Negligent Hiring

In the mid 1980s, a ten-year-old girl was allegedly raped and sexually assaulted on repeated occasions by Charles E. Ladison, an employee of Victory Tabernacle Baptist Church in Virginia. The child’s mother sued the church and its pastor, Rev. Richard Mears, alleging, among other things, that when Victory Baptist hired Ladison it knew, or should have known, that Ladison had recently been convicted of aggravated sexual assualt on a young girl, that he was on probation for this offense, and that a condition of his probation was that he not be involved with children.  The child’s mother further alleged that despite the foregoing, Ladison was hired and entrusted with duties that encouraged him to come freely into contact with children, that he was given keys that enabled him to lock and unlock all of the church’s doors, that Ladison came into contact with the girl in question at the church, where on one or more occasions he had intercourse with her, and that he had intercourse with her on numerous occasions at locations other than the church.

In delivering it ruling in J. v. Victory Tabernacle Baptist Church, the Virginia Supreme Court held that negligent hiring exists as an independent tort, upon which a party can sue for damages, and in fact that it operates as an exception to the charitable immunity of religious institutions.  To win a negligent hiring case, the Court said, the victim does not need to prove that the negligently hired individual negligently injured the victim.  The fact that the negligently hired employee acts willfully or criminally does not relieve the employer of liability for negligent hiring when willful or criminal conduct is precisely what the employer should have foreseen.

The Victory Tabernacle Baptist Church case is illustrative of the kind of third-party lawsuits frequently filed against employers for negligent hiring practices.  In such cases, the employers are subjected to large damage verdicts because their hiring managers and human resources personnel failed to conduct thorough background checks.  By forgetting to order or review criminal background searches and other relevant background checks, employers become easy targets for lawyers representing personal injury victims and persons claiming property losses or other damages.

In order for a third party to prevail in a case of negligent hiring against an employer based in the misconduct of one of its employees, the third party must satisfy the elements of the following five-part test:

  1. The existence of an employment relationship;
  2. The employee’s incompetence or dangerous tendencies;
  3. The employer’s actual or constructive knowledge of the incompetence or dangerous tendencies;
  4. The employee’s act or omission causing the Plaintiff’s injuries;
  5. The employer’s negligence in hiring or retaining the employee as the proximate cause of Plaintiff’s injuries.

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