CACI No. 426 is the California civil jury instruction for negligent hiring, supervision, or retention of an employee, and it sets out five elements a plaintiff must prove: that the person who caused the harm was the defendant’s employee; that the employee was unfit or incompetent for the work or posed some other particular risk; that the employer knew or should have known of that unfitness and the danger it created; that the employee’s unfitness caused the plaintiff’s harm; and that the employer’s negligence in hiring, supervising, or retaining the employee was a substantial factor in bringing about that harm.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee Miss any one of them and the claim fails.
The theory is direct liability against the employer for its own carelessness, not liability borrowed from the employee’s wrongdoing. That makes it a separate track from the more familiar scope-of-employment rule.
How CACI 426 Differs From Vicarious Liability
California recognizes two routes to employer liability, and they operate on different logic. Vicarious liability under CACI No. 3700 and the doctrine of respondeat superior makes an employer automatically responsible for an employee’s wrongful acts committed within the scope of employment, without any showing of fault by the employer itself.2Justia. CACI No. 3700 Introduction to Vicarious Responsibility
CACI 426 targets the employer’s own negligence in choosing or keeping the worker, and it reaches conduct that falls outside the scope of employment.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee If a delivery driver crashes while on a route, vicarious liability covers it. If the same driver later uses company-provided access to a customer’s home to commit an assault, respondeat superior likely won’t apply because the act fell outside the job, but a negligent hiring claim can still reach the employer for giving a dangerous person the access that made the harm possible.
Element One: The Employment Relationship
The plaintiff has to show the person who caused the injury was actually the defendant’s employee. When that status is disputed, the jury decides it as a threshold question before moving to the rest of the instruction. Employers often push back here by arguing the worker was an independent contractor, which, if accepted, pulls the case out of CACI 426 entirely. California courts examine the real working relationship rather than the label on the paperwork, and separate rules can still impose liability for negligent selection of an independent contractor in some situations, particularly inherently dangerous work or where the hiring party kept significant control.
Element Two: Unfitness or a Particular Risk
This is where most of the factual work happens. You have to show the employee had a trait, history, or characteristic that made them dangerous in the specific role the employer gave them. The focus is on the match between the deficiency and the job. A driver with multiple DUI convictions is unfit to operate a company vehicle. Someone with a history of financial fraud is a risk in a role handling client funds.
Not every shortcoming counts. General incompetence or poor performance is not the same as being a danger to others. A slow typist is a bad hire; a caretaker with a history of violent behavior is a dangerous one.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee The question courts ask is whether the employer effectively handed the employee the tools and opportunity to commit the kind of harm that occurred.
Element Three: What the Employer Knew or Should Have Known
The third element uses a “knew or should have known” standard, which does two jobs. It catches employers who had actual information about a problem and hired or kept the person anyway. And it catches employers who stayed ignorant because they didn’t bother to check. Willful ignorance is not a defense.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee
Actual knowledge exists when the employer has concrete information: a background check showing relevant convictions, a reference call warning of violent behavior, or a self-disclosure during the hiring process. Constructive knowledge is what a reasonable background check, reference call, or review of public records would have revealed. Courts treat the employer as knowing what ordinary due diligence would have uncovered.
How much investigation is reasonable scales with the risk the job poses. Positions involving home visits, childcare, or contact with vulnerable people demand thorough screening. Lower-risk roles carry a lower bar, but even there, skipping references or publicly available records can establish negligence if those sources would have shown the danger. California Civil Code section 1714 reinforces the baseline duty of ordinary care in managing one’s affairs.3California Legislative Information. California Code Civil Code 1714 – Responsibility for Willful Acts, Negligence
Element Four: Harm
The plaintiff has to prove an actual injury and that it was caused by the employee’s unfitness. This element ties the second element to the real-world damage, and it keeps the claim grounded in the specific risk the employer failed to catch. An employee’s history of financial fraud doesn’t support a claim brought by someone the employee rear-ended in a parking lot; the harm has to flow from the dangerous characteristic itself.
Element Five: Substantial Factor
Finally, the plaintiff must show the employer’s negligent hiring, supervision, or retention was a “substantial factor” in causing the injury. California defines a substantial factor as one a reasonable person would consider to have contributed to the harm, and it must be more than remote or trivial. It need not be the only cause.4Justia. CACI No. 430 Causation Substantial Factor
The practical question is foreseeability. Was the harm that occurred a foreseeable consequence of the specific unfitness the employer failed to address? Hiring a worker with a known history of sexual assault into a role with unsupervised customer access, where an assault then occurs, is a direct and foreseeable connection. If that same worker causes a slip-and-fall by leaving a wet floor, the failure to screen for assault history probably wasn’t a substantial factor in that particular injury. Courts look for a tight link between job duties, the access those duties provided, and the harmful act.1Justia. CACI No. 426 Negligent Hiring, Supervision, or Retention of Employee
Damages a Plaintiff Can Recover
A successful CACI 426 claim supports compensatory damages: medical expenses, lost wages, pain and suffering, and other losses tied to the injury. In cases involving serious physical harm or sexual assault, non-economic damages often exceed the economic ones. There is no fixed range; awards depend on the severity of the injury, the egregiousness of the employer’s conduct, and the facts of the case.
Punitive damages are available in the worst cases. Under California Civil Code section 3294, a plaintiff must prove by clear and convincing evidence that the defendant acted with oppression, fraud, or malice. For employer liability tied to an employee’s acts, the statute requires that the employer had advance knowledge of the employee’s unfitness and employed them with a conscious disregard of the rights or safety of others. When the employer is a corporation, that advance knowledge and conscious disregard must be on the part of an officer, director, or managing agent.5Justia. California Civil Code 3294 – Exemplary Damages In practice, that threshold reserves punitive awards for cases where someone with real authority knew about the danger and hired or kept the worker anyway.
Defenses Employers Commonly Raise
Beyond the independent contractor argument discussed above, two defenses come up repeatedly.
The first is workers’ compensation exclusivity. When the injured person is a co-worker, workers’ compensation benefits are generally the sole remedy for workplace injuries, which bars most civil suits against the employer for negligence. The defense is strongest when the plaintiff is a fellow employee and the employer’s conduct was negligent rather than intentional. It does not apply to claims brought by third parties, such as customers or members of the public, which is where most negligent hiring cases arise.
The second is lack of knowledge, actual or constructive. If the employee had no criminal record, no concerning employment history, and no red flags a reasonable reference check would have surfaced, the employer may argue the danger was genuinely hidden. This defense works best when the employer can show it actually conducted a reasonable screening process and still came up empty.
Deadline to File
Negligent hiring claims are personal injury actions, and California Code of Civil Procedure section 335.1 sets a two-year statute of limitations for injury caused by another person’s negligence.6California Legislative Information. California Code of Civil Procedure 335.1 The clock generally starts on the date of the injury. Delayed discovery rules may extend the deadline where the plaintiff could not reasonably have known about the employer’s role in the harm at the time it occurred. Missing the deadline typically ends the claim regardless of how strong the facts are.