Negligent Hiring: Post-Termination Misconduct

Posted in Negligent Hiring on June 2, 2009

Phillips v. TLC Plumbing, Inc., (4th District, April 3, 2009) — Cal.Rptr.3d. —-, 2009 WL 884938, 09 Cal. Daily Op. Serv. 4215

A woman whose mother was murdered by a former plumbing repairman, filed an action for wrongful death against the plumbing service which had employed him. The plaintiff alleged that her mother met the repairman when he had been dispatched to her home by the defendants, and that they had started a relationship following his termination. The plaintiff further alleged that although the murder occurred two years after the repairman had been terminated, the defendants were aware at the time he was hired that he was on parole, and that he had been convicted of domestic violence and/or arson involving his former wife.

The trial court granted the defendants’ motion for summary judgment, finding that they could not be held vicariously liable for the plaintiff’s injuries because there was no employer-employee relationship at the time of the killing. The court also found that it was not reasonably foreseeable that the repairman would enter into a personal relationship with the victim which would later lead to a shooting and killing two years later. The court of appeal affirmed, holding that an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury inflicted by a former employee:

“Although neither party cited, and we are not aware of, any California case addressing the instant question of law, cases from other jurisdictions support our conclusion that an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury or other harm inflicted by a former employee on the plaintiff even though that employee, as in this case, initially met the plaintiff while employed by the employer. Accordingly, we agree with Defendants’ assertion that because Cain’s tortious act on Judith occurred two years after his employment with TLC was terminated, Defendants did not owe Plaintiff a duty of care at the time of Cain’s tortious act and therefore cannot be held liable on a cause of action for negligent hiring and retention.
. . .
The great weight of case authority from other jurisdictions that have applied the Restatement Second of Agency to posttermination torts by former employees supports our conclusion. Because the employer-employee relationship ends on termination of an employee’s employment, we conclude an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury or other harm inflicted by a former employee on the plaintiff even though that former employee, as in this case, initially met the plaintiff while employed by the employer. Accordingly, we agree with Defendants’ assertion that because Cain’s tortious act on Judith occurred two years after his employment with TLC was terminated, Defendants did not owe Plaintiff a duty of care at the time of Cain’s tortious act and therefore cannot be held liable on a cause of action for negligent hiring and retention.”