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Where the facts are sufficient to show the existence of a legal duty, the reasonableness of
an employer's efforts to inquire into the prospective employee's background, and the
reasonableness of the subsequent decision to allow the employee to enter a customer's
home, are jury questions. Abbott, 457 So.2d at 1157; see also, Williams, supra (summary 36 judgment for employer reversed and case remanded for trial); cf. Garcia (no legal duty
under facts alleged; dismissal of complaint affirmed).
Of particular concern in negligent hiring and retention cases is the basis for holding
employers liable for employees' acts for which no liability would attach under the
doctrine of respondeat superior. As explained in Garcia, if employers are to be exposed to
liability for acts of their employees outside the scope of their employment, [*751] there
must be some rational basis for limiting the boundaries of that liability. That limitation is
explained [**13] by the Garcia court as follows:
Only when an employer has somehow been responsible for bringing a third
person into contact with an employee, whom the employer knows or should
have known is predisposed to committing a wrong under circumstances that
create an opportunity or enticement to commit such a wrong, should the law
impose liability on the employer.
492 So.2d at 439.
In a similar vein, the court in Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911
(Minn. 1983), further explained while referring to cases involving landlord's duty to use
reasonable care in hiring employees:
The rationale employed in those cases, as well as in similar cases involving
deliverymen or others who gain access to a dwelling by virtue of their
employment, is that since plaintiff comes in contact with the employee as the
direct result of the employment, and since the employer receives some benefit,
even if only a potential or indirect benefit, by the contact between the plaintiff and
the employee, there exists a duty on the employer to exercise reasonable care for
the protection of the dwelling occupant to retain in such employment only [**14]
those who, so far as can be reasonably ascertained, pose no threat to such
As the Williams court pointed out, the mo...
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- Spring '08