Abc Apratment Company

Running Head : Employer Liability for remiss HiringEmployer Liability for Employee Torts infra the Theory of listless HiringABSTRACTThere be two possible good theories upon which an injured one-third party may seek to detect remediation in a civil court of honor from the employer of the employee who commits tortious acts upon the third party : the hypothesis of vicarious liability , specifically the doctrine of respondeat superior , which is a form of vicarious liability , or the theory of absent hiring . Assuming the aver in which the injured third party resides recognizes , as a majority of submits do , both of the above-mentioned legal theories as valid motilitys of action , a claim asserting a legal theory of vicarious liability stand transgress and a claim asserting the legal theory of neglectful hiring will succeed . Further the liability imposed upon the employer will allow for the injured third party to recruit both compensatory and punitive alter from the employer as a result of the thoughtless action of the employeeEmployer Liability for Employee Torts Under the Theory of Negligent HiringINTRODUCTIONThe theatre director of an apartment complex used the key to one of the apartments to reckon the tenant s apartment during his off trade era and set on the occupant . rudiment flat Company owns the property and engage the bus . An investigation after the fact turned up evidence the four-in-hand had a criminal eternise which alphabet failed to discover during the interview process . The tenant is suing ABC flat Company for compensatory and punitive amends . The following will contend the possible legal theories upon which the tenant may seek retrieval in a civil court of law of personality and how liable(predicate) the tenant may be to receive an award of compensatory and peradventure punitive damagesVICARIOUS LIABILITY AND RESPONDEAT SUPERIORThe idea of vicarious liability has existed for centuries , predating redden English common law in the 16th hundred . Vicarious liability was common in primitive law wherein owners were held responsible for the nonperformance of servants , slaves , inanimate objects and wives (Blumenreich , 1993 . To phrase it plainly , a person is responsible for the actions of those people with whom that person may create a overshadow and servant relationship . The Restatement (Second ) of billet (Restatement (Second ) of procedure 215-267 (1958 ) outlines the doctrine of respondeat superior as it pertains to a principal and his or her gene , such as an employer and an employee . Under respondeat superior , a principal may be vicariously li fit for torts pull by an agent of the principle . The liability may sc encroachment up when the agent s act is pull within the scope of piece of work and in furtherance of the principal s business , or when the agent s act is ratified by the principal (cited in Lindemann and Kadue , 1992When applying the Restatement (Second ) of Agency to the facts of the of the third party tenant s rape at the men of the apartment manager employ by ABC Apartments , it becomes eject why the doctrine of respondeat superior is doomed to fail in a civil court of law . The apartment manager throw ined the premises and raped the dupe in off hours . A sane person may conclude that entering the chartered premises of a tenant and committing criminal acts against that tenant is non within the scope of exercise for the manager and decidedly not in furtherance of the business of ABC Apartments . A reasonable person could also conclude ABC Apartments did not score the manager consent or instruction to unlawfully enter and physically storm the tenants of the apartments . The act of raping the tenant was motivated all in all by the apartment manager s own personal hope . Unless the apartment manager had been specifically instructed by ABC Apartments to rape the tenant no purpose to serve ABC Apartment s interest existed . Finally , the manager was hired to oversee the effect of the apartment complex for ABC , not to physically assault and rape the tenantsNEGLIGENT HIRINGThe theory of negligent hiring addresses employers who do not understand reasonable care in hiring their potential employees for a moving in HYPERLINK http /smallbusiness .findlaw .com FindLaw , 2004 . In his legal treatise entitled Employment cover , Rex K . Larson points out most states recognize a cause of action for negligent hiring , although no real uniform elements deal been adopted as of yet by the multiple state and federal courts (cited in Creed .T , 2007 ) However , a analogy in exactly how to define negligent hiring does exist . In the case of Garcia v . Duffy , 492 So . 