Negligent Retention and Supervision

What is negligent retention and supervision?

An employer may be liable for an employee’s intentional torts committed outside the scope of employment if the employer negligently retained or supervised the employee. Liability stems from the continued employment of someone the employer knows or should know is dangerous, incompetent, or liable to harm others. An action for negligent retention and supervision is distinct from an action based on vicarious liability, which is appropriate in cases where the employee acted within their scope of employment.

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What legal issues typically arise related to negligent retention and supervision?

The following legal disputes are among the most common to negligent retention and supervision:

• Duty of care: Determining whether an employer had a legal duty of care to the plaintiff can be a complex issue, as it depends on the case’s specific circumstances.
• Comparative negligence: Florida follows a pure comparative negligence rule, meaning that the court considers the plaintiff’s negligence when determining the plaintiff’s recovery. If the plaintiff is partially at fault, the court reduces damages accordingly.
• Statute of limitations: Florida has a four years statute of limitation for negligence claims.
• Proof of causation: The plaintiff must prove that the defendant’s negligence caused the plaintiff’s damages.
• Proving standard of care: The plaintiff must prove that the defendant did not act with the level of care that a reasonable employer would have acted in similar circumstances.

Additionally, the following are common incidents underlying negligent retention and supervision claims:

• A trucking company fails to terminate a driver with a history of reckless driving, resulting in an accident.
• A construction company fails to properly supervise employees, resulting in an injury to a third party.
• An employer fails to terminate an employee with a history of dishonesty, resulting in financial loss to clients.
• A hospital fails to properly supervise and monitor the actions of a nurse or doctor, resulting in physical harm to a patient.
• A financial institution fails to properly supervise employees, resulting in fraud that harms customers.

What are relevant laws related to negligent retention and supervision in Florida?

Both statutory law and common law govern negligent retention and supervision claims. Under the Florida Statutes, Section 95.11 sets the statute of limitations for negligence claims in Florida, typically four years from the date of the injury. Additionally, Section 768.81 sets forth the rules for comparative negligence in Florida, which states that the plaintiff’s negligence will be considered in determining the plaintiff’s recovery.

In Florida, courts have recognized claims for negligent retention and supervision in many contexts. This case law has been critical in establishing what must be proven by the plaintiff and what defenses are available to the defendant in a negligent retention and supervision case.

What is required to prove a case of negligent retention and supervision in Florida?

• Employer duty of care: The plaintiff must show that the employer had a duty of care to the plaintiff by proving one of the following:
  • That both the plaintiff and the employee were in places where each had a right to be when the wrongful act occurred;
  • That the plaintiff met the employee as a direct consequence of the employment; or
  • That the employer would have received some benefit, even if it would only have been a potential or indirect benefit, from the meeting of the employee and the plaintiff had the wrong not occurred;
• Failure of duty of care: The plaintiff must show that the employer failed to conform to the duty of care by showing the following:
  • The employer had notice that the employee may be unfit for the employment in question; and
  • It was unreasonable for the employer not to reassign the  employee or terminate the employee’s employment; or
  • The actions taken by the employer after receiving notice were unreasonable under the circumstances;
• Causation: The plaintiff must show that the employer’s breach of duty was the cause of the plaintiff’s harm or injury; and
• Damages: The plaintiff must show that they suffered actual harm due to the employer’s breach of duty.

When a set of facts is appropriate to meet the requirements of negligent retention and supervision, there are many paths a claimant may take. We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path forward to seek appropriate remedies, such as:

• Compensatory damages
• Punitive damages
• Injunctions

What are common defenses to negligent retention and supervision in Florida?

The primary defenses to negligent retention and supervision in Florida include:

• Assumption of risk: This defense could assert that the plaintiff voluntarily assumed the risk of injury when they engaged in the activity that led to their injuries.
• Comparative negligence: This defense counters that the plaintiff and the defendant were both negligent, so the court should reduce the plaintiff’s damages in proportion to their negligence.
• Statute of limitations: This defense argues that the plaintiff did not file their lawsuit within the time frame allowed by law, typically four years in Florida.

When defending against a negligent retention and supervision claim in Florida, one core strategy is to focus on disproving the elements of duty or breach by providing evidence of the employer’s diligence in vetting the employee or demonstrating that there is no relationship between the employee’s employment and the plaintiff. This evidence often requires presenting witness testimony, documents, or other evidence to show that the employer acted reasonably.

To see what defenses may be available for your unique situation, please contact our office to set up your initial consultation.

Have more questions about a negligent retention or supervision-related situation?

Crucially, this overview of negligent retention and supervision does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain a tireless advocate every step of the way. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to set up a consultation.