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The Strategic Use of Claims for Negligent Hiring, Training, or Retention To Admit Irrelevant Character Evidence, and How Defendants Can Shield Against Such Claims or Use Such Claims as a Sword

August 5, 2020

Under the Maryland Rules of Evidence, character evidence is generally not admissible to prove that the person acted in accordance with that character trait.  For instance, in a motor vehicle case, a Plaintiff may not present evidence that the Defendant is a terrible driver in order to convince the jury that the Defendant negligently caused the accident.  However, Plaintiffs may circumvent this rule by bringing a claim for negligent hiring, training, or supervision1 against the alleged tortfeasor’s employer.  In order to establish a claim for negligent hiring, Plaintiffs must present evidence that the employer knew or should have known that the employee was incompetent.  Thus, by bringing a negligent hiring claim, the Plaintiff may admit evidence of the alleged tortfeasor’s character in order to prove that the employer negligently hired the employee.  However, there are various methods available to Defendants to fight back and, in certain circumstances, use a Plaintiff’s claim for negligent hiring to their advantage.  

Negligent hiring is a cause of action that is intended to impose liability upon an employer for the independently negligent act of hiring or retaining an incompetent or dangerous employee who harms another person.  Negligent hiring differs from vicarious liability in that it imposes liability even in situations where the commission of the tort is outside the scope of the employee’s employment.  The classic negligent hiring case involves an incompetent or dangerous employee whose position enables him or her to commit a tort, which falls outside the scope of the employee’s employment.  For instance, the case of Cramer v. Housing Opportunities Commission, involved a negligent hiring claim against the housing commission for a rape committed by a housing inspector against a homeowner.  While the rape was not committed in the scope of the inspector’s employment, public policy justified holding the employer liable for negligently exposing customers to the dangerous employee. 
However, with the increasing prevalence of the “reptile theory”, Plaintiffs’ arguments at trial frequently emphasize portraying Defendants as dangerous to the public at large, by highlighting unsafe practices, history of unsafe practices, or broad failures to obey “safety rules” or policies that place the public at large at risk of danger.  In order to do so, Plaintiffs’ constantly look for ways to circumvent rules precluding character evidence.  Bringing a claim for negligent hiring may be used as a mechanism for Plaintiffs to introduce character evidence of employees to the jury under the guise that the employees’ character or lack of competence is relevant to the claim of negligent hiring. 

For instance, in a car accident case, a Plaintiff may seek to admit evidence that the Defendant employee had prior speeding tickets, prior accidents, or even prior minor criminal convictions in order to establish that the employee is an unsafe driver, incompetent employee, and that the employer was negligent for hiring the employee.  While the Plaintiff may also have numerous speeding tickets, car accidents, and similar criminal convictions, such evidence is excluded as inadmissible character evidence.  Thus, the jury is put in the position of deciding which party negligently caused an accident: the Plaintiff who, for all they know, has a clean driving record, or an employee with a terrible driving or criminal record and an employer who failed to discover their employee’s driving history.  However, there are ways to combat these efforts and, in some cases, turn the tides against Plaintiffs. 

When an employee’s character or history is harmful to the defense, the defense can seek to avoid submission of the employee’s character or history by simply stipulating to respondeat superior.  In a case from the 1950s, the Maryland Court of Appeals found that in cases where the Defense has stipulated agency, the prior misconduct of an employee is irrelevant and “can serve no purpose except to inflame the jury.”  See Houlihan v. McCall, 197 Md. 130, 140, 78 A.2d 661, 666 (1951).  The reason why such evidence is irrelevant is once agency is admitted, it is unnecessary to present evidence that the hiring was negligent.  In order to establish a claim for negligent hiring, the reason why the hiring was negligent must be the cause of the occurrence.  See Asphalt & Concrete Servs. v. Perry, 221 Md. App. 235, 263, 108 A.3d 558, 575 (2013)(stating “to be liable for negligent hiring, the employee’s particular unfitness must be the cause of the harm”).  For instance, in order for an employer to be liable in a motor vehicle claim for negligent hiring, it must be established that the employee’s incompetence caused the accident; i.e the employee negligently operated the vehicle causing the accident.  However, if the employer stipulates to respondeat superior, the employer would be liable for the acts of the employee negligently operating the vehicle, and it would be entirely unnecessary to establish that the employer negligently hired the employee.  Thus, an employer may avoid admission of evidence of its employees’ incompetence or character by stipulating to respondeat superior. 

However, frequently the employees involved in claims are entirely competent, excellent employees.  When this is the case, and Plaintiff’s Counsel is not savvy enough to voluntarily dismiss the claim for negligent hiring, Defendants should seek to use every opportunity to highlight the competency and character of the employee.  While Defendants cannot argue explicitly that the accident was not caused by the employee because the employee is well-qualified and competent, Defendants can present such evidence to refute a claim for negligent hiring, and let the jury make that inference on their own. 

Thus, claims for negligent hiring may be used as a tool to justify the admission of irrelevant, inadmissible character evidence.  However, in circumstances where vicarious liability is not in dispute, Defendants may stipulate to vicarious liability in order to avoid admission of harmful character evidence of Defendants’ employees.  But, in circumstances where Defendant’s employees are well-qualified and competent, Defendants may exploit a Plaintiffs’ claim for negligent hiring as a basis to submit evidence of the employee’s qualifications and character.

1 These claims will be collectively referred to as a claim for “negligent hiring”.