N.C.P.I.—Civil 640.43

The (state issue number) reads: “Was the plaintiff [injured]

[damaged] by the negligence2 of the defendant in [hiring] [selecting]

(state name of independent contractor) as an independent contractor?3

[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] [selecting] (state name of independent contractor) as an

independent contractor. 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]

[selecting] (state name of independent contractor), the plaintiff must

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

(state name of independent contractor) committed a [negligent]

[wrongful]6 act; 2) that the employer owed the plaintiff a legal duty of

care; 3) that (state name of independent contractor) was incompetent at

the time of the [hiring] [selection] of the (state name of independent

contractor); 4) that prior7 to the (state name of independent contractor)’s

act 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 independent contractor

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-independent

contractor’s negligent or wrongful act and need not be

resubmitted here. If for some reason the issue of the

independent contractor’s negligent or wrongful act has

not been submitted to the jury, it may be addressed in

two different ways. If the independent contractor’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 or selecting of an independent contractor 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 or selecting its independent

contractor 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 or selecting claim can

be brought against an employer based on its

independent contractor’s negligence12 or based on its

independent contractor’s intentional tortious or criminal

act.13 Where the plaintiff contends that the

independent contractor was negligent, no further

instruction on the second element is required. Where

the plaintiff contends that the independent contractor

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 independent contractor and the

plaintiff were in places where each had a right to be

when the wrongful act occurred] [whether the plaintiff

met the independent contractor, when the wrongful act

occurred, as a direct result of the independent

contractor relationship] [whether the employer received

some benefit, even if only potential or indirect, from

the meeting of the independent contractor 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 independent

contractor) was incompetent at the time of (state name of independent

contractor)’s [hiring] [selection]. This means that (state name of

independent contractor) was not fit for the work in which (state name of

independent contractor) 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

independent contractor’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 independent

contractor)]18 [or] [from prior habits of carelessness or inattention on the

part of (state name of independent contractor) in a kind of work where

careless or inattentive conduct is likely to result in injury].19 However,

any evidence tending to show, if you find that it does so show, that

(state name of independent contractor) 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 independent contractor)

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

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

independent contractor) 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 independent contractor)’s

incompetence.21 Actual notice means that prior22 to the alleged act of

(state name of independent contractor) resulting in [injury] [damage] to

the plaintiff, the employer actually knew of (state name of independent

contractor)’s incompetence.

Constructive notice means that the employer, in the exercise of

reasonable care, should have known of (state name of independent

contractor)’s incompetence prior to the alleged act of (state name of

independent contractor) resulting in [injury] [damage] to the plaintiff.23

Reasonable care is that degree of care in the hiring or selection of an

independent contractor 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 independent

contractor)’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

independent contractor)’s incompetence was the sole proximate cause of

the plaintiff’s [injury] [damage]. The plaintiff must prove only that (state

name of independent contractor)’s incompetence was a proximate cause.

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

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

that (state name of independent contractor) committed a [negligent]

[wrongful] act by (describe act); that the employer owed the plaintiff a

duty of care; that (state name of independent contractor) was

incompetent at the time of (state name of independent contractor)’s

[hiring] [selection]; that 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.