An Employer May be Held Liable for an Employee in Hawaii

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There are several theories under which an employer may be held liable for the acts of an employee.  The most straightforward is called respondeat superior liability.  The elements of respondeat superior liability are (1) employee negligence (2) within the scope of the employee’s employment.  Id. (citations omitted). In defining the scope of an employee’s employment, the Hawaii Supreme Court reiterated its approval of Restatement (Second) of Agency §228 (1958) which states as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of  force is not unexpectable by the master.

Restatement (Second) of Agency §228 (1958) 

“An employer may be liable for the intentional torts of its employees as the law now imposes liability whether the employee’s purpose, however misguided, is wholly or in part to further the master’s business.”  State v Hoshijo ex rel. White, 102 Hawaii 307, 318, FN 27 (Hawaii, 2003).  In Wong-Leong v Hawaiian Independent Refinery, Inc., 76 Hawaii 433, 438 (1994).

“In instances where an employer cannot be held vicariously liable for its employee’s torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision.  However, a necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which cause the injury.”  Kenneth R. v Roman catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 (N.Y.A.D. 2 Dept, 1997)

Indeed, Hawaii recognizes an action for negligent supervision.  See Costa v Able Distributors, Inc., 3 Haw.App. 486, 490 (Hawaii App., 1982).  In Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000), the Hawaii Supreme Court looked to the Restatement (Second) of Torts § 317 for the standards for a claim of negligent supervision by an employer.  According to Restatement (Second) of Torts § 317, an employer may be liable for negligent supervision if its employee intentionally harms another when the employee (i) commits the harm on the employer’s property or with the use of the employer’s chattels, (ii) the employer knows or should have known that the employer has the ability to control its employee and (iii) the employer knows or should have known that the employee needed to be controlled. 

Under the theory of negligent supervision, “an employer’s duty to control the conduct of his employee may arise when the acts complained of are so connected in time and place with the employment as to give the employer a special opportunity to control the employee.”  Costa v Able Distributors, Inc., 3 Haw.App. at 490.  As previously mentioned, “in order for the plaintiff to recover, he must show that the employer knew or should have known of the necessity and opportunity for exercising control over the employee.”  Id.  For example in Costa, the Hawaii Court of Appeals stated that the employer’s duty would arise only if the employer knew or should have known that the employee had a “propensity for causing automobile collisions while driving under the influence of alcohol, and thus, [the employer] should have prevented [the employee] from consuming beer on its premises.” 

Unlike the theory of respondeat superior where the employer is vicariously liable for the acts of its employees “that occur within the scope of employment,” a claim for negligent supervision, requires that the employee acted “outside of his or her employment.”  See Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000).  Therefore, a complaint fails to state a claim for negligent supervision if the complaint fails to assert that the employee acted outside the scope of his employment.  Dairy Road Partners at 427.