What is Negligent Hiring?


Many of our clients are hurt by another employee and may ask if they can sue the employer and the employee responsible for the harm. At Surasky Law, we use our deep experience in Aiken, SC personal injury law for our clients’ benefit.


Below, we review the key legal concepts regarding suing an employer, such as vicarious liability and negligent hiring. We will gladly discuss how those legal rules impact your case in a free consultation.


What is Vicarious Liability?

In most situations, you can sue the employer for injuries caused by an employee in the scope of his employment. This is a type of “derivative” or “vicarious” liability. In other words, the employee is liable because he or she was negligent—and, because of the employment relationship, the employer is on the hook as well.


Vicarious liability can be seen in transportation accidents or food service incidents. A negligent cook might serve poorly prepared foods which make a diner sick, for instance. Because the cook was working at the time, the restaurant is liable.


When Do You Need to Prove Negligent Hiring?

If employers are vicariously liable when their employees hurt someone, why would you ever need to prove negligent hiring? Isn’t it enough to always argue vicarious liability?


There are some situations where proving the employer’s direct liability is helpful. For example, you might have been injured by an independent contractor. Normally, South Carolina courts don’t apply vicarious liability to employers when an independent contractor causes injury.


However, if the company was negligent in their hiring, then you can sue them. They are responsible for using sufficient care when they hire all people, including independent contractors. There may be other situations where it’s beneficial to provide direct liability, but the independent contractor situation is a big one.


How Do You Prove Negligent Hiring?

The South Carolina Supreme Court announced the legal rule in a case called James v. Kelly Trucking Company (2008). The Court held that an employer is independently liable when it knew (or should have known) that they were creating an undue risk of harm to the public by hiring a specific person.

As you can see, this test doesn’t apply generally to all employees. It’s not enough to show that an employer was generally negligent in its hiring practices. Instead, we need to show that they knew or should have known that hiring a specific individual was dangerous.


The Supreme Court went on to identify some specific facts which would probably create knowledge a person was a risky hire:

  • Past misbehavior on the employee’s part

  • The employee’s driving record

  • An arrest record

Negligent Hiring Requires Negligence

Some businesses do everything right. They pull background checks and call references. Everything seems okay. Then their new employee hurts someone. Has the employer been negligent?


No. Negligence is defined as the failure to use reasonable care in the circumstances. It doesn’t require that you be perfect. Nor does the law require a deep, invasive background check. For example, it’s probably sufficient to call references and pull a criminal history report on a job applicant. An employer probably doesn’t need to hire a private investigator to interview a job applicant’s neighbors.


South Carolina has only recently recognized a negligent hiring claim—less than 15 years ago. Not enough time has developed to see what kinds of hiring practices courts will require.


Can You Prove Negligent Hiring?

It’s hard for a victim to find out what steps employers took during a job search. This is where a personal injury lawyer is a benefit. Our law firm can tell an employer to hold onto records related to hiring, such as proof of performing background checks. We can also interview Human Resource employees to find out what steps they took when hiring someone.


Negligent hiring claims are difficult to bring. Nevertheless, this type of claim might be necessary to hold a company responsible for your injuries.


Call Surasky Law Today

As part of our services, we regularly analyze whether an employer has some liability for an accident which injures our clients. To learn more about your options, contact us to schedule a free consultation.


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