and stop sign.  A TDT, Inc., employee was driving a tractor trailer eastbound on an undivided two-lane highway consisting of a double yellow centerline and flashing yellow traffic signal.  As the tractor trailer approached the intersection, the decedent pulled from his stop sign and attempted to cross the intersection, pulling into the direct path of the tractor trailer.  Witnesses confirmed that the tractor trailer was driving within the posted speed limit of 55 mph.  Nevertheless, the Plaintiff’s theory of liability was that the driver was speeding and had he not been speeding he would have been able to avoid the accident.

 

The Plaintiff initially sued TDT, Inc., and its driver alleging that TDT, Inc., was vicariously liable for its employee’s negligent operation of the tractor trailer.  TDT, Inc., did not dispute that it was vicariously liable for the actions of its employee who was within the course and scope of his employment.  During the course of litigation, the Plaintiff learned that the TDT, Inc. driver, whom TDT, Inc., had hired approximately eight (8) months before the subject accident, had multiple speeding violations on his driving record.  Under Florida law, the admission of evidence of a party’s past driving record constitutes error under normal circumstances.  See Dade County v. Carucci, 349 So. 2d 734, 735 (Fla. 3d DCA 1977).  However, the Plaintiff attempted to circumvent this law by bringing a negligent hiring and retention claim against TDT, Inc., and its employee who participated in the hiring process of the TDT, Inc. driver.  Under that theory of liability, the Plaintiff argued, the driver’s driving record prior to his hire with TDT, Inc., was at issue and based on the driving record TDT, Inc., should not have hired him as a truck driver.

 

TDT, Inc., and its Safety Director moved for partial summary judgment on the negligent hiring and retention claims.  Plaintiff defended the motion by relying on Petrik v. N.H. Ins. Co., 379 So. 2d 1287 (Fla. 1st DCA 1979) which involved an evidentiary issue as to whether a driver’s history of traffic tickets would be admissible.  In that case, the plaintiff had brought both a vicarious liability claim and negligent hiring and retention claim against an employer of a truck driver.  Nevertheless, the Plaintiff argued that this was the only case in Florida factually on point.  However, the Petrik court never addressed the issue of whether the truck driver was acting within or outside of his course and scope of employment, a critical factor in determining whether a cause of action for negligent hiring and retention claims exist.  In fact, there is no record that the Defendants contested the Plaintiff’s ability to bring both claims. 

 

RKC attorneys argued that the salient issue as to whether a cause of action exists for negligent hiring and retention claims is whether the employee was acting within or outside the course and scope of his employment.  The negligent hiring and retention torts originated with the Florida Supreme Court’s decision in Mallory v. O’Neil, 69 So. 2d 313 (Fla. 1954), wherein the court adopted Restatement (Second) of Torts §317.  Section 317 expressly states that these types of claims only apply when an employee is “acting outside the scope of his employment.”  In 1989 the Second DCA further explained that “negligent hiring or retention allows for recovery against an employer for acts of an employee committed outside the scope and course of employment.”

 Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA 1986) (emphasis added).  When the Florida Supreme Court spoke again on this issue, it was the Garcia case that they relied upon, not Petrik.  See Malicki v. Doe, 814 So. 2d 347, 361 (Fla. 2002).  The Malicki court again emphasized the Court’s adoption of Restatement (Second) of Torts §317 which expressly states it only applies where the employee is acting outside the scope of his employment.

 

Rumberger, Kirk and Caldwell Partner J. Scott Kirk and associate LaShawnda K. Jackson will try the vicarious liability negligent claim against TDT, Inc., and its driver in November 2008.  Both attorneys represent clients in the areas of commercial trucking litigation, casualty defense, products liability, employment and admiralty. 

 
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