All posts tagged Negligence

Employer Liability for Negligent Hiring

Published September 9, 2013 by Mayrbear's Lair


Smart business leaders have a firm grasp of comprehending the law and recognizing its limitations when it comes to operating a business. Walsh (2013) explains that, “No single set of employment law covers all workers” (Walsh, 2013). In fact, employment laws consists of a variety of federal, state, and local laws that are contingent upon such things like: (a) whether the individual is a government employee, (b) whether the individual works in the private sector, (c) the size of their company or (d) whether they have any union affiliation. In addition, employment laws are ever changing, as new employment laws are created and old ones are reinterpreted.


To better understand these laws, we will examine a case study of a scenario involving  a 17 year old plaintiff that seeks damages as a result of being violently assaulted by an employee of the defendant, XYZ Motor Freight Inc. When XYZ hired the employee that committed the assault, they questioned the individual with respect to prior vehicular offenses and criminal convictions. However, due to their position on EEOC discrimination statutes, XYZ only chose to verify his vehicular offenses and ignored his negative response to the criminal convictions inquiry. Rassas (2011) suggests that employers who have a working knowledge of labor law and the obligations of employers can help them avoid litigious events such as this. A lack of knowledge can unintentionally result in a failure to abide by a law and impact the operation of an organization significantly (Rassas, 2011). For example, employment laws have been established to protect both employees and employers by imposing certain responsibilities. For employees, employment at will is a default rule that permit employers to terminate employees without having a good reason. This means the employee has the freedom to engage in collective bargaining with their employers. In addition, according to employment laws, each relationship is subject to the terms and conditions of employment that meet minimum required standards. However, in today’s society the most effective and successful people, whether employer or employee, should also take responsibility and accountability to ensure their own safety as well as those of others.

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XYZ’s position is that it did not seek to verify the criminal background check citing they had no duty to do so because of a lack of foreseeability. They further defended their position stating that to impose such a duty would be against public policy and place too great a burden on them. However, in this case, failing to do so created another burden for them. Seaquist (2012) purports that when an employee is working within the scope of their employment, the employer will be liable to third parties for the torts of their workers under the doctrine of respondent superior (Seaquist, 2012). The plaintiff in this case seeks justice arguing that the employer should have been cognizant that the employee they hired was dangerous because he had a history and a record of violent sex related crimes when they hired him. In other words, by not checking his criminal background they created a dangerous condition by putting him in a situation in which he was able to bring harm to others because they failed to verify his criminal record.


Both sides have very effective defenses to support their position. XYZ claims they did not verify the criminal background check because they were acting in accordance with EEOC discrimination law issues. However, because the employee was hired to participate in interstate commerce, it is their responsibility to make sure the individual performs their duties to best of their ability and trust they will not engage in misconduct or inappropriate behavior. In my view, if I were a business leader for XYZ, I would be concerned about the damages from the negative publicity alone that a case like this attracts. That is reason enough to engage in thorough employee investigations scrutinizing criminal backgrounds a little closer because of the nature of the trucking industry. As a part of the legal counsel for XYZ, I would suggest a settlement to keep the matter private to preserve the organization’s reputation, and take responsibility for their employee’s ethical misconduct by paying any and all damages to the plaintiff as an act of good faith that supports an ethical corporate climate.


The plaintiff is in her right to seek damages for being so horrifically violated. However, the jury must decide on whether or not XYZ was responsible for negligence because they were acting in accordance with EEOC mandates with respect to the background check issue. Unfortunately, in a life changing situation as this, hopefully both parties learned some valuable life lessons from this experience. The defendant can begin to take more effective methods to insure the competence of their employees, and the plaintiff came to understand, that although an individual may represent an organization, that does not mean the individual is free of behavior from criminal or ethical misconduct. The moral of the story: never, ever, accept a ride from a stranger. The movie Hitchhiker was a good reminder as to why.


Rassas, L. (2011). Employment law: a guide to hiring, managing, and firing employers and employees. New York, NY: Aspen Publishers.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

Walsh, D. (2013). Employment law for human resource practice. Mason, OH: Cengage Learning.

