Negligent hiring, supervision and retention in Texas — what Werner left of it

Negligent hiring is a claim against the employer for the employer's own carelessness — putting a dangerous person in a position to cause harm, failing to supervise them, keeping them after learning what they were. It is direct liability, not vicarious, and for decades that distinction made it useful where respondeat superior was unavailable.

Werner Enterprises, Inc. v. Blake (Tex. 2025) narrowed it sharply. The court held that an employer cannot be liable on derivative or direct theories where the employee's conduct was not a proximate cause of the injury — because even a direct hiring or training claim still depends on what the employee did.

What the claim is

An employer hired, kept or failed to supervise someone who then hurt you, and the employer's own carelessness contributed to it.

Where the right comes from

Common law negligence, applied to the employer's own conduct.

What a plaintiff has to prove

1. The employer owed a duty to the plaintiff.
2. The employer was negligent in hiring, supervising, training or retaining the employee.
3. The employee's conduct proximately caused the plaintiff's injury.
4. Damages.

The third element is where Werner bites. It is not enough that the employer was careless in hiring; the employee's conduct must be a proximate cause of the harm.

The three variants

Negligent hiring — the employer failed to investigate, or hired someone whose background made the risk foreseeable.

Negligent supervision or training — the employer failed to oversee or train the employee adequately.

Negligent retention — the employer learned of the danger and kept the employee anyway. This is often the strongest of the three, because the employer's knowledge is documented.

How long you have to file

Two years, under CPRC § 16.003(a).

What has to happen before you file

Nothing.

What the claim pays

Actual damages from the underlying injury.

Exemplary damages against the employer require the employer's own gross negligence or malice, proved by clear and convincing evidence — not the employee's. CPRC § 41.005 adds a further limit for criminal acts: a court may not award exemplary damages against a defendant because of the criminal act of another, unless one of the listed exceptions applies — including that the criminal act was committed by an employee of the defendant.

No attorney's fees.

Why the claim is pleaded at all

Three reasons, and Werner affected each of them differently.

To reach an employer where respondeat superior fails — the employee was off duty, on a frolic, or acting outside the scope of employment. After Werner, the direct claim still requires the employee's conduct to be a proximate cause, so this route now depends on the same causation showing.

To reach exemplary damages against the employer. Vicarious liability alone does not support punitive damages against a corporation; direct negligence can.

To get the employer's own conduct in front of the jury — the hiring file, the prior complaints, the training records — which changes what the case looks like.

What Werner decided

Werner Enterprises, Inc. v. Blake, No. 23-0493 (Tex. June 27, 2025), reversed and rendered a judgment of roughly $90 million arising from a highway collision in an ice storm, in which another driver lost control and crossed the median into a truck's lane.

The court held the truck driver's presence and speed merely furnished the condition that made the injuries possible and were not a proximate cause. And it held that where the employee's conduct is not a proximate cause, the employer cannot be liable on derivative or direct theories — a direct negligent hiring or training claim "still hinged on" the employee's conduct.

The court expressly declined to decide the admission rule — whether an employer's admission of vicarious liability bars a direct negligence claim against it — leaving that question open.

Application by the courts of appeals is still developing.

Who can be sued

The employer.

The employee, separately, for their own negligence — and after Werner, the two claims stand or fall together on causation.

Common defenses

• Werner causation. The employee's conduct was not a proximate cause, so neither theory survives.
• No foreseeability. Nothing in the employee's background put the employer on notice.
• Adequate screening and supervision — the employer did what a reasonable employer would.
• The employee was not acting in a capacity the employer controlled.
• Proportionate responsibility under CPRC § 33.001.
• Limitations.

What people get wrong

It is no longer a way around a failed vicarious liability claim. After Werner, both theories require the employee's conduct to be a proximate cause.

A bad hiring record is not enough. The employer's carelessness must connect to conduct that caused the injury.

Exemplary damages need the employer's own fault. Corporate punitive liability is not automatic from the employee's conduct.

The admission rule is still open. Whether admitting vicarious liability defeats a direct claim remains undecided in Texas.

Where it came from

Negligent hiring developed as an answer to the limits of respondeat superior. An employer is vicariously liable only for conduct within the scope of employment, which leaves out the security guard who assaults a patron and the driver who takes a detour. Direct liability for the employer's own negligence filled that gap.

Over time the claim became a standard companion to every employer case, and in trucking litigation it became the vehicle for putting a carrier's safety record before a jury.

Werner pulled that back to a causation question. Whatever the employer did or failed to do, the employee's conduct has to be a proximate cause of the injury before either theory reaches the employer.

Common questions

How long do I have to file a negligent hiring claim in Texas?

Two years from the injury.

Can I sue the employer if the employee was off duty?

The direct claim still requires that the employee's conduct was a proximate cause of your injury. If it was not, Werner forecloses both theories.

Can I recover attorney's fees?

No.

Can I get punitive damages from the company?

Only with clear and convincing proof of the employer's own gross negligence or malice, and § 41.005 adds further limits where the harm came from a criminal act.

What did Werner change?

It held that an employer cannot be liable on derivative or direct theories where the employee's conduct was not a proximate cause, and that conduct which merely furnished the condition for an injury is not a proximate cause.

Does an employer's admission of responsibility kill the claim?

That is the admission rule, and the Texas Supreme Court expressly left it undecided in Werner.

Where these rules live

• CPRC § 16.003 — Two-year limitations period
• CPRC § 33.001 — Proportionate responsibility
• CPRC § 41.003 — Standards for recovery of exemplary damages
• CPRC § 41.005 — Harm resulting from a criminal act
• CPRC § 41.008 — Limitation on amount of recovery
• CPRC § 41.0105 — Evidence relating to amount of economic damages