Illinois Supreme Court Upholds Complaint for Negligent Hiring, Retention and Supervision

On May 23, 2019, the Illinois Supreme Court upheld a plaintiff's complaint against an employer for negligent hiring, retention, and supervision of an employee.  Jane Doe, et al. v. Chad Coe, et al., 2019 IL 123521 (May 23, 2019).  This case involved an alleged sexual assault by a youth pastor who was employed by the employer.  The plaintiff alleged that the employer negligently and willfully and wantonly hired, supervised, and retained the employee.  The plaintiff filed a complaint alleging five counts: (1) negligent supervision; (2) negligent retention; (3) willful and wanton failure to protect; (4) willful and wanton retention and failure to supervise; and (5) negligent hiring.  Under Illinois negligence law, an employer may be liable for an employee's torts in one of two ways, depending on whether the employee was acting within the scope of his employment.  If the employee was within the scope of his employment, the employer can be found liable for his actions under a theory of vicarious liability, or respondeat superior.  If an employee acts outside of the scope of his employment, however, the plaintiff can bring a direct cause of action against the employer for the employer's misconduct.  Negligent hiring, negligent supervision, and negligent retention are all direct causes of action against the employer for the employer's misconduct in failing to reasonably hire, supervise, or retain the employee.

To recover damages based on negligence, a plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff's injury.  Every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and the duty does not depend upon contract, privity of interest, or proximity of relationship.  In deciding whether a duty exists, a court will consider the foreseeability of the plaintiff's injury, the likelihood of the occurrence, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. 

Employers have a duty to act reasonably in hiring, retaining, and supervising their employees.  The existence of an employment relationship imposes a duty upon the employer to exercise reasonable care in employing only competent individuals.  These duties are owed to all foreseeable individuals who might be impacted by the employee or his employment.  To state a claim for negligent hiring under Illinois law, a plaintiff must plead and prove: (1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee's hiring or retention; and (3) that the particular unfitness proximately caused the plaintiff's injury.  To prove a negligent hiring claim, a plaintiff must show not just that an employee was unfit, but that the employee was unfit in a particular manner, which particular unfitness must have rendered the plaintiff's injury foreseeable to a person of ordinary prudence in the employer's position.  The plaintiff alleged that an employment background check, through a Google search, would have put the employer on notice, before it hired the employee, of the employee's alleged particular unfitness alleged to have proximately caused the plaintiff's injuries.  Thus, the plaintiff's complaint adequately alleged a claim for negligent hiring.

Additionally, the plaintiff alleged that after hiring the employee, the employer negligently supervised him.  Under Illinois law, a separate and distinct claim against an employer for negligent supervision exists.  A plaintiff can assert a negligent supervision claim based on a general duty arising from the employment relationship.  An employer has a general duty to reasonably supervise all of its employees.  An employer's prior notice of an employee's particular unfitness is not required for a negligent supervision claim.  The employer's reasonable performance of its duty to supervise will put the employer on notice of an employee's conduct or perhaps prevent the employee's tortious conduct.  To impose a duty to supervise, only general foreseeability is required in the employment context.  An employer's duty to reasonably supervise its employees, predicated on the employment relationship, and general foreseeability, are sufficient for a negligent supervision claim.  The plaintiff's allegations that the employer breached its duty to supervise the employee by failing to monitor his conduct, and that the breach proximately cause the plaintiff's injuries, were sufficient to state a claim for negligent supervision.

The plaintiff also alleged that the employer negligently retained the employee.  The elements for a claim of negligent retention are the same as for negligent hiring.  The plaintiff must plead and prove: (1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee's retention; and (3) that this particular unfitness proximately caused the plaintiff's injury.  The plaintiff sufficiently alleged that the employer knew or should have known of the employee's alleged particular unfitness in light of the accounts from various people who witnessed the employee's alleged workplace behavior.  Thus, the plaintiff stated a claim for negligent retention.