When litigating personal injury and employment-related torts in New Jersey, defendants frequently move for summary judgment on direct negligence claims, such as negligent hiring or negligent retention, by arguing that these counts are rendered redundant or legally barred if the employee was acting within the scope of employment.
For practitioners, overcoming this defense is critical. Under New Jersey law, this argument is fundamentally incorrect. Plaintiffs can, and frequently do, file both a vicarious liability claim (respondeat superior) and direct claims for negligent hiring and retention. Moreover, once the evidence is presented at trial, New Jersey practice dictates that distinct questions must be submitted to the jury on the verdict sheet to address these separate theories of recovery.
Our firm has an actively litigated case now against NJ Transit in Essex County, New Jersey, where the defense is trying to have our client’s case dismissed because we have both claims pending. The client has devastating injuries after a NJ Transit bus driver failed to see our client trying to get on the bus and ran over his leg, causing a degloving injury and shattered leg. The driver of the bus had over 60 prior infractions before this accident and NJ Transit still allowed him to drive. Their arguments are weak and we expect to win the motion.
We have round tabled the case with our firm’s in house retired Judges and other attorneys, and they believe the motion is borderline frivolous.
The Separation of Direct and Vicarious Liability Claims
A claim based on negligent hiring or negligent retention is entirely separate and distinct from a claim based on respondeat superior (Hoag v. Brown, 397 N.J. Super. 34 (App. Div. 2007)).
To understand why these claims coexist, one must look at the foundational nature of the torts:
- Direct Fault (Negligent Hiring/Retention): This is a primary liability tort based on the direct fault of the employer (Hoag v. Brown, 397 N.J. Super. 34 (App. Div. 2007); G.A.-H. v. K.G.G., 238 N.J. 401 (2019)). It focuses on the employer’s own carelessness or failure to exercise reasonable care in selecting, supervising, or keeping an employee.
- Vicarious Fault (Respondeat Superior): In contrast, respondeat superior is a doctrine of vicarious liability based strictly on agency principles and the legal fiction that the employee's actions are imputed to the employer when acting within the scope of employment (Hoag v. Brown, 397 N.J. Super. 34 (App. Div. 2007); G.A.-H. v. K.G.G., 238 N.J. 401 (2019)).
Because these claims address entirely different wrongs—the employer's independent negligence versus the imputed liability of an agent's actions—they are not mutually exclusive, and both may be pursued concurrently in a single action (Hoag v. Brown, 397 N.J. Super. 34 (App. Div. 2007)).
Defeating Summary Judgment: Scope of Employment is Not a Bar
A common trap for defense counsel is asserting that if an employee acts within the scope of employment, a negligent hiring claim evaporates. New Jersey jurisprudence rejects this outright.
To defeat a motion for summary judgment on a negligent hiring or retention claim, the plaintiff does not need to show that the employee acted outside the scope of employment. Under New Jersey law, the employee conduct forming the basis of a negligent hiring or retention claim does not need to be within the scope of employment, nor is it limited by it (Di Cosala v. Kay, 91 N.J. 159 (1982)).
The Core Elements to Survive Summary Judgment and Reach Trial
To survive a motion for summary judgment and keep direct negligence claims alive, a plaintiff must establish that there are genuine issues of material fact regarding the two constituent elements of a negligent hiring or retention claim:
Employer Knowledge and Foreseeability of Harm
The plaintiff must show that the employer knew or had reason to know of the employee’s particular unfitness, incompetence, or dangerous attributes, and could reasonably have foreseen that such qualities created a risk of harm to other persons (G.A.-H. v. K.G.G., 238 N.J. 401 (2019); Di Cosala v. Kay, 91 N.J. 159 (1982); Johnson v. Usdin Louis Co., 248 N.J. Super. 525 (App. Div. 1991)).
The scope of this duty is properly determined by whether the risk of harm from the dangerous employee to a person such as the plaintiff was reasonably foreseeable as a result of the employment (Johnson v. Usdin Louis Co., 248 N.J. Super. 525 (App. Div. 1991); J.P. v. Lawrence Twp. Bd. of Educ., 2022 N.J. Super. Unpub. LEXIS 449 (App. Div. 2022)).
Proximate Cause
The plaintiff must show that, through the negligence of the employer in hiring or retaining the employee, the employee’s incompetence, unfitness, or dangerous characteristics proximately caused the injury (G.A.-H. v. K.G.G., 238 N.J. 401 (2019); Di Cosala v. Kay, 91 N.J. 159 (1982); Johnson v. Usdin Louis Co., 248 N.J. Super. 525 (App. Div. 1991)).
Submitting Distinct Issues to the Jury: The Verdict Sheet Requirements
Once the trial reaches its conclusion and all evidence has been presented, the trial court must structure the jury instructions and the verdict sheet to reflect the dual paths of liability. Because direct negligence and vicarious liability rely on separate legal frameworks, bundling them into a single generalized question invites reversible error or jury confusion.
Specifically, two distinct, core questions must be submitted to the jury on the verdict sheet regarding these liability theories:
- The Driver's Negligence (Underlying Tort): The jury must first determine whether the employee/driver was negligent in the operation of the vehicle (or commission of the underlying act) and whether that negligence was a proximate cause of the plaintiff’s injuries. This establishes the baseline wrongful conduct.
- The Employer's Liability for Negligent Hiring and Retention: The jury must separately determine whether the employer itself failed to exercise reasonable care in hiring or retaining the employee, and whether that independent employer negligence was a proximate cause of the plaintiff's injuries (Model Civil Jury Charges (Civil), 5.76, "Negligent Hiring").
Separating these inquiries ensures that the jury explicitly evaluates both the agency-imputed conduct and the independent corporate malfeasance or carelessness of the employer.
Navigating Public Entities and the New Jersey Tort Claims Act (TCA)
When the defendant in question is a public entity (such as NJ Transit), standard civil liability frameworks intersect with strict statutory constraints. Practitioners must carefully weigh the specific statutory provisions and immunities of the New Jersey Tort Claims Act (N.J.S.A. 59:1-1 et seq.), ensuring that notice requirements and public employee immunity exceptions are properly addressed alongside direct negligence pleadings.
Conclusion
When defending against summary judgment motions that seek to prune direct negligence counts out of a complaint, plaintiff attorneys should stand firm on established New Jersey precedent. Direct negligent hiring and retention claims vindicate an entirely different wrong than vicarious liability theories. By ensuring that the verdict sheet cleanly separates the question of the driver's underlying negligence from the independent inquiry into the employer's negligent hiring and retention, practitioners can successfully preserve all pathways to recovery for their clients.
If you have suffered serious injuries due to the fault of another individual or company, contact our office for a Free consultation with a NJ lawyer. The faster you act the better our firm can protect your rights and begin our investigation.
