Can an Owner by Held Liable for an Employee's Conduct?
In certain circumstances, yes. Screening your employees may be as important as screening your residents.

If a landlord's employee or agent commits a crime, the owner may be held liable if:

  • the employee was acting in the interests of the owner and within the scope of his employment; or
  • the owner was negligent in hiring, supervising, or training the employee.

Several cases have involved disputes over the payment of rent which escalated into physical violence. If a rental agent or property manager assaults a resident while attempting to collect rent, or in connection with an eviction proceeding, the owner can be held liable for damages. Courts apply a rule of law known as "responsible superior" which hold that employers are ultimately responsible for their employee's misconduct while on the job.

An owner generally will not be held liable if the employee's conduct goes beyond the ordinary scope of his/her employment. Owners were not held liable, for example, in stabbings and shootings.

If an employee's conduct is "so substantially different from his assigned task," then the owner will generally not be held liable. Likewise, some courts hold that an owner will not be liable for acts committed by an employee which could not legally be authorized by the owner. In one case, a manager forcibly removed a rent payment from the resident's hand. The court said that the owner could not have legally authorized that conduct and was, therefore, not liable.

Negligent Employment Practices
Many cases are based on a claim of negligent hiring, supervision, or retention of an employee. One court said if an owner hires an employee, knowing of his propensity for violence, or if he retains that person as his employee after learning the person's dangerous character, the owner cannot escape liability. In that case, an employee broke into an apartment and stabbed a resident; the court pointed out that the owner knew the employee's potential for violence. The court also noted that liability could be imposed regardless of whether he was acting within the scope of his employment.

Other cases have held owners liable for failing to investigate an employee's past criminal record or for failing to ask for and confirm references. In one case, an employee was hired to do outside maintenance work at a condominium complex; within three weeks he was given a passkey and responsibility for inside maintenance work. No background check had been done on him. After he assaulted a resident, it was discovered that he had been convicted of breaking and entering and assault with intent to commit murder and that he had spent over two years in a psychiatric ward of a hospital.

The court said that while the owner had no duty to inquire about the employee's past as long as he had only incidental contact with residents; once the employee was given access to passkeys, the owner was required to make further inquiry.

An owner can also be liable for not firing an employee. In one case, the court said that the owner could be liable for retaining a janitor who was often drunk, incompetent, and dangerous to residents. The court said that an owner can be liable for keeping an employee where there are complaints by residents and the owner knows of the employee's bad habits or violent disposition. In cases involving crimes against property, owners often are held not liable since, for example, theft or vandalism are clearly outside the scope of an employee's function. If, however, an owner negligently allows an employee access to a tenant's apartment, liability may be imposed. In one case, and owner and property manager were held liable in a case involving the theft of a tenant's jewelry for her apartment. Despite an earlier burglary, the owner had not altered his practice of permitting 12 employees, and an unknown number of carpet cleaning company employees to use master keys.

Reprinted with permission.
Northern Nevada Apartment Association
575 Forest St, Reno, NV 89509 Phone:(702) 322-6622

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