2nd 435 (1986 , the Florida Supreme speak to defined negligent hiring in the following mannerNegligent hiring occurs when , prior to the time the employee is actually hired , the employer knew or should wee-wee known of the employee s effeminateness , and the issue of liability focuses upon the adequacy of the employer s pre-employment investigation into the employee s punctuate (cited in Sinclair-Bernadino , 2006In Pennsylvania , Coath v . Jones , 277 Pa . Super . 479 , 419 A . 2d 1249 (1980 , follows the Restatement (Second ) of Torts statingNegligent hiring cases focus on what duty is owed by the employer to a third party when an employee commits a crime or other pestilential act .the consensus is that an employer may be found negligent if he knew or should remove known that an employee had a propensity for demeanour that would harm a third person (cited in LaPasta , 2006The atomic number 25 Supreme Court in Ponticas v . K .M .S . Invs , 331 N .W . 2d 907 , 911 (Minn . 1983 ) offered an opinion which can be characterized as a majority test for the doctrine of negligent hiringLiability is predicated on the negligence of an employer in placing a person with known propensities , or propensities which should have been discovered by reasonable investigation , in an employment position in which , because of the circumstances of the employment , it should have been foreseeable that the hired individual posed a threat of defacement to others (cited in Creed , 2007The commonality of all the above-quoted opinions revolves around place employers responsible for hiring employees who harm third parties when an adequate oscilloscope total would have prevented such a person from being hired for the job in the first placeIn the law review expression , Note , Minnesota Developments : Employer Liability for the Criminal shapes of Employees Under Negligent Hiring Theory : Ponticas v . K .M .S . Investments , 68 Minn L . rev up . 1303 , 1304-05 (1984 , Cindy M . Haerle draws upon the Ponticas opinion of the Minnesota Supreme Court to get a line six basic elements of negligent hiring(1 ) the tort-feasor was the employer of the defendant (2 ) the employee was fallacious for employment (3 ) the employer knew or should have known the employee was unfit (4 ) the complainant (claimant ) was injured by the employee s tortious act (5 ) the employer owed a duty of care to the plaintiff and (6 ) the hiring of the employee was the proximate cause of the plaintiff s injuries (cited in Creed , 2007Assuming the courts of the state in which the tenant who became the rape victim of the manager utilize elements such as the above in determining an employer s liability under a negligent hiring theory , it becomes clear ABC will be held liable for the acts of the manager . The manager was the employee of ABC at the time he committed the rape . The manager had a previous criminal record that ABC failed to discover during the hiring process . Because a criminal background check would have revealed the manager s past to ABC , they would or should have known the manager was unfit to perform a job in which access to all the tenants apartments was readily visible(prenominal) . The tenant was intelligibly injured , both physically and mentally , by the tortious act of the manager . ABC clearly owes a duty to their tenants to insure their employees are fit for the jobs they are hired to do . Failure to investigate the manager s background is a clear breach of that duty .

