Does Anyone KNOW the Law in Louisiana on Negligent Hiring, Supervision and Entrustment?
Louisiana law recognizes a cause of action for breach of an employer’s duty to exercise reasonable care in hiring, training and retaining employees, and such cause of action is independent of a cause of action for respondeat superior (or vicarious liability) and it may be asserted directly against an employer. Roberts v. Benoit, 605 So.2d 1032 (La. 1991); Central Mutual Insurance Co. v. Caine, 377 So.2d 579 (La. 1979). BUT WAIT!!
Typically, if there was no cause of action for vicarious liability, then the claims of negligent hiring, supervision and entrustment were also dismissed.
That general rule was not followed recently in the case of Powell v Gramercy Insurance Company, where the trial court granted defendant’s summary judgment on plaintiff’s claim for vicarious liability (employee who struck defendant’s customer) but did not address other issues of employer’s negligence in training and supervision of the employee, in providing a safe place for purchaser to do business with employer. The defendant did not raise those issues in its motion for summary judgment or at the hearing on the motion.
In my humble opinion the Fifth Circuit of Louisiana was wrong when it ruled that the judgment was not final. With those remaining claims, employer should not have been dismissed as a party to the litigation. The appeal was dismissed as premature, and the matter was remanded. No. 12-CA-564 (3/13/13).
For your information, the Fifth Circuit is comprised of four parishes, including Jefferson, St. Charles, St. James, and St. John the Baptist.
Prior decisions and arguments on negligent hiring, supervision and entrustment:
Louisiana courts have held that before any liability could be imposed upon an employer or supervisory employee for alleged negligence in hiring, training or supervision of an employee, a plaintiff has to show that the employee was negligent in the action for which plaintiff claims injury and that the negligence was causally linked to the plaintiff’s damages. Lacking such evidence, even if there were negligence on the part of the employer, it could not be linked to plaintiff’s damages. See Perry v. City of Bogalusa, et al., 804 So.2d 895, 899-900 (La.App. 1st Cir., 12/28/01).
In Perry, plaintiff filed suit against the City of Bogalusa, the city police chief (“Agnew”), and unnamed city police officers, A, B, C, and D. Plaintiff owned a home which was struck and damaged when officers in pursuit of drug suspect, who was exceeding the speed limit and running stop signs, eventually crashed into the front of plaintiff’s house. Plaintiff was in the home at the time of the accident, but was not physically injured. Plaintiff sought damages for the property damage to his house and the “extreme mental anguish” he allegedly suffered when he heard and felt the impact and witnessed the police conduct in the arrest of the suspect following the impact. Plaintiff alleged that the accident was caused by a high speed automobile chase initiated by Officer “A” and participated in by the other officers, all of whom he claimed were negligent in taking this action. Plaintiff also claimed that the City was negligent in hiring the police chief, who was negligent in failing to provide supervision, training and standards for his officers.
The City and Agnew filed answers and later filed a motion for summary judgment, supported by the petition, their answers and deposition testimony. After a hearing, the court concluded that the damage to plaintiff’s property was caused by the negligence of the suspect and, therefore, found no negligence on behalf of the City or Police Chief Agnew. The trial court granted the defendants’ motion for summary judgment regarding plaintiff’s claims against the City and Agnew. Plaintiff appealed the dismissal of his claims.
The Court of Appeal of Louisiana, 1st Circuit held that, “Perry’s claim against the City is that it was negligent in hiring Agnew; he alleges Agnew was negligent in training and supervising the city police officers. Under the facts of this case, before any liability could be imposed on the City or Agnew, Perry would have to show that the police officers were negligent in their handling of the pursuit of Mingo (drug suspect), such that their actions caused Mingo’s loss of control of the vehicle. Lacking such evidence, even if there were negligence on the part of the City or Agnew, it could not be causally linked to Perry’s damages.” Perry, 804 So.2d at 899-900. The Court affirmed the decision of the trial court to dismiss the plaintiff’s claims of negligent hiring, training, and supervision against the City and Agnew.
Without first proving the negligence of an employee , any evidence of allegations pertaining to the negligent hiring, retention, training, and/or supervision is irrelevant and its presentation before the jury unfairly prejudicial to Defendants.
In Mays v. Pico Finance Company, Inc., 339 So.2d 382 (La.App. 2nd Cir., 11/01/76), the Court addressed the issue of whether an employer (“Pico”) had been negligent in hiring an employee (“Shockley”) who committed an intentional tort upon a third party. Shockley had been hired by Pico as an assistant manager of its Ruston office and had been working at Pico for approximately 4 ½ months at the time he lured plaintiff (“Mays”), a prospective job candidate, to Monroe for an interview where he raped her three times in a hotel room. Among the claims made by Mays, was the allegation that Pico was negligent in hiring Shockley and that such negligence was a legal cause of the harm to her. The trial court found that Pico was not liable vicariously as the employer of Shockley under LSA-C.C. Art. 2320 as Shockley was not acting within the course and scope of his employment with Pico at the time Mays was raped. The jury also found that Pico was not negligent in the hiring of Shockley. Mays appealed.
The Court first agreed with the finding of the trial court that Shockley was not acting within the course and scope of his employment with Pico at the time that he committed the rape of Mays under the test outlined by the Louisiana Supreme Court in LeBrane v. Lewis, 292 So.2d 216 (la. 1974) and that Pico was not vicariously liable for the acts of Shockley. Addressing the issue of whether or not Pico had been negligent in the hiring of Shockley, the Court of Appeal of Louisiana, Second Circuit reviewed the facts presented to the trial court and found that:
(1) Pico did not make more than a cursory check of Shockley’s background;
(2) a thorough investigation by Pico would have revealed that Shockley had pled guilty to theft, was an alcoholic, and had personality problems; and
(3) there was no evidence of past sex offenses.
The Court agreed with the trial court that Shockley’s past history could not reasonably lead Pico to anticipate that he might commit rape. Mays, 339 So.2d at 385. Further that even if Pico had a duty to protect plaintiff form the actions of an “off-duty” employee, the harm suffered by plaintiff could not have been foreseen and that a man with a past history of only crimes against property will commit rape. Pico was found not liable on the basis of negligence.
Conclusion: You never know how cases will be ruled on in Louisiana. Despite precedent, Louisiana has a history of NOT recognizing stare decisis. You have to fight the good fight and prepare your best arguments. Never, never, never give up.
As always, if there is anything we can do for you in North Louisiana or Northeast Texas, feel free to call day or night.