Negligent Tort

Published August 23, 2013 by Mayrbear's Lair


Companies can be liable for a negligent tort if they falsely represent a product, the product brings harm, or it causes injury to consumers.  These offenses are considered unintentional torts of negligence. Bevans (2011) suggests that negligence can be difficult to prove and not all acts of neglect are actionable under the law. Nevertheless, under certain conditions, a party that is neither negligent nor guilty of an unintentional tort may still be subject to damages and when injuries are sustained, presents an opportunity for a cause of action (Bevans, 2011). This research is focused on the unintentional actions of negligence that resulted in a product recall. To better comprehend and illustrate the legal process to identify the liable party, the study of this research is focused on Recall Case Number 13-742, dated July 11, 2103, issued by the Staples Corporation of their catalog item known as the Bermond Fabric Manager’s Chair: a product manufactured and imported from China (Government, 2013). The research will also examine consumer protection laws and determine if the cause of action is based on: (a) warranty, (b) negligence, or (c) strict liability.  In addition the analysis will explore defenses for negligence as well as some of the typical components that can lead to a product recall case including: (a) elements of negligence, (b) consumer protection, (c) duty of care, and (d) foreseeability and proximate cause. The research will conclude that manufacturers are obligated to abide by duty of care concepts to patrons because consumer protection statutes can lead to litigation that can result in costly damages or, in extreme cases, bankruptcy.


Product Recall Case Study

Bermond Fabric Manager’s Chair Recall

When a company receives an abundant amount of complaints about a product, they could be liable for negligence. Marsh (1999) postulates that consumer protection statutes offer consumers a safeguard against a manufacturer or company that sells a defective product. It is the responsibility of the buyer, however, to establish evidence that the consumer: (a) has a justifiable reason for the claim, (b) experienced harm or damage by the product, and (c) used the product correctly (Marsh, 1999). These components are essential to help attorneys determine whether to pursue absolute or strict liability actions and decide if the litigation costs will outweigh the potential damages.

The sample case study for this research is focused on a recent recall issued by Staples of a popular office chair. The incident addresses one of the most common offenses a business leader runs into: a potential strict liability case from an unintentional tort. Seaquist (2012) stated that in a strict liability tort, manufacturers, wholesalers, and retailers are the parties held liable for defects in the design or manufacturing of a product. Product liability torts are based on three causes of action: (a) warranty, (b) negligence, and (c) strict liability (Seaquist, 2012).  Under these parameters, a plaintiff can make a claim against the Staples Corporation because they were identified as the retailer of the product that caused harm when it malfunctioned.



Elements of Negligence

Even though recalls can prevent further harm from a defective product, manufacturers and the companies that sell products that cause injuries to consumers can be liable for negligence. Seaquist (2012) contends that in order to determine a negligence case, four elements are typically addressed: (a) proving the defendant’s duty of care, (b) evidence that supports the defendant breached their expected duty of care, (c) verifying the plaintiff sustained injuries caused by the breach, and (d) establishing evidence that the plaintiff suffered emotional or physical harm (Seaquist, 2012). In addition, to establish product liability litigation, the plaintiff must demonstrate that: (a) the product was properly used, (b) it was received in an unaltered form, and (c) it malfunctioned due to a design defect. For example, the government report stated the reason the office chair was issued a recall, was because the chair posed a falling hazard due to a weakness in the structure of the base. The report indicated the recall was issued after over forty consumers filed reports complaining the bases of the chairs broke.  In addition, two reported limb injuries and another suffered a bump on the head and sustained back injuries. Because litigation that involves negligence can be a costly event, companies take every measure to protect their organization from selling products that can cause death or injury to consumers. They also want to avoid negative publicity that can result in a loss of profits, because clients that are fearful and lose trust in an organization are reluctant to engage in commerce.


Consumer Protection

Costly negligence litigation can also lead a company towards bankruptcy. Due to the rising number of manufactured products that result in injuries, the government created the Consumer Product Safety Commission (CPSC) to help manage consumer protection. Seaquist (2012) postulates that the agency monitors a wide variety of injuries, like, for instance, those sustained at public athletic facilities and amusement parks. The CPSC was established to help regulate safety in a variety of industries and hundreds of statutes and regulations were incorporated to support them. For example, organizations are required to follow the guidelines provided by the Virginia Graeme Baker Pool and Spa Safety Act to protect consumer safety in pool and spa environments. Government protection agencies also serve to mitigate the dangers of toxins with poison control implemented by the Poison Prevention Packaging Act and the Flammable Fabrics Act regulates flammable material that can be found in children’s clothing items (Seaquist, 2012). In short, consumer protection agencies and their offshoots help manage many different environments where issues of consumer hazards exist. The Staples office chair recall, for instance, was issued as a result of the complaint and incident reports filed from consumers which included injuries that were sustained. The recall decision, in this case, demonstrated that Staples was acting responsibly by taking swift action.  In addition, the recall strategy supports good business practices, demonstrated by their taking steps to address a situation and alleviate further incidents by removing a hazardous product from their catalog. This action supports an ethical culture and is behavior that falls in accordance with Consumer Product Safety Act mandates.


