Yunker V. Honeywell

8 August 2016

The court meant by its statement that negligent hiring and negligent retention “rely on liability on the part of an individual or a business that has been on the basis of negligence or other factors resulting in harm or damage to another individual or their property” (Luthra, 2011) and not on “an obligation that arises from the relationship of one party with another” (Luthra, 2011).

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The court meant that “negligent hiring and negligent retention do not rely on the scope of employment but address risks created by exposing members of the public to a potentially dangerous individual” (McAdams, 2007, pg. 457). 2. The court rejected the negligent supervision claim because they agreed it was not a viable theory of recovery. They stated that, “Because Landin was neither on Honeywell’s premises nor using Honeywell’s chattels when he shot Nesser” (McAdams, 2007, pg. 457), that therefore made the claim not viable.

The court in this case rejected the negligent hiring claim because of previous case law. In the Ponticas case of 1983, the court defined negligent hiring as, “predicated on the negligence of an employer in placing a person with knowing propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others”.

“Because of this definition under Ponticas, Honeywell argued that it should not be held liable for negligent hiring because, unlike providing a dangerous resident manager with a passkey, Landin’s employment did not enable him to commit the act of violence against Nesser” (McAdams, 2007, pg. 457). 4. The court allowed for the negligent retention issue to go to trial because of some evidence found on the record, which showed a number of episodes after Landin’s imprisonment while employed at Honeywell, a propensity for abuse and violence toward co-employees.

According to the definition by the Florida Appellate court, “Negligent retention occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment” (McAdams, 2007, pg. 458). Since the record contained evidence of a number of episodes during Landins employment after imprisonment where Honeywell should have become aware if not already aware and have taken action, this is why the court allowed for the negligent retention issue to go to trial.

“Employees or their representatives have a right to request an inspection of a workplace if they believe there is a violation of a safety or health standard, or if there is any danger that threatens physical harm, or if an “imminent danger” exists. In addition, anyone who knows about a workplace safety or health hazard may report unsafe conditions to OSHA, and OSHA will investigate the concerns reported” (OSHA, 2011).

What info must the employee give? “Employees or their representatives must provide enough information for OSHA to determine that a hazard probably exists. Workers do not have to know whether a specific OSHA standard has been violated in order to file a complaint” (OSHA, 2011). The following are examples of the type of information that would be useful to OSHA when receiving a complaint: -How many employees work at the site and how many are exposed to the hazard. -How and when workers are exposed, what work is performed in the unsafe or unhealthful area. -What type of equipment is used, Is it in good condition What materials and/or chemicals are used.

Have employees been informed or trained regarding hazardous conditions, -What process and/or operation is involved, what kinds of work are done nearby, -How often and for how long do employees work at the task that leads to their exposure? -How long (to your knowledge) has the condition existed? -Have any attempts been made to correct the problem, on what shifts does the hazard exist? -Has anyone been injured or made ill because of this problem. -Have there been any “near-miss” incidents?  How does OSHA respond?

“OSHA evaluates each complaint to determine how it can be handled best–an off-site investigation or an on-site inspection. Before beginning an inspection, OSHA staff must be able to determine from the complaint that there are reasonable grounds to believe that a violation of an OSHA standard or a safety or health hazard exists. If OSHA has information indicating the employer is aware of the hazard and is correcting it, the agency may not conduct an inspection after obtaining the necessary documentation from the employer”.

“Complaint inspections generally are limited to the hazards listed in the complaint, although other violations in plain sight may be cited as well. The inspector may decide to expand the inspection based on his/her professional judgment or conversations with workers. Complaints are not necessarily inspected in “first come, first served” order. OSHA ranks complaints based on the severity of the alleged hazard and the number of employees exposed.

That is why lower priority complaints can often be handled more quickly using the phone/fax method than through on-site inspections After OSHA conducts a phone/fax investigation or an on-site inspection, the agency sends a letter to the worker or worker representative who filed the complaint outlining the findings, including citations and proposed penalties. Copies of citations also must be posted by the employer at or near the site of the violation. This assures that all workers who might be exposed to a hazard are aware of it and understand the need and the schedule for correction.

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