DEFENDANT’ CLOTHING STORE’S EMPLOYEE ALLEGEDLY ATTEMPTED TO RECORD PLAINTIFF IN A CHANGING ROOM; THE NEGLIGENT HIRING CAUSE OF ACTION, BASED ON THE ALLEGATION THE STORE DID NOT CONDUCT A BACKGROUND CHECK BEFORE HIRING THE EMPLOYEE, SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant clothing store (Gap) was entitled to summary judgment dismissing the negligent-hiring-supervision complaint. Plaintiff alleged a store employee, Medel, attempted to record her on a cell phone as she was changing in a fitting room. The negligent hiring cause of action alleged Gap did not do a background check before hiring Medel, which was alleged to have been in violation of store policy:

The Supreme Court erred in denying those branches of the store defendants’ motion which were for summary judgment dismissing the causes of action alleging negligent hiring, training, supervision, and retention insofar as asserted against them. “‘[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … . Here, the submissions of the store defendants in support of their motion demonstrated, prima facie, that they did not have notice of any propensity of Medel to commit misconduct … .

In opposition, the plaintiff failed to raise a triable issue of fact as to whether Gap or Old Navy knew or should have known that Medel had a propensity to commit misconduct … . The plaintiff’s contention, via the affidavit of her expert, that neither Gap nor Old Navy appeared to have conducted a background check prior to hiring Medel, as was their apparent internal policy before hiring any employees, is without merit. “There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Moreover, the plaintiff failed to submit any evidence that a background check of Medel would have revealed a propensity to commit misconduct … . Hashimi v Gap, Inc., 2024 NY Slip Op 05961, Second Dept 11-27-24

Practice Point: A negligent hiring cause of action based on the allegation the employer did not conduct a background check, without more, will not survive a motion to dismiss. Plaintiff must demonstrate the employer knew of facts which should have triggered a background check.