Under Minnesota law, employers can be held liable for injury or death caused by their employees if the employer was negligent in supervising the employee and the employee was acting within the scope of his or her employment when the injury occurred. Because of this liability, it is critical for Minnesota employers to carefully monitor the performance and fitness of its employees, especially those who could injure coworkers or members of the public. Further, employers should delineate the job duties of each employee and strictly regulate off-duty conduct and use of the employer’s equipment or vehicles during non-working hours to make it more clear when the employee is acting outside the scope of employment.
The Elements of Negligent Supervision
The most recent negligence claim to arise in the employment context is negligent supervision. A negligent supervision claim is “premised on an employer’s duty to control employees and prevent them from intentionally or negligently inflicting personal injury.” Johnson v. Peterson, 734 N.W.2d 275, 277 (Minn. Ct. App. 2007). Unlike the “direct liability” claims of negligent hiring and negligent retention, negligent supervision claims are based on a theory of respondeat superior or “vicarious liability.” See Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 534 (Minn. 1992); LM v. Karlson, 646 N.W.2d 537, 546 (Minn. Ct. App. 2002); Yunker v. Honeywell, 496 N.W.2d 419 at 422. For a plaintiff to succeed on a negligent supervision claim, the plaintiff must prove the employee’s misconduct occurred within the scope of employment.
In Yunker v. Honeywell, the Minnesota Court of Appeals explained why the doctrine of negligent supervision encompasses a “scope of employment” limitation: “of the three theories advanced for recovery, only negligent supervision derives from the respondeat superior doctrine, which relies on connection to the employer’s premises or chattels.” 496 N.W.2d 419, 422 (Minn. Ct. App. 1993) (holding that plaintiff could not recover under negligent supervision theory because the employee was not on the employer’s property or using the employer’s “chattels” when the misconduct occurred); see also Oslin v. State, 543 N.W.2d 408, 414 (Minn. Ct. App. 1996) (“The basis of liability is that the tortious act is committed in the scope of employment . . . .”).
Minnesota courts have relied on both the Restatement (Second) of Agency § 213 and the Restatement (Second) of Torts § 317 to analyze negligent supervision claims. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440 at 443 (Minn. Ct. App. 1996). The Minnesota Supreme Court adopted the Restatement (Second of Agency) § 213 in the case Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983). The Restatement (Second of Agency) § 213 provides:
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
* * * * * *
(c) in the supervision of the activity.
Bruchas, 553 N.W.2d at 443.
Under the negligent supervision doctrine, an employer has a duty to prevent foreseeable misconduct of an employee when the misconduct may result in harm to others. Grozdanich v. Leisure Hills Health Center, Inc., 25 F. Supp. 2d 953, 981 (D. Minn. 1998). To establish a claim of negligent supervision, a plaintiff generally must demonstrate the following elements:
- The employee was acting within the scope of employment;
- The negligence occurred on the employer’s premises or with the employer’s chattels (property);
- The employer failed to use ordinary care when supervising the employee; and
- The plaintiff suffered some form of physical injury.
See generally P.L. v. Aubert, 545 N.W.2d 666 (Minn. 1996) (holding that the school district was not liable for a teacher’s sexual harassment of a student under a theory of negligent supervision because while the conduct occurred “within work-related limits of time and place,” it was “unforeseeable” and “unrelated to the duties of the employee”); Oslin v. State, 543 N.W.2d 408 (Minn. Ct. App. 1996).
Negligent Supervision Liability Does Not Include Economic Loss
Notably, the theory of negligent supervision is not available when the employee’s negligence caused only economic harm. The plaintiff must have suffered “physical injury” or threat of physical injury rather than “economic loss” to recover under a theory of negligent supervision. Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 534 (Minn. 1992); see also Johnson v. Peterson, 734 N.W.2d 275, 277 (Minn. Ct. App. 2007) (“Thus, it is well established that a viable negligent-supervision claim must allege physical injury . . . Economic harm alone is not enough to support negligent-supervision actions.”).
Takeaways for Employers
Because Minnesota employers can be liable for accidents and injuries caused by their employees under the theory of “negligent supervision” if the employee was acting within the scope of his or her employment, they should carefully monitor the performance of employees. In appropriate cases, this may include conducting Minnesota criminal background checks, implementing a Minnesota drug and alcohol testing policy, and checking DMV records for prior automobile accidents if the employee will be operating a vehicle on behalf of the employer. Once the employer is on notice that the employee may pose a risk to coworkers or the public, the employer should also take appropriate action.
The employer should comply with the EEOC Guidelines on Criminal Background Checks, the Fair Credit Reporting Act, and Minnesota Drug and Alcohol Testing in the Workplace Act when screening current employees to minimize the risk of negligent supervision liability.
If your company needs assistance developing an employee handbook, employee screening program, discipline and discharge guidelines, or drug and alcohol testing policy, contact one of the Minnesota employment law attorneys of Trepanier MacGillis Battina P.A.
About the Author:
Minneapolis employment law attorney Craig W. Trepanier practices extensively in the area of employment law and has experience drafting pre-employment screening procedures, criminal background check programs, drug and alcohol testing programs, and FCRA compliance programs for Minnesota employers. Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minneapolis employment law firm located in Minneapolis, Minnesota.
Additional Information on Minnesota Employer Liability for Employee Negligence:
This is the fourth in a series of posts about the potential liability of Minnesota employers for accidents and injuries caused by their employees. This series applies to all employers, but is particularly relevant to Minnesota motor carriers, Minnesota household goods moving companies, and all Minnesota employers who require employees to operate vehicles in the course of their employment. The series includes:
Vicarious Liability of Minnesota Employers for Auto Accidents Caused by Employees
Employer Liability for Negligent Hiring Under Minnesota Law
Employer Liability for Negligent Retention Under Minnesota Law
Employer Liability for Negligent Entrustment of Vehicles Under Minnesota Law