Reevaluating the Burden of Production in Negligent Hiring and Negligent Retention Claims after Hartfiel v. Allison
In Hartfiel v. Allison, A15-1149 (Minn. App. Jan. 25, 2016), the Minnesota Court of Appeals reversed the lower court’s grant of summary judgment on a negligent retention claim while affirming the lower court’s grant of summary judgment on a negligent hiring claim.
In this case, an employee of the defendant attacked an independent contractor with a three-and-a-half foot steel bar. The independent contractor sued the employer for negligent hiring and negligent retention, among other things.
The Minnesota Court of Appeals explained that there is a difference between these two claims, primarily in regard to when in the timeline of events the relevant facts are found:
“Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee’s unfitness, and the issue of liability primarily focuses upon the adequacy of the employer’s pre-employment investigation into the employee’s background. Negligent retention, on the other hand, occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.”
Hartfield, at 10, citing Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).
Negligent hiring, then, focuses on the time period before the employee is actually hired and only the employer’s actions before hiring can render an employer liable. In Hartfiel, the independent contractor failed to establish any failure of the employer’s “pre-employment investigation into the employee’s background.” The Court reiterated holdings from other negligent hiring cases that “[a]n employer does not have a duty, as a matter of law, to inquire about a prospective employee’s criminal record.” Hartfiel, at 9. Only if the “totality of circumstances” intimates that the employer should have been on notice of an employee’s problematic propensities does the law impose a duty on the employer to do a further investigation into the employee before hiring. Id. In Hartfiel, because nothing in the employer’s normal hiring process could have made them aware of the employee’s violent tendencies, the employer could not have been found negligent in its hiring of the employee. Therefore, the Court affirmed summary judgment on that count.
However, negligent retention focuses on the time period after the employee has been hired and the employer’s actions during the employee’s employment can give rise to liability. In Hartfiel, the independent contractor established that the employer knew of the employee’s violent tendencies through “gossip.” The owner of the employer-company had heard through office gossip that the employee had smacked a subcontractor while the subcontractor and other employer-employees were out for drinks after work. Additionally, the shop foreman of employer kept a gun on him because the employee threatened him. These two facts alone were enough, in the Court of Appeals opinion, for a jury to draw the inference that the employer knew, or should have known, that the employee had violent tendencies.
The facts in Hartfiel suggest that the threshold of production to defeat summary judgment in a negligent retention case is lower than previously thought. In Hartfiel, while the plaintiff testified that the shop foreman was fearful of the employee and had been threatened by the employee, the shop foreman actually denied ever being threatened by or being afraid of the employee. Additionally, the plaintiff admitted, and the owner of employer-company confirmed, that the assault in the bar was never formally reported. However, the owner of employer-company testified that he had heard about the incident in the “form of gossip” and took no action to investigate. This evidence alone was enough to defeat summary judgment.
It appears, then, that an employer needs minimal information to be “on notice” of an employee’s undesirable tendencies and before the law imposes a duty on the employer to take action to limit the threat such an employee poses.