Negligent Hiring and Retention in Florida
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 respondeat 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) 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
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
If you have been injured, contact the Law Offices of Michael D. Stewart at:
Or visit us on the Internet at: