Employers can be liable for a worker’s violent acts

Friday, July 18th, 2014
Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law

A recent decision by the Ohio Court of Appeals examines the issue of employer liability for a worker’s harmful acts.  The Twelfth District Court of Appeals clarified when an employer could be liable for injuries caused by a worker’s violent behavior, whether the worker is an independent contractor or an employee.

Worker’s violent behavior leads to a lawsuit

The Spurlocks hired Mr. Hogeback to perform carpentry worker when renovating their farmhouse into a bed and breakfast.  While working for the Spurlocks, Hogeback got into an altercation with an employee of a construction company that was also performing work on the Spurlock property.  Mr. Jackson, who was visiting the site to inquire about work, stepped in to prevent the fight and was injured by Hogeback.

Jackson brought suit against Hogeback and also against the Spurlocks and their business, alleging assault and battery, negligence, vicarious liability and negligent hiring, supervision and retention.   A jury ruled in Jackson’s favor for the claims against Hogeback, but the Butler County Court of Common Pleas granted Spurlocks’ request to release all claims against them and not allow the claims to be decided by the jury.

The case goes to the Court of Appeals

Jackson appealed the trial court’s decision in regards to the Spurlocks, arguing on appeal that the Spurlocks were vicariously responsible for Hogeback’s actions as their employee and also that the Spurlocks were directly liable for failing to exercise reasonable care in controlling Hogeback and for negligent hiring, supervision and retention of Hogeback.

The Twelfth District Court of Appeals reviewed the decision to determine whether the trial court had properly relieved the Spurlocks from liability.   The court quickly narrowed its focus to the claim of negligent hiring, supervision and retention, holding that the trial court was correct in regards to all other claims against the Spurlocks.

Liability for negligent hiring, supervision and retention

A claim of negligent hiring, supervision and retention can create liability for selecting or allowing a person to work when the employer knows or should have known of the hired individual's violent or dangerous propensities.  Under this theory, Jackson had to show that the Spurlocks knew or should have known of Hogeback’s violent propensities and should have foreseen the assault on Jackson.

The court of appeals dispensed with the Spurlocks’ arguments that they should not be liable under this claim because Hogeback was an independent contractor rather than an employee.  Liability for negligent hiring, supervision and retention can arise regardless of whether the assailant is an employee or an independent contractor, said the court.

According to the court of appeals, a review of the court record showed that Jackson had presented evidence that the Spurlocks may have had knowledge of Hogeback’s propensity to use physical violence.  Testimony that Mrs. Spurlock had stated "this has happened before," and "oh, no, not again" when she learned of the fight; that workers had complained to the Spurlocks about Hogeback’s “aggressive and rude behavior”; and that Mrs. Spurlock had attempted to arrange for the workers who complained about Hogeback to be on the property when Hogeback would not be there all pointed to a possibility that the Spurlocks may have known of and anticipated problems from Hogeback’s dangerous propensities.  Given this evidence, the court of appeals concluded that the common pleas judge should have allowed the jury to render a verdict on the issue.

The court of appeals sent the case back to the common pleas court for further proceedings to determine whether there was sufficient evidence on the issue of negligent hiring, supervision and retention.

Implications for employers

We state as a general rule that employers are not usually liable for intentional, harmful acts of an employee when those acts are outside of the employee’s work responsibilities.    The Hogeback v Jackson case is a reminder of exceptions to the general rule:

  • A successful claim of negligent hiring, supervision and retention can result in employer liability for a worker’s bad acts, which requires proof that an employer knew or should have known about the worker’s dangerous propensities and it was foreseeable that the worker’s behaviors could lead to harm. 
  • Negligent hiring, supervision and retention can apply even if an independent contractor, rather than an employee, commits the harmful acts. 

Employers can reduce this risk of liability by using practices and policies to help prevent the hiring and retention of a person who poses risks of harm to others:

  • Investigation into a potential employee or independent contractor’s background through these tools:
    • Job applications that request detailed information about previous employment, reasons for leaving a job, and employer contact information.
    • Reference checks with previous employers and other references.
    • Background checks.  See the Ohio Attorney General’s information about conducting a background check.
    • Drug tests.  Ohio law allows for private companies to conduct drug testing on a non-discriminatory basis.  The Ohio Bureau of Workers’ Compensation offers a Drug-Free Safety Program for eligible employers.
  •  Detection of and reaction to worker behaviors:
    • Monitoring for incidents of unusual, violent or dangerous behaviors.
    • Encouraging employees to report dangerous behaviors in other workers.
    • Policies for corrective actions to take, including termination, upon awareness of dangerous behaviors.
    • Prompt enforcement of all practices and policies.

Read the Court of Appeals decision in the Jackson v. Hogeback case here.

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