CACI 426 is the California civil jury instruction for negligent hiring, supervision, and retention, and it requires a plaintiff to prove five things: that the wrongdoer was the defendant’s employee, that the employee was unfit or posed a particular risk for the work, that the employer knew or should have known about that unfitness, that the plaintiff was harmed, and that the employer’s negligence in hiring, supervising, or keeping the worker was a substantial factor in causing that harm.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee Miss any element and the claim fails.
Why CACI 426 Is a Separate Path From Respondeat Superior
California gives an injured person two ways to reach an employer for what a worker did, and they operate on different logic. Respondeat superior, covered by CACI No. 3700, is automatic: if the employee was acting within the scope of employment, the employer is liable regardless of fault, because the law treats losses caused by ordinary business operations as a cost of doing business.2Justia. CACI No. 3700 Introduction to Vicarious Responsibility
CACI 426 targets the employer’s own carelessness in putting the worker in the position or keeping them there, and it can apply even when the harmful conduct falls outside the scope of employment.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee A delivery driver who crashes on a route is a respondeat superior case. That same driver using company keys after hours to assault a customer probably is not — but a negligent hiring theory can still reach the employer if hiring the driver despite a known violent history gave him the access to do it.
The Five Elements Broken Down
1. Employment Relationship
The person who caused the harm has to have been the defendant’s employee. If that relationship is disputed, the jury decides it first. Employers frequently argue the worker was an independent contractor to knock this element out, and California courts look at the actual working relationship rather than the label on any contract.
2. Unfitness or Particular Risk
This is where most of the factual work sits. You have to show the employee had some trait, history, or characteristic that made them dangerous in the specific role the employer put them in. The focus is on the match between the deficiency and the job. Multiple DUIs matter for a driver. A history of financial fraud matters for an accountant handling client funds. A history of violence matters for a caretaker sent into someone’s home.
Not every shortcoming counts. Being slow or unskilled is not the same as being dangerous. What CACI 426 targets is the kind of unfitness that creates a foreseeable risk of harm to others in the role the employer assigned.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee The question courts return to is whether the employer effectively handed the worker the tools and access to cause the kind of harm that actually happened.
3. Employer’s Knowledge
The employer must have known or should have known about the employee’s unfitness and the particular danger it created. Actual knowledge and constructive knowledge both count, and that is dealt with in more detail below.
4. Harm
The plaintiff has to have been harmed. The unfitness the employer failed to catch must be what actually caused the injury.
5. Substantial Factor
The employer’s negligence in hiring, supervising, or retaining the worker must have been a substantial factor in bringing about the harm. A substantial factor is one a reasonable person would consider to have contributed to the harm, more than a remote or trivial factor. It does not need to be the only cause.3Justia. CACI No. 430 Causation Substantial Factor
What “Knew or Should Have Known” Really Means
The knowledge element does two jobs. It catches employers who had concrete information about a problem and hired the person anyway. And it catches employers who stayed ignorant because they never bothered to look.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee Willful ignorance is not a defense.
Actual knowledge is straightforward. A background check that surfaced felony convictions, a reference call in which a former employer warned about violent behavior, an applicant’s own disclosure of a relevant record — once information like that is in the employer’s hands and the person gets hired anyway, the knowledge element is essentially locked in.
Constructive knowledge is where employers more often lose. If an ordinary background check, a reference call, or a review of public records would have surfaced the risk, courts treat the employer as if it had that information. The test is not what the employer actually knew but what a reasonable employer would have discovered through ordinary due diligence. California’s general duty of ordinary care under Civil Code section 1714 sits underneath this, requiring reasonable care in the management of business affairs.4California Legislative Information. California Code Civil Code 1714 – Responsibility for Willful Acts, Negligence
How much investigation is expected scales with the risk. A job involving home visits, childcare, or contact with vulnerable populations demands a serious screening process. A back-office filing job carries a lower bar. Even in a low-risk role, though, skipping references or ignoring publicly available criminal records can establish negligence if those checks would have revealed the danger that later materialized.
Foreseeability and the Link to the Harm
The substantial factor element is more than a formality. The question is foreseeability: was the harm that occurred a foreseeable consequence of the specific unfitness the employer failed to catch? Hiring a worker with a known history of sexual assault who then assaults a customer produces a direct, foreseeable line. That same worker slipping and causing a fall by leaving a wet floor probably does not — the employer’s failure to screen for assault history is not what caused that particular injury.
Courts look for a tight fit between the job duties, the access those duties provided, and the harmful act. A security guard with unsupervised access to occupied buildings, a home health aide left alone with elderly patients, a school bus driver entrusted with children — those are the fact patterns where the connection between careless hiring and the resulting harm becomes hardest to break.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee
What a Plaintiff Can Recover
A successful claim produces compensatory damages meant to put the plaintiff back in the position they were in before the injury. That covers medical bills, lost wages, and pain and suffering. In cases involving serious physical injury or sexual assault, non-economic damages often run well beyond the economic ones. There is no set range; awards depend on the severity of the harm, the egregiousness of the employer’s failure, and the facts.
Punitive damages are available in the worst cases. Under Civil Code section 3294, a plaintiff must prove by clear and convincing evidence that the defendant acted with oppression, fraud, or malice. When the claim rests on an employee’s conduct, the employer must have had advance knowledge of the employee’s unfitness and employed them with a conscious disregard of the rights or safety of others. For a corporate employer, that knowledge and conscious disregard must be attributed to an officer, director, or managing agent.5Justia. California Civil Code 3294 – Exemplary Damages In practice, this is the fact pattern where an employer knew about a worker’s violent history and put them in a role with unsupervised public contact anyway.
Screening Without Running Afoul of the Fair Chance Act
CACI 426 punishes employers for not investigating enough. California’s Fair Chance Act restricts how and when they can investigate. Both apply at once.
Under Government Code section 12952, employers with five or more employees cannot ask about an applicant’s conviction history before making a conditional job offer. That means no questions on the application, no inquiries during interviews, and no criminal background check until an offer is on the table.6Civil Rights Department. Fair Chance Act Even after a conditional offer, some records are off-limits entirely: arrests that did not lead to conviction, participation in diversion programs, and convictions that have been sealed or expunged.
If a post-offer check turns up a conviction and the employer wants to rescind, the law requires an individualized assessment weighing three factors: the nature and gravity of the offense, the time that has passed since the offense and completion of any sentence, and the nature of the job. The employer then has to give written notice of the preliminary decision, a copy of the background report, and at least five business days for the applicant to respond before finalizing an adverse action.
The upshot for employers is that “we didn’t check” is not a safe answer, but “we checked and excluded anyone with a record” is not safe either. The screening has to be timed correctly, calibrated to the risks of the specific job, and documented as an individualized assessment when a record shows up.
How Long You Have to Sue
Negligent hiring claims are personal injury actions, and California’s statute of limitations for injury caused by another’s negligence is two years from the date of the injury.7California Legislative Information. California Code of Civil Procedure 335.1 Missing that deadline typically ends the claim no matter how strong the underlying facts are. The clock generally starts on the date of injury, though delayed discovery may apply where the plaintiff could not reasonably have known about the employer’s negligent hiring at the time.