Duty of Care

Companies are also obligated to follow duty of care concepts. Marsh (1999) points out that consumer trades with merchants also occur through internet commerce as well.  Each of these transactions, however, requires that the ordinary rules of contract law apply.  In other words, since each is considered a consumer transaction, special consumer protection statutes and rules apply (Marsh, 1999). For this reason, it is a company’s responsibility to engage in duty of care practices. This means that they acknowledge and accept a standard of behavior that is expected of an individual in a certain circumstance.  In some instances, however, the duty of care is identified by statutes.  This is known as statutory duty of care. One example of this can be seen in a local ordinance that mandates all property owners establish separate recycle bins to divide paper, glass, and plastic products for scheduled collections. When standards of care are established by law, the defendant is considered liable for violations of that statute.  In short, once a duty of care has been established, a plaintiff must prove that the defendant fell short of it.

The government report of the Staples recall case stated the office chair was manufactured and imported from China. Once they were made aware of the malfunction issue, the Staples Company, the retailer of the item, took responsibility and implemented swift action by issuing the recall and urged consumers to immediately cease using them. Subsequently, consumers were instructed to contact Staples corporate headquarters for directions on returning the defective product to receive a full refund. The report further substantiates that in addition, Staples directly contacted all known customers in their database to provide them with the recall information.  Staples’s rapid action demonstrated an immediate response to what would be considered a strict liability tort case. They displayed ethically responsible corporate behavior to protect shareholders. In the meantime, to collect any damages incurred from the defective product, the Staples Corporate Legal Department can examine their Risk of Loss Rules and Contracts to determine the next course of action with respect to the Chinese manufacturer that produced it.

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Foreseeability and Proximate Cause

Consumer protection statutes provide safeguards that defend citizens. Bevans (2011) proposes that in addition, a plaintiff may address whether it was foreseeable that their actions would cause harm or injury and whether they suffered as a result (Bevans, 2011). In other words, did the plaintiff use the product in an unsafe manner? This is known as direct causation, in that the injury was sustained from a breach in usage.  In order for a plaintiff to become victorious in a negligence lawsuit, it is essential they prove direct causation.  If, on the other hand, the incident occurred and the consumer was aware from prior events that the product posed certain dangers, then the duty of business changes because of the foreseeability factor. For example, once Staples became aware of the dangers the office chair posed from the many incidents that occurred, the Staples Company, from the eyes of consumer protection agencies, was considered put on notice. This means that the Staples Corporation became aware of the situation and displayed appropriate behavior by taking measures to resolve it. It is then the responsibility of the corporation to implement further measures to ensure higher levels of safety to prevent future occurrences, as well as seek restitution from the Chinese manufacturers that sold the defective product outlined in the terms of their contractual obligations. These are effective strategies to maintain good public relations and trust. In addition, it demonstrates that the Staples Corporation is comprised of an ethical business climate. Had the product not been recalled and further injuries sustained, Staples’s reputation could have suffered. It is clear from their swift action that Staples wanted to protect stakeholders and avoid further injuries that could lead to actions of strict liability torts.


Although recalls can prevent further harm to consumers, retailers, wholesalers and manufacturers are typically held liable for negligence if a product causes injuries. Seaquist (2011) submits that even when negligence has been established, however, a defendant can still avoid tort liability by engaging in one of three defense strategies: (a) contributory negligence, in which the evidence supports that the plaintiff’s actions contributed to their injuries; (b) comparative negligence, where the plaintiff’s negligence is subtracted from the final award; and (c) assumption of risk, where the defendant provides evidence to support the claim that the plaintiff suffered injuries from an activity they were made cognizant of the risk and hazardous conditions it posed (Seaquist, 2012). These defense strategies can serve to limit or completely avoid a defendant’s tort liability and are critical components in the litigation process. In conclusion, the findings of this research determined companies are obligated to abide by duty of care concepts and that in strict liability negligent torts, retailers, wholesalers, and manufacturers are held liable for products that cause consumers harm.



Bevans, N. (2011). Consumer law & protection: A practical approach. Durham, NC: Carolina Academic Press.

Government, U. (2013, July 11). Recalls. Retrieved August 11, 2013, from

Marsh, G. (1999). Consumer protection law in a nutshell. St. Paul, MN: West Publishing Co.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.