Negligent retention is a theory of direct liability against an employer. It is separate from the more familiar idea that an employer is responsible for the acts of an employee carried out within the scope of employment. This guide explains, in general terms, how Georgia law defines negligent retention and what a plaintiff must show to establish it when the employee at issue is a driver alleged to be dangerous.
The difference between vicarious liability and direct liability
Under the doctrine of respondeat superior, an employer can be held responsible for an employee’s negligence committed within the scope of employment. That is vicarious liability; it does not depend on any fault by the employer itself. Negligent retention is different. It is a claim that the employer was itself negligent, because it kept an employee on the job after learning, or after it should have learned, that the employee posed a risk of harm to others. The wrongful act is the employer’s own decision to retain the worker.
The statutory foundation
Georgia’s general rule on employer responsibility for employee selection appears in O.C.G.A. 34-7-20, which provides that an employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency. Georgia courts have built the modern negligent retention claim on this principle. The claim recognizes that an employer who continues to employ a worker known to be a danger has failed to exercise the ordinary care the statute describes.
The core elements
To establish negligent retention of a driver in Georgia, the evidence generally needs to show several things working together.
First, an employment relationship existed during the relevant period. Negligent retention concerns conduct after hiring, so the focus is on what the employer knew or learned while the worker was already employed.
Second, the employer knew or, in the exercise of ordinary care, should have known of the employee’s tendency or propensity to engage in the kind of conduct that caused the harm. Georgia courts frame this as a foreseeability requirement. General knowledge that an employee is imperfect is not enough. The knowledge must relate to a propensity to cause the specific type of harm that occurred. For a driver, this often involves a record of prior moving violations, prior crashes, license suspensions, failed drug or alcohol tests, hours-of-service problems, or other documented conduct that bears on the safety of operating a vehicle.
Third, the employer retained the employee despite that knowledge. The claim turns on the decision to keep the worker on the job, or to keep the worker in a role involving driving, after the warning signs appeared.
Fourth, the retention was a proximate cause of the plaintiff’s injury. There must be a causal connection between the employer’s failure to act on what it knew and the harm that resulted. If the dangerous propensity the employer knew about is unrelated to the way the injury actually occurred, the causal link is weaker.
Fifth, the plaintiff suffered injury and damages.
Evidence that bears on what the employer knew or should have known
Because foreseeability is central, the inquiry focuses heavily on the information available to the employer. In the context of a commercial driver, the federal safety regulations require motor carriers to maintain a driver qualification file, to obtain motor vehicle records, to investigate the driver’s background, and to monitor driving performance over time. These records, along with internal complaints, supervisor reports, post-incident reviews, and disciplinary documents, are the kind of material that shows what the employer knew. Georgia courts evaluate whether a reasonable employer, possessing that information, should have recognized the risk.
It is important that the knowledge be of a relevant propensity. A history of speeding tickets, repeated preventable collisions, or a known substance abuse problem points toward a foreseeable risk of a traffic crash. A propensity unrelated to safe driving is less likely to support the claim, because the foreseeable harm would not match the harm that occurred.
The relationship to other claims and to apportionment
Negligent retention is frequently pleaded alongside related direct-liability theories such as negligent hiring, negligent training, negligent supervision, and negligent entrustment. Each focuses on a slightly different employer decision, and the supporting facts often overlap. Negligent retention specifically targets the choice to keep a known-dangerous worker employed.
Georgia has an apportionment statute, O.C.G.A. 51-12-33, under which the factfinder may assign percentages of fault among those responsible. How a direct-liability claim against an employer interacts with apportionment and with an admission that the driver was acting within the scope of employment has been the subject of evolving Georgia case law, and the analysis can be procedurally complex. The general point is that negligent retention is a freestanding claim of employer fault that the factfinder considers in addition to any conduct by the driver.
Summary
Establishing negligent retention of a dangerous driver in Georgia depends on proof that the employer learned, or in the exercise of ordinary care should have learned, of a propensity to cause the type of harm that occurred, that the employer nevertheless kept the worker driving, and that this decision was a proximate cause of the injury. The claim rests on the ordinary-care duty described in O.C.G.A. 34-7-20 and on the foreseeability framework Georgia courts have developed around it. The decisive question in most cases is what information about the driver reached the employer and whether a reasonable employer would have acted on it.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.