Florida Negligent Hiring Case Law
Florida has been on the forefront of the developing doctrine of negligent hiring. Florida courts have recognized an employer’s duty to conduct pre-hire investigation of certain employees. Liability for negligent hiring requires that the plaintiff be in a category of persons to whom the employer owes a special duty of care.
Florida has enacted a statue which covers negligent hiring cases-- Section 768.096 which states:
(1) In a civil action for the death of, or injury or damage to, a third person caused by the intentional tort of an employee, such employee's employer is presumed not to have been negligent in hiring such employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general. A background investigation under this section must include:
(a) Obtaining a criminal background investigation on the prospective employee under subsection (2); (b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment;
(c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action; (d) Obtaining, with written authorization from the prospective employee, a check of the driver's license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or (e) Interviewing the prospective employee.
Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. App. 1980), review denied, 392 So.2d 1374 (Fla. 1981)
An applicant was hired as a laborer to perform outside maintenance duties without a prior inquiry being made into the applicant's past criminal history. After three weeks of employment, the employee was transferred to a position performing interior maintenance work for which he was provided a passkey. The employee subsequently used the passkey to enter a residence and assault the owner. It was later learned that the employee had a criminal record which included convictions for breaking and entering, assault, night-prowling and attempted murder.
The court concluded that while the employer had no responsibility to investigate the employee's criminal history for the outside work position, the employer had a duty to make a reasonable inquiry into the employee's background when he was given access, as part of his job, to residences.
Garcia v. Duffy 492 So. 2d 435 (Fla. Dist. Ct. App. 1986)
Courts will use a test that asks "whether the employer exercised the level of care which, under all the circumstances, the reasonably prudent man would exercise in choosing or retaining an employee for the particular duties to be performed." Moreover, the injury must be proximately caused by the negligent hiring of the employee.
The Court added that negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness, and the issue of liability primarily focuses upon the adequacy of the employer's pre-employment investigation into the employee's background. The difficulty or cost of obtaining information about prospective employees are factors to be considered for purposes of a suit against an employer under the doctrine of negligent hiring.
Furthermore, in order to escape liability for negligent hiring, an employer need not inquire with law enforcement agencies about an employee's possible criminal record, though the employee must regularly deal with the public, provided the employer makes an adequate inquiry or otherwise has a sufficient basis to rely on the employee. Even actual knowledge of an employee's criminal record does not establish, as a matter of law, employer's negligence in hiring him.
Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744 (Fla. App. 1991)
A furniture deliveryman was hired based in part on odd jobs he performed for the employer's managers. No job interview was conducted, no job application was completed, and no references were requested. The deliveryman returned to the apartment of a customer and savagely beat and stabbed her. The deliveryman had a long and violent criminal record which included beating and cutting his former wife with a knife. He was also a drug user who had been hospitalized for psychiatric problems.
The court, in upholding a $2.5 million jury award, concluded that the jury was warranted in finding that the harm to the customer was foreseeable and, indeed, noted that the defendants' witnesses had conceded as much by testifying that they would not have hired the deliveryman if they had known his background.
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