Day on Torts - New Post: Dismissal of negligent retention claim affirmed

Dismissal of negligent retention claim affirmed

Posted: 03 Mar 2021 05:47 AM PST

A plaintiff alleging negligent retention “has the burden of showing that the employee or independent contractor was not qualified to perform the work for which he was hired,” and that “the employer had knowledge of the employee’s unfitness for the job.” (internal citations omitted).

In Parker v. ABC Technologies, Inc., No. M2020-00675-COA-R3-CV (Tenn. Ct. App. Feb. 23, 2021), plaintiff filed a pro se action against his former employer and two managers from the former employer for negligent retention, among other claims. In a brief analysis, the Court of Appeals affirmed dismissal of this case, finding that plaintiff had not pled sufficient facts to support his claim.

The Court explained that a plaintiff alleging negligent hiring, supervision, or retention of an employee must show, “in addition to the elements of a negligence claim[,] that the employer had knowledge of the employee’s unfitness for the job.” (internal citation omitted). In this case, plaintiff named two managers from his former place of employment as defendants. The Court ruled that these managers, as employees of the company, “could not also assume the role of employer and ‘retain’ their own employment,” so the negligent retention claim against them failed.

Regarding plaintiff’s negligent retention claim against the company, the court ruled that plaintiff’s allegations regarding the managers’ unfitness for their jobs were “conclusory and unsupported by any factual allegations elsewhere in the complaint.” With respect to the third shift manager, plaintiff stated that he “created a hostile work environment and was accused of inappropriate touching of female associates.” The only factual support for this allegation, though, was a claim that the third shift manager told a forklift driver he did not have to follow plaintiff’s instructions. Further, there were no allegations in the complaint that the company knew about any inappropriate touching claims. Regarding the HR manager, plaintiff stated that she “had a pattern of terminating employment,” but the Court noted that this behavior “would seem to result squarely from her responsibilities as the HR manager.” Because there were not sufficient facts in the complaint to support the claim that defendant company knew the two managers were unfit for their jobs, dismissal was affirmed.

The analysis in this pro se case is short, but it is a good reminder to be sure your complaint contains sufficient factual allegations to support your claim. Mere conclusory allegations may result in dismissal before you can reach the merits of your case.

One last point. The Court correctly cited several published opinions in support of the proposition that “[a] plaintiff alleging negligent retention ‘has the burden of showing that the employee or independent contractor was not qualified to perform the work for which he was hired,’ and that ‘the employer had knowledge of the employee’s unfitness for the job.’” But is that really the law? Can an employer willfully turn a blind eye toward unfitness? Is there no obligation on an employer to monitor the employee or independent contractor’s work to determine fitness? Does an employer have no obligation to investigate complaints of unfitness?

I think the law is, or will be, that a plaintiff alleging negligent retention must, in addition to proving the employee or independent contractor’s lack of qualification for the work, also prove the employer knew or reasonably should have known of the employee’s unfitness for the job. That burden is more consistent with the law of negligence generally.

NOTE: This opinion was released 3.5 months after this case was assigned on briefs.