Negligent Hiring and Negligent Entrustment: The Case against Exclusion
![handle is hein.journals/orglr52 and id is 302 raw text is: OREGON LAW REVIEW
Negligent Hiring and
Negligent Entrustment:
The Case Against Exclusion
In actions against employers resulting from the negligent acts of their
employees, there are three possible theories of liability: respondeat
superior ;1 negligent entrustment (the negligence of the employer in
entrusting a dangerous instrumentality to an incompetent person) ;2
and negligent hiring (the negligence of the employer in hiring or retain-
ing an employee known to be incompetent).3 The latter two frequently
are overlooked. This comment focuses on the advantages in automobile
litigation of pleading the negligent entrustment or negligent hiring
theories as opposed to, or in conjunction with, the respondeat superior
theory. The objections which can be raised to the joinder of either the
negligent entrustment theory or the negligent hiring theory with the
respondeat superior theory and the possible responses and policy con-
siderations favoring joinder also will be discussed. Although negligent
entrustment and negligent hiring are distinct theories, for most practical
purposes they are identical; thus they will receive common treatment
with regard to the issues discussed in this comment.4
I
THEORIES OF RECOVERY AGAINST EMPLOYERS
A. Respondeat Superior
Under the doctrine of respondeat superior, an employer is liable
vicariously for the tortious conduct of his employee committed within
the scope of the employment. To establish a prima facie case the plain-
tiff must allege and prove that an employer-employee relationship
existed,5 that the employee acted within the scope of his employment at
1 RESTATEMENT (SECOND) OF AGENCY § 219 (1958).
2 RESTATEMENT (SECOND) OF TORTS §§ 308, 390 (1965).
3 RESTATEMENT (SECOND) OF AGENCY § 213 (1958) ; RESTATEMENT (SECOND)
OF TORTS § 307 (1965) ; 53 AM. JUR. 2D Master and Servant § 422 (1970) ; 57
C.J.S. Master and Servant § 559 (1948).
4 Courts often fail to distinguish the two theories and occasionally label negli-
gent hiring as negligent entrustment. See, e.g., Tuite v. Union Pac. Stages, Inc.,
204 Or. 565, 284 P.2d 333 (1955); Elliott v. A.J. Smith Contracting Co., 358
Mich. 398, 100 N.W.2d 257 (1960).
5 In Oregon automobile accident litigation, the right of the master to control
the conduct of the driver is the test generally applied. Kowaleski v. Kowaleski,
235 Or. 454, 385 P.2d 611 (1963). In Kowaleski, the Oregon supreme court
approved the list of factors distinguishing an independent contractor from a
servant set forth in RESTATEMENT (SECOND) OF AGENCY § 220 (1958).
[Volume 52, 1973]](ViewImageLocal?handle=hein.journals/orglr52&div=26&collection=&method=preview&ext=.png&size=3)
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Negligent Hiring and Negligent Entrustment: The Case against Exclusion
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