Many food service establishments offer delivery services to their customers. Although this convenience provides the opportunity to increase revenues, it may also be accompanied by the unwanted consequence of increasing liability exposure. By placing delivery drivers on the road to advance a specific business interest, food service establishments move beyond the typical, hospitality-based liability exposures, and move into the realm of exposures ordinarily found in fleet-based industries.

When analyzing potential liabilities that may surface during the operation of a specific business or industry, proprietors routinely focus on what must be done to protect or safeguard their patrons. After all, those are the individuals who are paying for the goods or services being provided.

However, in the context of delivery services, the protection of a new class of individuals must be considered: members of the public who are sharing the road with delivery drivers. Once a delivery driver leaves the establishment to make a delivery, the number of individuals who may suffer harm, and consequently create a liability, increases significantly beyond those who walk in the door to order a meal or have a drink.

Despite the fact that these individuals may not have a business relationship with a specific food service establishment, they may nevertheless be negatively impacted by an establishment’s decision to offer delivery services. The most likely scenario in which a food service establishment’s duty to protect those sharing the road with their delivery drivers will be tested is when the delivery driver causes an automobile accident resulting in bodily injury or property damage to a third party.

In such a case, the food service establishment employing the delivery driver will most likely be viewed as a source, if not the source, from which the injured driver will seek compensation. It is not uncommon for all parties linked to an incident to be sued, and since the food service establishment will likely be viewed as the “deep pocket,” its inclusion in any resulting litigation is virtually guaranteed.

Aside from being held vicariously, or indirectly, liable for the damage or injury caused by a delivery driver by virtue of the relationship between the food service establishment and the delivery driver, a food service establishment may be held responsible under two additional theories of liability: negligent hiring and negligent retention.

These two causes of action are closely related in that they both hold an employer liable for failing to take appropriate steps to protect third parties from injury caused by the employer’s employees. The rationale underlying these causes of action is the belief that businesses dealing with the public are bound to use reasonable care to select employees competent and fit for the work assigned to them, and to refrain from retaining the services of an unfit employee.

Subject to jurisdictional variations in common law, negligent hiring typically occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee’s unfitness for a particular job function. Negligent retention, on the other hand, typically occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicate his or her unfitness for continued performance of a particular job function.

The main difference between the two causes of action is the point at which an employer is required to take a course of action designed to protect those who may come into contact with the employee. In the negligent hiring context, the employer commits the actionable conduct by hiring the person in the first instance. In the negligent retention context, the employer’s breach of duty takes the form of failing to appropriately adjust the employee’s job functions, such as termination or job reassignment.

Thus, these causes of action typically have two fundamental requirements. The first involves the knowledge of the employer that the employee is dangerous or otherwise unfit for the assigned task. Liability will attach in cases where the employer knew or had reason to know of the particular unfitness, incompetence, or dangerous attributes of the employee, and thus could reasonably have foreseen that such attributes created a risk of harm to other persons.

The second requirement is that through the negligence of the employer in hiring or retaining the employee, the employee’s unfitness, incompetence, or dangerous attributes proximately cause injury to another person.

Consider a situation in which a food service establishment discovers that one of its delivery drivers was ticketed for reckless driving while off-duty. Upon learning of the ticket, the food service establishment reviews the employee’s driving record and discovers six speeding and reckless driving citations issued against the delivery driver within the past year. Is this food service establishment at risk of being held liable for negligent hiring or negligent retention?

Yes. Under these facts, the food service establishment may actually be held liable under both theories of liability if the employee injures someone while on a delivery. The employee’s driving record probably should have excluded him as a candidate for the position in the first instance. Additionally, although the food service establishment may be considered lucky that no such accident has occurred to date, having now learned of the employee’s driving record, the establishment should seriously consider either terminating the driver or transfer him to a non-delivery position; otherwise, a negligent retention claim is likely in the event of an injury caused by the delivery driver.

So how does a food service establishment take precautions against liability for negligent hiring or negligent retention? Although appropriate precautions vary depending on the job position at issue, in the context of delivery drivers, the most effective method of preventing such claims is to review all applicants’ driving records prior to their being hired. Those having multiple violations, or even a single serious violation, should probably be rejected. Routine follow-up reviews of driving records should also be performed on a regular basis to ensure the continued absence of traffic infractions.

Also, it is important to remember that a food service establishment will be judged not only by what it did know, but also by what it should have known. Thus, if something were to occur that would make a reasonable person question the continued qualification of a delivery driver, then the food service establishment must investigate the situation to make sure the driver remains qualified to perform in a delivery capacity.

Although minimum safe-driver requirements may vary among establishments for a variety of reasons, it is unlikely that a food service establishment will be able to claim it made an adequate inquiry into a delivery driver’s background if it failed to make any inquiry whatsoever. Reviewing all delivery drivers’ driving records should be a mandatory step in the hiring process and throughout employment.

Given the frequency of automobile accidents, as well as the potential for significant and severe damage or injury, a food service establishment’s potential liability to those sharing the roadways with delivery drivers cannot be overlooked. From a risk management standpoint, these two theories of liability demand vigilance when deciding who to hire and who to keep. A failure in this respect can quickly eat up any revenues generated by delivery services.