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Negligent-hiring lawsuits.

Owners and managers of apartment buildings now face an increased liability threat from tenants and others using the claim of negligent hiring.

A negligent-hiring lawsuit typically involves allegations that property management personnel have been careless in the selection of employees. That at first might seem to be no business of a tenant or anyone other than a worker's employer. However, where an employee has physically attacked a tenant and has a history of violent conduct, courts have become more receptive to lawsuits pinning responsibility on apartment building owners and managers.


Courts have for many years recognized employer responsibility for employee conduct occurring when an employee is performing work duties. Injured parties have traditionally been able to hold the employer responsible because courts have viewed an employee's work duties as something over which the employer exercises control and direction.

If an apartment complex maintenance employee improperly repairs a unit's heating system and causes a fire, the employer can generally be held responsible. However, if the employee's conduct is violent and/or criminal, as in an assault or rape, the employer has usually not been held responsible because such conduct falls outside the employee's duties and the employer has no control or direction over it.

Where tenants and others have suffered criminal attacks at the hands of apartment building employees, they have sometimes succeeded in imposing liability on the employer by the use of negligent hiring. What makes negligent hiring different is that the employer can be held responsible for worker conduct not involving the performance of work duties and over which the employer has little or no control.

Since state legislatures have not enacted laws governing this aspect of employment, it has been left to each state's court system to define the appropriate standard. Negligent hiring has been accepted by some state court systems for several decades while other states are only now accepting its validity.

It should be of special concern to property management personnel because courts have been most willing to recognize negligent-hiring claims where persons are particularly vulnerable to improper employee conduct. Tenants have been included, along with hospital patients and schoolchildren, as being especially vulnerable to improper employee conduct and so deserving of negligent hiring's protection.

Negligent hiring focuses on an employer's conduct in the selection of employees. Many courts have also recognized employer responsibility for careless supervision and for simply retaining an employee whom the employer knows or should know presents a danger to others. Although negligent-supervision cases and negligent-retention cases are fewer than negligent-hiring ones, they too present a liability threat to apartment building owners and managers. The same principles that govern negligent-hiring suits govern supervision and retention cases.

Requirements for lawsuits

As with other lawsuits based on a claim of negligence, four requirements must be met for a plaintiff to succeed in imposing liability on a defendant. These are: a duty of care, a failure to meet that duty, foreseeability, and harm.

Most courts have recognized the duty of care in negligent-hiring cases as being one of reasonable care. That is, an apartment building owner or manager is expected to act as a rational, careful owner or manager would. While not guaranteeing tenant safety from violent employee conduct in all situations, the owner or manager can be expected to refrain from hiring those he or she knows or should know present a danger to others.

This means an apartment building owner or manager cannot successfully defend against a negligent-hiring lawsuit by simply arguing that he or she was not aware of an employee's past violent behavior. "I did not know" will only be an acceptable defense if combined with a court determination that the employer could not have been expected to know.

While it may seem vague phrasing that courts describe a building owner's duty as one of reasonable care, it allows the courts to adjust the degree of care expected to the particular circumstances. For example, much more care would be expected of a building manager hiring a security guard with master key access to apartments than for hiring a groundskeeper.

A failure to fulfill the duty of care owed is the second element in a successful negligent-hiring lawsuit. It can be shown by proving that the apartment building owner or manager knew or should have known that the employee presented a danger to others.

Hiring an apartment building security guard with a series of previous theft and violent crime convictions because of failing to contact references or to question significant time gaps in an employment record would constitute just such a failure to fulfill the duty of care. Should that security guard later steal from tenants or physically attack them, the apartment building manager would likely be held responsible for having negligently hired the guard.

Foreseeability, the third requirement of a negligent-hiring suit, requires that the plaintiff prove that the harm he or she has suffered was likely, was to be expected. Usually, evidence of an employee's previous bad conduct is presented in court to demonstrate that the particular conduct involved should have been expected. A tenant, if raped by an apartment complex employee, would probably present evidence of the worker's violent crime record to show the likelihood of the attack.

Finally, a plaintiff must prove harm. Harm can consist of physical injury from a violent attack, attendant medical expenses, and pain and suffering. It could also involve property loss.

Example case

Apartment tenants are peculiarly vulnerable to improper conduct by security personnel. Because of this, courts are likely to expect a higher degree of care in the selection of these employees than almost any other likely to be hired by apartment building owners. This is especially true where security employees are armed or have master key access to apartment units.

When employees are hired for positions having little or no contact with tenants, it will usually be enough to fulfill the duty of care owed to obtain past employment information and personal data. This can be done through interviewing and requiring the completion of an employment application.

A case illustrating how the duty of care in selection ca be readily fulfilled is Jenkins v. Milliken. In this case, a property attendant, hired to tag inoperable cars, lock up swimming pools at night, and respond to noise complaints by merely asking the offending party to keep quiet, was involved in an altercation which led to his employer being sued for negligent hiring.

When the property attendant asked a wedding party to reduce the noise level at its apartment clubhouse celebration, a dispute ensued in which the property attendant struck a wedding guest.

The apartment complex owner successfully refuted the negligent-hiring claim by showing that it had secured past employment information and personal data on the employee and that there was nothing in that information, or in anything revealed in his employment interview, to indicate that the attendant posed a threat to others.

Preventive measures

Apartment building managers and owners can minimize their exposure to negligent-hiring liability by requiring that applicants for positions as security personnel be thoroughly investigated for past behavior problems which may threaten the safety of others. This can be done through employment interviews and by contacting references and the state department of corrections.

In addition, managers should follow up reports of employee behavior which may indicate possible future negligent-hiring claims. Inquiries could also be made concerning the cost and availability of insurance coverage in the event negligent-hiring claims are made.

Although it might be tempting to refuse to hire those with criminal records as a way of minimizing negligent-hiring liability threats, such action may result in charges of illegal discrimination. A number of states have laws making it illegal to discriminate on the basis of a criminal record unless that record involves offenses that concern the nature of the work to be performed. For example, one could quite properly refuse to hire as a property attendant a person with a history of theft convictions. However, refusing to hire as a property attendant a person with a record of past drug use might not be legal.


Negligent-hiring cases are likely to become more common. They enlarge an apartment building manager's liability threat by holding him or her responsible for conduct outside the employee's work duties and over which the employer may have little or no control.

Preventive measures consist of following sound hiring and supervision practices and recognizing that the quality of employees hired is the most significant factor in reducing the possibility of these lawsuits.

Robert J. Walter is a professor in the Department of Marketing and General Business of the College of Business at St. Cloud University, St. Cloud, Minnesota. He has over 10 years of teaching experience in business law and real estate law. He received his undergraduate and law degrees from the University of Kentucky.
COPYRIGHT 1991 National Association of Realtors
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991 Gale, Cengage Learning. All rights reserved.

Article Details
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Author:Walter, Robert J.
Publication:Journal of Property Management
Date:Jan 1, 1991
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