N.C.P.I.—Civil 640.42

[You will answer this issue only if you have answered issue (state

issue number) “Yes” in favor of the plaintiff].4 On this issue the burden of

proof is on the plaintiff. This means that the plaintiff must prove, by the

greater weight of the evidence, that the employer was negligent in

[hiring] [supervising] [retaining] (state name of employee) as an

employee. Negligence refers to a party’s failure to follow a duty of

conduct imposed by law. Negligence is not to be presumed from the mere

fact of [injury] [damage].

To establish negligence on the part of the employer in [hiring]

[supervising] [retaining] (state name of employee), the plaintiff must

prove, by the greater weight of the evidence, the following:5 1) that

(state name of employee) committed a [negligent] [wrongful]6 act; 2)

that the employer owed the plaintiff a legal duty of care; 3) that (state

name of employee) was incompetent; 4) that, prior7 to the act of (state

name of employee) resulting in [injury] [damage] to the plaintiff, the

employer had either actual or constructive notice8 of this incompetence;

and 5) that this incompetence was a proximate cause of the plaintiff’s

[injury] [damage].9

I will now discuss these things one at a time and explain the terms

used.

First, the plaintiff must prove that the employee committed a

[negligent] [wrongful] act by (describe act).

NOTE WELL: In most cases, this element will have

been met by an affirmative answer to the issue

addressing the named defendant-employee’s negligent

or wrongful act and need not be resubmitted here. If

for some reason the issue of the individual employee’s

negligent or wrongful act has not been submitted to

the jury, it may be addressed in two different ways. If

the employee’s act has been established by stipulation

or admission, state the nature of the stipulation here.

To craft an instruction based upon the parties’

stipulation, see N.C.P.I.—Civil 101.41—Stipulations. In

the absence of a stipulation or admission, define the

negligent or wrongful act alleged and enumerate its

elements, using the Pattern Jury Instruction for that

act. If the issue of an individual employee’s negligent

or wrongful act is submitted, consider offering a

limiting instruction as to what evidence may be

considered by the jury in answering that issue. While

evidence tending to show that the individual employee

may have been careless or negligent in the past may

be considered by the jury in determining whether the

employer had knowledge of the employee’s alleged

incompetence, see element three, infra, such evidence

may not be considered by the jury on the question of

whether the individual employee acted negligently or

wrongfully on the occasion in question.

Second, the plaintiff must prove that the employer owed the

plaintiff a legal duty of care.10 Every employer is under a duty to use

ordinary care in the hiring, supervision, or retention of [his] [her] [its]

employees in order to protect others from [injury] [damage]. Ordinary

care means that degree of care which a reasonable and prudent employer

would use under the same or similar circumstances to protect others from

[injury] [damage].

No legal duty exists unless the injury to the plaintiff was

foreseeable and avoidable through due care. An injury to the plaintiff is

foreseeable if the employer could have foreseen that some injury would

result from the employer’s conduct in hiring, supervising, or retaining

[his] [her] [its] employees or that consequences of a generally injurious

nature might be expected if the employer failed to exercise ordinary care

under the circumstances.11

NOTE WELL: A negligent hiring, supervision, or

retention claim can be brought against an employer

based on its employee’s negligence12 or based on its

employee’s intentional tortious or criminal act.13

Where the plaintiff contends that the employee was

negligent, no further instruction on the second element

is required. Where the plaintiff contends that the

employee committed an intentional tort or criminal act,

use the following bracketed language:

[In this case, the plaintiff must also prove that there is

a nexus between the employment relationship and the

injury.14 In determining whether there is a nexus

between the employment relationship and the injury,

you should consider the circumstances as you find

them to have existed from the evidence, which may15

include [whether the employee and the plaintiff were in

places where each had a right to be when the wrongful

act occurred] [whether the plaintiff met the employee,

when the wrongful act occurred, as a direct result of

the employment] [whether the employer received some

benefit, even if only potential or indirect, from the

meeting of the employee and the plaintiff that resulted

in the plaintiff’s injury] [and such other circumstances

that are supported by the evidence.]]

Third, the plaintiff must prove that (state name of employee) was

incompetent. This means that (state name of employee) was not fit for

the work in which (state name of employee) was engaged.16

Incompetence may be shown by inherent unfitness, such as [the lack of

physical capacity or natural mental gifts] [the absence of [skill] [training]

[experience]] [the employee’s disposition] [such other characteristics that

are supported by the evidence].17

[Incompetence may also be inferred [from previous specific acts of

careless, negligent, or wrongful conduct by (state name of employee)]18

[or] [from prior habits of carelessness or inattention on the part of (state

name of employee) in a kind of work where careless or inattentive

conduct is likely to result in injury].19 However, evidence, if any, tending

to show that (state name of employee) may have been careless,

negligent, or wrongful in the past may not be considered by you in any

way on the question of whether (state name of employee) acted

[negligently] [wrongfully] on the occasion in question, but may only be

considered by you in your determination of whether (state name of

employee) was incompetent, and whether such incompetence was known

or should have been known to the employer.20]

Fourth, the plaintiff must prove that the employer had either actual

or constructive notice of (state name of employee)’s incompetence.21

Actual notice means that prior22 to the alleged act of (state name of

employee) resulting in [injury] [damage] to the plaintiff, the employer

actually knew of (state name of employee)’s incompetence.

Constructive notice means that the employer, in the exercise of

reasonable care, should have known of (state name of employee)’s

incompetence prior to the alleged act of (state name of employee)

resulting in [injury] [damage] to the plaintiff.23 Reasonable care is that

degree of care in the [hiring] [supervision] [retention] of (state name of

employee) that a reasonably careful and prudent employer would have

exercised in the same or similar circumstances.24

Fifth, the plaintiff must prove that (state name of employee)’s

incompetence was a proximate cause of the plaintiff’s [injury] [damage].

Proximate cause is a cause which in a natural and continuous

sequence produces a person’s [injury] [damage], and is a cause without

which the [injury] [damage] would not have occurred, and one which a

reasonable and prudent person could have foreseen would probably

produce such [injury] [damage] or some similar injurious result.25

There may be more than one proximate cause of [an injury]

[damage]. Therefore, the plaintiff need not prove that (state name of

employee)’s incompetence was the sole proximate cause of the plaintiff’s

[injury] [damage]. The plaintiff must prove only that (state name of

employee)’s incompetence was a proximate cause.

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find by the greater weight of the evidence that

the employee committed a [negligent] [wrongful] act by (describe act);

that the employer owed the plaintiff a duty of care [and that there was a

nexus between employment relationship and the plaintiff’s injury]; that

(state name of employee) was incompetent; that, prior to the (state

name of employee)’s act resulting in [injury] [damage] to the plaintiff,

the employer had either actual or constructive notice of this

incompetence; and that this incompetence was a proximate cause of the

plaintiff’s [injury] [damage], then it would be your duty to answer this

issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.