34 Negligent Supervision1
A. Definition
Negligent supervision is a tort action in which an employer may be held liable for the conduct of an employee outside the scope of employment.2 Liability is not based on principles of agency as when the employee is acting within the scope of employment,3 nor is it based on the negligence of the employee.4 The cause of action has only recently been recognized in South Carolina.5
B. Elements
An employer may be liable for negligent supervision when an employee intentionally harms another and:
(1) the employee is on the premises of the employer or using a chattel of the employer
(2) the employer knows or has reason to know of the ability to control the employee
(3) the employer knows or should know of the necessity and opportunity for exercising control.6
C. Elements Defined
1. The Employee Is on the Premises of the Employer or Using a Chattel of the Employer
The employer is charged with the duty using reasonable care to police the employment premises or other premises which the employer has the privilege of entering in order to prevent an employee7 from doing harm to others.8 Similarly, the employer must use reasonable care to prevent the misuse of chattels entrusted to employees for their use.9 The correct inquiry focuses on the employer's specific knowledge, or duty to have knowledge, as to the employee's use of the employer's chattels.10
Where an employee truck driver had an altercation at a truck stop with another driver, the employer was not liable for negligent supervision because the fight did not take place on the employer's property and did not involve use of the employer's chattel since the employee had already exited the company vehicle before the altercation started.11
2. The Employer Knows or Has Reason to Know of the Ability to Control the Employee
This element is not clearly defined in the case law, but it appears it is intended to require the plaintiff to show the defendant had the means to control the employee's conduct.12
The second element received some definition in the case of Charleston, S.C. Registry for Golf & Tourism, Inc. v. Young Clement Rivers & Tisdale, LLP.13 In Young Clement an attorney who was employed by the appellee law firm was also a partner in the appellant business. The appellant alleged the attorney had misappropriated corporate funds and committed professional malpractice. The law firm fired the attorney, but the corporation brought suit against it charging, inter alia, negligent supervision for failure to adequately monitor the attorney's involvement with the corporation. The court said that disposition of the claim depended on whether the firm owed a duty to the corporation. It noted that the record revealed no evidence the firm knew, or should have known, of the attorney's involvement with the corporation, and therefore did not know of the necessity to control the attorney.
3. The Employer Knows or Should Know of the Necessity and Opportunity for Exercising Control
The plaintiff must show the employer knew or should have known of the need to control the conduct of the employee. This may be by evidence the employer had knowledge of previous misconduct.14
Key components of the element are knowledge of the employer and foreseeability of harm to third parties.15
A trial court erred in dismissing the complaint of parents that a public school district "acted with gross negligence in failing to protect their daughter from the known danger of the substitute teacher's inappropriate interest in young girls" since the plaintiffs, in the opinion of the South Carolina Supreme Court, stated a cause of action for negligent supervision.16 However, because the Tort Claims Act provides that a governmental entity is not liable for a loss resulting from any "responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any student ... except where the responsibility or duty is exercised in a grossly negligent manner,"17 a plaintiff making a claim against a public school must allege gross negligence.18 Based on the Supreme Court decision, a federal court concluded that a school district had a duty not to supervise or exercise custody of a student in a "grossly negligent manner."19 Note that negligent supervision of a school employee is different from negligent supervision of a student. The former is consistent with the usual construct of the tort — liability for conduct of an employee acting outside the scope of employment — while the latter concerns failure to protect the safety of a student, a claim more like general negligence or perhaps premises liability rather than negligent supervision.
D. Defenses
The statute of limitations applicable to negligence actions is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.20
Contributory negligence is a defense in a negligence action that requires the defendant show the plaintiff was negligent21 and that the negligence was the proximate cause of the injuries.22 Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.23 Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.24
South Carolina law does not prohibit a plaintiff from pursuing a negligent hiring, training, or supervision claim once respondeat superior liability has been admitted by the defendant employer.25
Assumption of the risk is a defense to negligence which is recognized in South Carolina in two forms: express assumption and implied assumption.26 Express assumption derives from an agreement to waive liability27 whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it.28 A plaintiff is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.29
The South Carolina Tort Claims Act30 waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity. 31 It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiff's cause of action.32 One limitation is that governmental entities33 are not liable for a loss resulting from "employee conduct outside the scope of [the employee's] official duties ...".34 The tort of negligent supervision, of course, is by definition one involving conduct outside the scope of employment.35 Further, there is no liability for conduct which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude ...".36 The majority of reported appellate opinions involve sexual misconduct, behavior constituting actual malice, intent to harm, or a crime of moral turpitude, and likely all three. Another limitation is that governmental entities are not liable for losses resulting from a responsibility or duty for supervision, protection, control, confinement, or custody of any student, patient, prisoner, inmate, or client of any governmental entity, except when that responsibility or duty is exercised in a grossly negligent manner.37
Where the plaintiff alleges an injury arising out of and in the course of his or her employment, the claim for negligent supervision may be preempted by the exclusivity provision of the Workers' Compensation Act.38
E. Damages
One of the few reported appellate cases to discuss damages is Doe v. Greenville Hospital System,39 in which a minor was sexually assaulted by a hospital security guard. The defendant argued the trial court erred in charging the jury that damages for mental pain and suffering could be recovered in an action for negligent supervision. The appellate court disagreed noting that the charge did not actually include the phrase "mental pain and suffering." The court went to argue:
... even if the trial judge did charge the jury on mental pain and suffering, we find no error. The record is replete with evidence that Mary Doe suffered severe mental injury as a result of the sexual assault. The fact that she may have suffered no actual physical injury at the time of the assault is not determinative.
... we find the evidence shows Mary Doe suffered bodily injury in the form of a mental injury and, therefore hold the circuit court did not err in charging the jury on mental pain and suffering.40
Apparently, punitive damages are available in an action for negligent supervision. In Longshore v. Saber Sec. Servs.41 the trial court submitted the issue of punitive damages to the jury, but the appellate court held that decision was in error since the plaintiff failed as a matter of law to demonstrate, by clear and convincing evidence, that the defendant's negligence in hiring, training, and supervising its employee was willful...
