Negligent Retention -
[1] Elements and Case Citations
(1)
The defendant employer becomes aware, or should have become aware, of problems with an employee that indicates his unfitness;
(2)
The defendant employer owes a duty to plaintiff to protect the plaintiff from a particular injury or damage;
(3)
The defendant employer breaches its duty by failing to take further action, such as investigation, discharge, or reassignment;
(4)
Defendant’s breach was the proximate cause of injury or damage to plaintiff; and
(5)
Plaintiff suffered damages in the caused by a physical impact as a result of the breach.
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Florida State Courts
Supreme Court: Mallory v. O'Neil, 69 So.2d 313, 315 (Fla.1954)
First District: Tallahassee Furniture Co. v. Harrison, 583 So.2d 744, 753
(Fla. 1st DCA 1991)
Second District: Garcia v. Duffy, 492 So.2d 435, 438-39 (Fla. 2d DCA 1986)
Third District: Bennett v. Godfather's Pizza, Inc., 570 So.2d 1351, 1353
(Fla. 3rd DCA 1990)
Florida Federal Courts
Middle District: Smith v. Am. Online, Inc., 499 F. Supp. 2d 1251, 1267 (M.D. Fla. 2007)
[2] Defenses to Claim
for Negligent Retention
(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other
standard defenses. See § 60.
(2) Statute of Limitations: § 95.11(3)(a), Fla. Stat. (four years).
(3) Defendant lacked constructive or actual knowledge that the defendant
employee was unfit. M.V. v. Gulf Ridge Council Boy Scouts of Am., Inc., 529 So.2d 1248 (Fla. 2d DCA 1988)
(4) Plaintiff’s contributory negligence serves to diminish the recovery of
damages through principles of comparative negligence, by apportioning defendant’s degree of negligence against that of the plaintiff. Hoffman
v. Jones, 280 So. 2d 431, 436 (Fla. 1973); see also § 768.81, Fla. Stat.
(5) Plaintiff’s injuries resulted from an intervening, superseding cause.
See Townsend v. West Side Dodge Inc., 642 So. 2d 49, 50 (Fla. 1st DCA 1994), rev. denied, 651 So. 2d 1197 (Fla. 1995); see also, Restatement
(Second) of Torts §§ 440, 441 (1965).
(6) Assumption of the risk will diminish the plaintiff’s recovery through
comparative negligence. Blackburn v. Dorta, 348 So. 2d 287, 298 (Fla. 1977); see also, Restatement
(Second) of Torts § 496 (1965).
(7) Patent danger, also known as the ``open and obvious hazard doctrine’’
is an absolute bar to liability when plaintiff’s negligence claim is premised on failure to warn, and otherwise serves as a defense to reduce the
defendant’s liability through principles of comparative negligence when plaintiff failed to exercise reasonable care under the circumstances. E.g.,
Hunnings v. Texaco, Inc., 29 F.3d 1480, 1486-1487 (11th Cir. 1994).
(8) Consent is a defense to negligence claims. Restatement
(Second) of Torts § 892 (1965).
