Recently retained by a woman to investigate her allegations that she was sexually abused while a patient at a local health care facility. It is not unusual in these cases that the corporate defendant moves to dismiss, arguing the any improper conduct on the parts of its employee was “beyond the scope” of the employee’s specific duties. [In fact, for a good example of an employer clinging to the “beyond the scope” see my February 23, 2009 post about McDonald’s].

In order to get around that defense, plaintiffs frequently include negligent hiring counts in the complaint. An action for negligent hiring or retention of an employee requires the plaintiff to plead and prove: (1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff’s injury. The third element, proximate cause, is typically the battleground in these cases. When proceeding under a negligent hiring theory, the proximate cause of plaintiff’s injury is the hiring or retention of the employee, NOT the wrongful act of the employee.
And the Courts of Illinois take a hard look at the proximate cause issue. In one case a cable installer sexually assaulted a customer in her home while on the job. The plaintiff filed suit and included a count for negligent hiring. The evidence revealed that an investigation into the employee’s background would only have revealed that he had a history of traffic violations. The Court ruled that knowledge about the traffic offenses would not have put the employer on notice that the employee might assault a customer. In another case, a bus driver sexaully assaulted a student while driving that student home. The parents of the child filed suit against the bus company alleging negligent hiring. That case was dismissed as well. The evidence showed that an investigation into the employee’s background would have only revealed a history of tardiness. The trial made a determination that there was logical relationship between that fact and the ultimate assault.
The case law seems to suggest that to prove the proximate cause element, some key facts will be necessary. First, one must show that the employee, prior to the employment had engaged in improper or violent acts. In addition, the plaintiff should plan on showing that the employee then engaged in similar acts while employed. Finally, the plaintiff should be prepared to demonstrate that the employer could have learned of the employee’s violent propensities if a proper investigation had been undertaken PRIOR to the employment. Not exactly an easy burden.