I was injured in a sporting goods store. Two employees were throwing a football in the aisles. The employee who caught the ball, ran into me, knocking me over, causing a torn ligament in my knee. Can I sue the store for their employees conduct?
Over the last four posts, we have discussed one person being responsible for the acts of another person. In this particular case you may have a claim against the store, but the claim would be a direct claim against the store. In an earlier post, an employer was responsible for the acts of its employee under the doctrine of respondeat superior. So unless the sporting goods store hired these employees to put on a football tossing demonstration for its customers, respondeat superior does not apply. However, the store may be responsible for the acts of its employees under a theory of negligent retention and hiring.
Negligent hiring and retention are claims against an employer where the employee is not working in the scope of employment. The most common types of claims you may have heard about in the news are claims against municipalities for excessive force of police officers and claims against religious institutions for inappropriate behavior of clergy.
Negligent Hiring
In this case, I assume there are two young people engaging in some kind of horseplay on the job. I am also assuming that these two young people were entry level stock or sales clerks. A Court would dismiss the claim for negligent hiring. An employer is not required to run an extensive background check on an employee who is an entry level sales or stock clerk. (The case is completely different if the job being filled is one where the person carries a loaded gun on the job, or the person is put into sensitive situations with children.)
Negligent Retention
The negligent retention claim hinges on the conduct of the football catcher prior to the incident. Sandoval v Leaks & Watts Serv. 192 AD3d 91 (1st Dept. 2020). Did the employer have notice that Mr. football catcher was engaging in similar dangerous tomfoolery prior to your incident?
So your claim would need discovery from the employer. Did Mr. football catcher have prior incidents with customers? Did Mr. football catcher have a personnel file? Are there prior complaints about Mr. football catcher from other customers or fellow employees? So to sum up, you cannot sue the store for the acts its employee, but you can sue the store for retaining a reckless employee.
By James Santner, Esq.
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