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Legal Memorandum: Negligent Hiring and Retention Claims

Issue: What standards are used to determine the issues presented in negligent hiring and retention actions?

Area of Law: Employee Law, Personal Injury & Negligence
Keywords: Negligent hiring or retention case; Breach of duty, cause in fact, scope of liability or scope of protection, and damages
Jurisdiction: Louisiana
Cited Cases: 743 So. 2d 680; 605 So. 2d 1032; 652 So. 2d 992; 290 So. 2d 899; 334 So. 2d 406; 658 So. 2d 691; 287 So. 2d 192; 659 So. 2d 496; 556 So. 2d 1; 256 So. 2d 620; 776 So. 2d 1226; 260 La. 542; 242 La. 471
Cited Statutes: None
Date: 01/01/2006

Negligent hiring and retention claims are generally governed by the same duty-risk analysis applied in all negligence cases in Louisiana.  Griffin v. K Mart Corp., 776 So. 2d 1226, 1231 (No. 00-1334, La. Ct. App. 5th Cir. 2000) (citing Jackson v. Ferrand, 658 So. 2d 691, 698 (No. 94-1254, La. Ct. App. 4th Cir. 1994), writ denied, 659 So. 2d 496 (No. 95-0264, La. 1995)).  In order to determine whether a defendant was negligent, the plaintiff must prove separate five separate elements:  duty, breach of duty, cause in fact, scope of liability or scope of protection, and damages.  Id. at 1231 (citing Fowler v. Roberts, 556 So. 2d 1, 4-5 (La. 1998)).  Although the first element—duty—is generally a question for the court, the other four elements are usually jury questions unless reasonable minds could not differ.  Id. (citing Fowler, 556 So. 2d at 4-5); see also Kenney v. Cox, 652 So. 2d 992, 992 (No. 95-0126, La. 1995) (Dennis, J., concurring) (noting that the existence of a duty is a legal question, and the legal cause or duty/risk question relating to the duty owed in a particular context is a mixed question of law and fact). 

In the Griffin case, the defendant employer, K Mart, had hired an employee to work in its sporting goods department, which position involved access to guns.  776 So. 2d at 1231.  Under those circumstances, the court explained, the store […]

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