Tort law: Negligence - Negligent infliction of emotional distress, Negligence in employment and Entrustment

The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a cause of action.

Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment and vicarious liability, the concepts are distinct grounds of liability.

Negligent entrustment compared.

Negligent entrustment arises where the entrustor is held liable for negligence because they negligently provided the entrustee with a dangerous instrument, and the entrusted party caused injury to a third party with that instrument. Where such a claim is brought against an employer, the employer will be held liable if the entrustee's record was known, or would have been easily discoverable, to the employer. For example, if a bus company hires a driver who has a record of reckless driving, of which the company could have learned through a search of publicly available records, the company would be liable for the negligent entrustment of the bus to that driver, should the driver cause an accident.

Negligent entrustment differs from negligent hiring, retention, supervision, and training in two key respects.

First, negligent hiring and the related torts require the employment itself of the tortfeasor causing the injury, whereas a party can be held liable for negligent entrustment to any person.

Second, an employer can be found liable for negligent hiring even without provision of any dangerous instrument to the employee. However, where an employer hires an unqualified person to engage in the use of a dangerous instrumentality, as in the above example with the bus driver, the employer may be liable for both negligent entrustment and hiring.