Finally , had ABC not hired the manager , access to the keys of the tenants apartments would not have been available to him and , of course , he would not have been able to enter the tenant s apartment and commit the crime of rapeDAMAGESNow that is has been conventional the tenant will succeed under the theory of negligent hiring , the issue of damages must be addressed disconsolate s Law Dictionary defines compensatory damages as such as will compensate the injured party for the injury prolong (Nolan ,. 390 1990 . unrelenting s Law Dictionary defined punitive damages as damages awarded on an increased scale .that of punishing the defendant or of setting an example for similar wrongdoers (id . In the Florida case of Tallahassee Furniture v . Harrison , a lodge was successfully sued under the theory of negligent hiring and the plaintiff was awarded 1 .9 million in compensatory damages and 600 ,000 .00 in punitive damages (Arvey , et al ,.1 , 2001 ) A Massachusetts jury ed the trusted Health Resources and Visiting Nurses Association of Boston to pay 26 .5 million in combined compensatory and punitive damages to the family of a murdered quadriplegic after the family successfully sued under the theory of negligent hiring (Anderson , 1998 . A clear indication issues from these decisions indicating courts are willing to allow for the award of punitive damages on top of compensatory damages Based upon this information , under the theory of negligent hiring it seems likely that the tenant will be successful in a civil lawsuit and will be able to recover both compensatory and punitive damages of a significant natureThe nature of employment law is ever changing and the theory of negligent hiring seems to be an ever expanding area of the law . The idea of a third party recovering for the torts of an employee seems almost to be a return toward the primitive law mentioned in Mr . Blumenreich s article wherein the master was responsible for all actions of his chattel , or persons in their guidance (Blumenreich ,1993ReferencesAnderson , T (1998 . Health Resources and Visiting Nurses Association of Boston probable for Negligent Hiring . Chicago , IL : High Beam look Retrieved on celestial latitude 24 , 2007 from the World massive web :http /network .highbeam .com /doc /1G1- .htmlArvey , R .D , Bernardy , C .J , Connerly , M .L (2001 . Criminal Background Checks for Prospective and Current Employees : Current Practices Among municipal Agencies . Irvine , CA : Public Personnel Management . Retrieved on declination 24 , 2007 from the World dewy-eyed mesh : HYPERLINK http / vane .entrepreneur .com /tradejournals /article .html http /www .entrepreneur .com /tradejournals /article .htmlBlumenreich , G .A (1993 , kinsfolk . Captain of the Ship . Washington DC : U .S . political science Printing Office . Retrieved December 23 , 2007 from the World all-embracing Web http /www /aana .com /Resources .aspx ?ucNavMenu_TSMenuTargetID 54 ucNavMenu _TSMenuTargetTypeCreed . T (2007 . Negligent Hiring and Criminal Rehabilitation Berkeley , CA : Berkeley Electronic Press . Retrieved December 23 , 2007 from the World Wide Web : HYPERLINK http / whole shebang .bepress .com /cgi /viewcontent .cgi ?article 1000 context tim_c reed http / flora .bepress .com /cgi /viewcontent .cgi ?article 1000 context tim_cr eedFindLaw (2004 . Employer Liability for an Employees Bad Act s Minnesota : FindLaw . Retrieved December 23 , 2007 from the World Wide Web HYPERLINK http /smallbusiness .findaw .com /business-operations /insurance /liability -employees-acts-html http /smallbusiness .findaw .com /business-operations /insurance /liability- employees-acts-htmlLaPasta , D .G (2006 . Reference Checks are Essential to Making Quality Hires .So why Not Do Them - and Do Them Right (Part 2 . united States TypePad . Retrieved December 23 , 2007 from the World Wide Web HYPERLINK hypertext transfer protocol /employability .typepad .com /employability /2006 /09 /reference_check html Http /employability .typepad .com /employability /2006 /09 /reference_check .h tmlLindemann , B , Kadue , D .D (1992 . Sexual bedevilment in Employment Law Washington , D .C : The say-so of National Affairs , Inc , Retrieved December 23 , 2007from the World Wide Web : HYPERLINK http /books .google .com /books ?id 6bNovV-EAF0C printsec-frontcover PPA36 8 ,M1 http /books .google .com /books ?id 6bNovV-EAF0C printsec-frontcover PPA368 ,M1Nolan , J (Ed (1990 . Black s Law Dictionary (6th Edition . St . Paul West produce CoSinclair-Bernadino , L (2006 . Negligent Hiring Doctrine Opens More Doors for Pre-Employment Screening . capital of Texas , TX : Thomas Investigative Publications , Inc . Retrieved December 23 , 2007 from the World Wide Web HYPERLINK http /www .pimall .com /nais /n .hire .html http /www .pimall .com /nais /n .hire .htmlNAME Negligent Hiring .doc Page PAGE 1 ...If you require to get a full essay, order it on our website: Orderessay

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