“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at 1054.) To be liable for negligent supervision and hiring, there must be a connection between the employment and injury. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.)

Required elements for negligent hiring, supervision, and retention of an employee:

1. the employee was unfit or incompetent to perform the work for which he or she was hired;
2. the defendant “knew or should have known” that the employee was unfit or incompetent and that this created a particular risk to others;
3. the employee’s unfitness or incompetence harmed the plaintiff, and;
4. the defendant’s negligence was a substantial factor in causing the harm.

(Judicial Council of Cal. Civ. Jury Instns. (Mar. 2019 rev.) CACI No. 426; see also see Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564–65.)

Thus, liability for negligent hiring, supervision, and retention of an employee will only be imposed on an employer if it knew or should have known that hiring the employee created a particular risk or hazard. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139; also see Doe v. Capital Cities, (1996) 50 Cal.App.4th 1038, 1054.)

Examples of the Courts Applying This Rule

In Deutsch v. Masonic Homes of California, Inc. (2008) 164 Cal.App.4th 748, 783, the Court of Appeal explained that “[i]f liability results it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business at hand... Liability results... because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment.” (Id.)

In Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395, the Court of Appeal explained that “there can be no liability for negligent supervision in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.” The Juarez Court went on to affirm the trial court’s grant of summary judgment for the Boy Scouts on plaintiff’s negligent hiring, retention, and supervision cause of action because “there was nothing in [the scoutmaster’s] background and nothing that was made known to the scouts during his tenure as scoutmaster...that could be deemed a specific warning that [the scoutmaster] posed an unreasonable risk to minors.” (Id.at 397.)

In Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, a victim of childhood sexual abuse sued a church for negligent hiring, supervision, and retention, claiming that the church should have known of the abuser-priest’s sexual propensities. The court disagreed noting, “the church had no actual knowledge of [the priest’s] sexual activity with [the plaintiff] or anyone else until it heard [plaintiff’s] mother’s report and [the priest’s] purported admissions.” (Id.)

In Chaney v. Superior Court (1995) 39 Cal.App.4th 152,154-155, a family friend was sexually abused as a minor during visits to the abuser’s home. (Ibid.) She sued the abuser’s wife under a theory of negligent supervision. (Id.) The Court held that the wife’s demurrer should have been sustained because the allegations were insufficient to show that the wife had actual knowledge of her husband’s deviant propensities, explaining saliently, that “[i]t is not enough to allege that the sexual misconduct was conceivable. The plaintiff must allege facts showing that it was foreseeable, i.e., facts from which it can be inferred that the wife must have known that her husband was engaging in, or wished to engage in, acts of sexual misconduct with a minor.” (Id. at 158.)