Apartment Slaying Example of Negligent Hiring, Supervision, and Retention of an Employee

Marcano’s case

Miya Marcano was a 19-year-old student who was studying at Valencia College in Orlando, Florida. She lived and worked at the Arden Villas, an apartment complex where she was employed in the leasing office.

Armando Caballero was also employed by Arden Villas as a maintenance worker. He was provided with a master key that allowed him to gain entry to any of the apartments in the complex. Marcano had reportedly rebuffed Caballero on multiple occasions when he made unwanted advances towards her.

Marcano was scheduled to take a flight home to her family in South Florida on Sept. 24. When she failed to take the flight, her family reported her missing. Marcano’s body was subsequently found in a garage located near the apartment complex. Caballero committed suicide before her body was discovered. It was determined that Caballero had used the master key to break into Marcano’s apartment where he attacked and killed her.

Lawsuit filed by Marcano’s family

Marcano’s family filed a wrongful death and negligent hiring and supervision lawsuit against Arden Villas and The Preiss Company, the complex’s operator. The lawsuit alleges that the complex and its operator were negligent in hiring Caballero and providing him with a master key.

According to the complaint, Caballero had a criminal history and had been the subject of past allegations of sexual harassment of women. Marcano was reportedly never informed about her co-worker’s history, and she also did not know that he had been given a master key. Marcano’s family alleged that Caballero had been stalking Marcano before breaking into her apartment and killing her.

Marcano had reportedly complained about Caballero’s behavior to other Arden Villas employees and to her parents. Despite her complaints, the manager of the Arden Villas allegedly did not take her concerns seriously and had a history of disregarding the complaints of both tenants and employees.

The lawsuit also includes Caballero’s estate as a defendant in addition to Arden Villas and The Preiss Company. The plaintiffs have requested a jury trial and are seeking damages of more than $30,000.

The Preiss Company is among the top 10 largest providers of off-campus housing for college students in the U.S.

Negligent hiring, supervision, and retention in California

Like Florida, California also recognizes causes of action for negligent hiring, supervision, and retention. Employers have a duty of care to protect their employees and the public from potentially foreseeable harm. Within the context of hiring employees, this means that employers must conduct criminal background checks to identify any convictions that directly relate to the duties of their jobs and could impact the safety of the workplace and the public.

In Marcano’s case, her killer had a criminal record, including allegations that he had previously sexually harassed other women. The combination of his criminal record and his past incidents of harassing women might mean that his stalking and attacking Marcano, whom he had also harassed, was reasonably foreseeable. By hiring him to work as a maintenance worker and providing him with a master key, Arden Villas and The Preiss Company likely engaged in negligent hiring.

Companies can also be sued for negligent supervision of employees. When an employee is given broad access with minimal supervision such as what occurred with Caballero, the employer can be found liable for negligent supervision when someone is injured or killed as a result.

A cause of action for negligent retention can also be filed when an employer fails to act to terminate an employee despite complaints about his or her dangerous conduct. In Marcano’s case, she, other employees, and tenants of the complex had all expressed concerns about Caballero’s behavior to management, including his repeated attempts to pursue Marcano. However, the manager allegedly failed to take any of their complaints seriously, disregarded them, and failed to take appropriate action to terminate Caballero’s employment.

Even though this case occurred in Florida, situations in California in which someone is harmed because of a company’s negligent hiring, supervision, or retention of an employee can also be the basis of lawsuits in California. Employers can be directly liable for the actions of their employees when they have negligently hired, supervised, or retained them when someone is seriously injured or harmed as a result.

What plaintiffs must prove in a negligent hiring, supervision, or retention case

Plaintiffs in cases filed against employers for negligent hiring, supervision, or retention of employees have the burden of proof to prove the elements by a preponderance of the evidence. This burden of proof means that they must present evidence for each element showing that it is more likely than not occurred as they have argued. The elements of a negligent hiring, supervision, or retention cause of action include the following:

• The employee was hired by the employer.
• The employee was unfit or incompetent to perform the job for which he or she was hired.
• The employer knew or should have known that the employee was unfit or incompetent, and the employee’s incompetence or unfitness placed others at particular risk of harm.
• The employee’s incompetence or unfitness caused someone else to suffer the type of particular, foreseeable harm.
• The employer’s negligence in hiring, supervising, or retaining the employee was a substantial contributing factor in the harm suffered by the plaintiff.

The plaintiff has the burden of proving each of these elements by a preponderance of the evidence. If he or she fails to prove one of the elements, the claim will not be successful.

Employment relationship

A worker does not have to be an employee of the company that hired him or her for negligent hiring, retention, or supervision liability to attach. Companies that hire independent contractors can also be liable when the contractors are incompetent or unfit and harm others. In Noble v. Sears, Roebuck & Co., 33 Cal.App.3d 654 (1973), the California Court of Appeal held that a company can be held directly liable for negligently hiring, retaining, or supervising an independent contractor.

Unfitness and risk of harm

Employers can be directly liable to third parties when the employees they hire are unfit, and their unfitness places others at particular risk of harm. In D.Z. v. Los Angeles Unified School District, 35 Cal. App. 5th 210 (2019), the court noted that the type of harm the victim suffers must be foreseeable. This means that it is of the type for which the particular employee’s unfitness creates a particular risk. For example, in Marcano’s case, the combination of Caballero’s past criminal history and incidents of sexually harassing women made him unfit to work as a maintenance worker with a master key giving him access to all of the apartments in the complex because of the particular risk he posed of sexually attacking women.

Substantial contributing factor

The employer’s negligent hiring, retention, or supervision of the employee must also have been a substantial contributing factor to the harm caused to the plaintiff. In other words, this means that the plaintiff would likely not have been harmed if the company had not hired or retained the employee or had properly supervised him or her. In Marcano’s case, if Arden Villas had decided not to hire Caballero based on his criminal record, it is unlikely he would have contacted Marcano or had been able to gain access to her apartment. If it had fired him when Marcano and others complained and taken back the master key, Marcano also might not have been attacked and killed.

Direct vs. vicarious liability

Employers can also be held vicariously liable for the negligent or wrongful actions of their employees when they are acting within the scope and course of their employment. For example, a trucking carrier can be vicariously liable when one of its employee truck drivers negligently causes a truck accident while driving on the job.

In cases like what happened with Marcano, however, Caballero’s actions likely occurred when he was acting outside of the scope and course of his job. Nothing indicates that he broke into her apartment and attacked and killed her during his regular working hours or while performing the duties of his job. This means that Arden Villas and The Preiss Company might not be vicariously liable for the harm that occurred to Marcano and her family. However, both companies will likely be directly liable to pay damages because of their failure to adequately screen him and supervise him, their failure to warn other employees and tenants, and their negligent failure to terminate him.

Talk to an experienced personal injury attorney

When an employee seriously injures or kills someone else, the employer that hired, retained, or supervised the employee might be directly liable to pay damages in some cases. If you have suffered injuries in this type of situation or have lost your loved one, you should talk to an experienced attorney at the Steven M. Sweat, Personal Injury Lawyers, APC. Call us today for a free consultation at 866.966.5240.