As per the Kentucky law, an employer can be held liable personal injury if it knew or should have known that its employee was a risk to a third party and caused him or her to be injured. That’s what’s known as the law of negligent hiring, retention and supervision.
Negligent Hiring, Retention and Supervision vs. Vicarious Liability
The law of negligent hiring, retention and supervision shouldn’t be confused with the law of vicarious liability. Pursuant to the law of vicarious liability, an employer can be held vicariously liable for the wrongful act or omission of its employee, even though the employer itself didn’t commit the act or omission. The employee need only be acting in the course of his or her employment when injuries and damages occurred. In a case involving negligent hiring, retention and supervision, an employee would be acting outside of the course of his or her employment, but while he or she was still “on the clock.” Kentucky permits allegations of both vicarious liability and negligent hiring, retention and supervision to be raised in the same lawsuit.
Oakley vs. Flor-Shin, Inc.
The above-noted Kentucky case is an example of negligent hiring, retention and supervision. The plaintiff Oakley was an 18-year-old employee of Flor-Shin. Her job involved cleaning and shining floors in grocery and big box stores. On the night in question, Oakley was at a K-Mart store to clean floors after business hours along with her district supervisor who sexually assaulted her inside of the store. At the time of the assault, they were the only two people in the store. Her lawsuit consisted of three counts. First was a count against the supervisor. The next two counts were for vicarious liability against Flor-Shin and negligent hiring, retention and supervision of the supervisor by Flor-Shine. On the negligent hiring, retention and supervision count, she alleged the following:
- Her supervisor had an extensive criminal record prior to being hired by Flor-Shin.
- He had also previously been arrested for criminal attempt to commit rape and carrying a concealed deadly weapon.
- Flor-Shin knew or should have known about the supervisor’s criminal history.
- In its contract with K-Mart, Flor-Shin agreed to perform criminal background checks on its employees, but it failed to do so with this employee.
- Flor-Shin knew that Oakley would be locked inside of the K-Mart store alone with her supervisor.
Elements of the Legal Wrong
In order to prove negligent hiring, retention and supervision, Oakly was required to prove the four elements that follow:
- That her supervisor was unfit or incompetent to perform the work that he was hired for.
- That the employer (Flor-Shin) knew or should have known that the supervisor was unfit or incompetent for the job, and that unfitness or incompetence caused a risk of harm to Oakley.
- Oakley was injured as a result of that unfitness or incompetence.
- That Flor-Shin’s negligence in hiring, retaining and supervising Oakley’s supervisor caused Oakley to be harmed.
As Oakley was able to prove the elements of negligent hiring, retention and supervision, she was able to pursue compensation for her injuries and damages on that count. Her count for vicarious liability against Flor-Shin was dismissed as the conduct of her supervisor didn’t occur in the scope of his employment.
Damages in any personal injury case can be substantial and far beyond the ability of an ordinary employee to cover. Employers typically have considerably more money than their employees along with insurance. Those are the considerations behind both vicarious liability and negligent hiring, retention and supervision. If you believe that you suffered damages as a result of either negligent hiring, retention or supervision anywhere in Kentucky, contact us at Kaufman & Stigger, PLLC, and you can arrange for a free consultation and case review with a quality personal injury lawyer from our law firm. After answering your questions, all of your legal options can be discussed too.
Contact a Personal Injury Lawyer in Kentucky
Do you have more questions about negligence per se in Kentucky? Speak to a member of legal team today to learn more about our state’s accident laws. If you or a loved one have been injured due to someone else’s negligence, do not wait another minute, call us right now at Kaufman & Stigger, PLLC at (502) 458-5555 to discuss your case and get the help you deserve.