Nanny Referral Services Liability in California

Nanny referral services liability in California is something parents should think about. Few parents would bring a stranger into a home to care for their children without knowing more about the person than simply a name, address and date of birth. Background checks, and even credit reports, of prospective nannies and child care workers have become routine for parents. What happens, though, when the information provided by nanny referral services and other companies putting child care workers in touch with parents is incomplete or inaccurate? Parents concerned about the people they are hiring to care for their children should take note of a story concerning the death of an infant, and the efforts his parents are making to establish civil liability against the referral service they used to hire the nanny who killed him.

A wrongful death lawsuit filed against a popular website that matches child care workers with families has raised questions about just how dependable such agencies are when it comes to checking on the people it places in homes (See story here). The agency in question, Care.com , advertised the availability of caregivers of all types including:

• Child care
• Senior and adult care
• Home care

According to the lawsuit that seeks to establish civil liability against the nanny referral service, a nanny hired by a couple through the website to care for their 4-month-old son inflicted a head injury that from which the child died. The nanny was convicted of child abuse and sentenced to 70 years in prison in connection with the killing.

The parents claim that they relied upon the company operating the website to provide someone who was qualified for the position. Their lawsuit also allege that the background check for which they paid the company failed to disclose that the woman they ultimately hired had previously been convicted of driving while intoxicated. The parents said they would not have hired the nanny had they been made aware of the conviction.

It is possible to hold an employer responsible for the actions of an employee under California Law through the theory of vicarious liability. Someone harmed through the conduct of another person might be able to sue that person’s employer for compensation for having negligently hired, supervised or retained the worker.

Proving vicarious liability requires a party who has suffered an injury, or the family of some whose death was caused by a worker, to prove the following in order to establish liability on the part of the employer:

• The worker was unfit or was not competent to perform the work for which the person was hired;
• The employer knew or should have known of the worker’s incompetence or of the worker not being fit for the job;
• The employer knew or should have known that the worker being unfit or incompetent posed a risk to others;
• The party filing the lawsuit, or a member of the party’s family in cases where the victim died, suffered harm due to the conduct of the employee; and
• The negligent hiring, supervision or retention of the worker substantially contributed to the harm.

The parents of the child killed by the nanny might have a difficult time proving vicarious liability against a nanny referral service website that connected prospective employers with potential employees. Under California law, holding the website company liable would require proof that the website hired, supervised or retained the child care worker.

An agency that actually interviews, screens and then hires a child care worker for placement in a home as a nanny might find itself liable if the worker causes injury to a child. As the employer, a claim for damages based upon the vicarious liability of a worker might be made against it.

As tragic as the story of the infant killed by the nanny might be, it might be a case of negligent hiring, retention or supervision of a worker that would impose liability on the employer. Other theories of negligence, such as the failure of the background check to disclose a criminal conviction, might offer the parents a means of establishing liability against the referral service.

Vicarious liability and negligent hiring laws can be complex. Consulting with an attorney who is knowledgeable and skilled in the area of vicarious liability might be the best source of legal advice and guidance for anyone who has been harmed through the negligent conduct of someone whose services were obtained through a third party.