SW Legal Educational Publishing

Employer Recommending Employee to Other Employers May Have Duty to Warn
Description New Mexico appeals court held that when an employer provides a recommendation for a former employee, there is a duty to warn of possible dangers posed by the employee depending on the employment situation.
Topic Employment Law
Key Words Torts; Duty of Care; Foreseeable Risk
C A S E   S U M M A R Y
Facts When Herrera worked at a county jail he was accused several times of sexually harassing female inmates and of having sex with inmates in exchange for helping them. There were investigations, reprimands, suspensions, and a demotion. Prior to another hearing about another charge, Herrera resigned and sought employment at a psychiatric hospital, where he would help monitor patients during the night shift. His former supervisor gave him an excellent letter of recommendation. Herrera was hired and soon accused of sexually assaulting a patient who sued his previous employer for misrepresenting material facts when making an employment recommendation, which placed a sexual predator in a position where he would have access to isolated female patients. The district court dismissed the suit; the assaulted patient appealed.
Decision Reversed. "We limit our discussion to the present circumstances, involving a substantial, foreseeable risk of physical harm to third parties by the employee if reasonable care is not exercised about what is said when an employer elects to make an unqualified recommendation, and we decide that employers do owe such a duty to third parties." There is negligent misrepresentation when there is a foreseeable risk of physical harm.
Citation Davis v. Board of County Commissioners of Dona Ana County, - P.2d - (1999 WL 614019, Ct. App., N.M.)

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