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Legal Memorandum: Negligent Hiring and Retention Claims

Issue: Under the law of Vermont, do courts recognize a cause of action for negligent hiring and retention of an employee?

Area of Law: Employee Law, Personal Injury & Negligence
Keywords: Negligent hiring; Negligent retention; Liability for harm
Jurisdiction: Vermont
Cited Cases: None
Cited Statutes: Restatement (Second) of Agency § 213; Restatement (Third) of Agency § 7.05(1)
Date: 12/01/2009

The Restatement (Second) of Agency § 213, and its successor Restatement (Third) of Agency § 7.05(1), recognize negligence causes of action for negligent hiring and negligent retention of an employee.  Section 213 provides:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:

(a) in giving improper or ambiguous orders or in failing to make proper regulations; or

(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others….

See Restatement (Second) of Agency § 213(b); Restatement (Third) of Agency § 7.05(1).  The torts of negligent hiring and negligent retention are very similar; the difference between them is merely the time at which an employer’s negligence occurs.  Peck v. Siu, 827 P.2d 1108, 1110 (Wash. Ct. App. 1992).  With negligent hiring, it occurs at the time of the hiring; with negligent retention, it occurs during the course of employment.  Id.

Although no Vermont case was located expressly recognizing these causes of action, nothing was found suggesting Vermont rejects these parts of the Restatement either.  Indeed, in Brueckner v. Norwich Univ., 169 Vt. 118, 730 A.2d  1086 (1999), the court indicated that it accepted more than just the negligent supervision part of § 213; the court cited with approval that part of the Restatement comments suggesting a duty to make reasonable regulations.  Quoting the Restatement § 213, comment g, the court stated:  “One who engages in an enterprise […]

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