Perry v. Asphalt & Concrete Services, Inc.

GREENE, J. In the instant case we are asked to address whether evidence of insurance or lack of insurance is admissible to establish a negligent hiring claim. At the core of this case is whether the admission of this evidence likely influenced the jury’s determination of liability for Perry’s injuries. Petitioner, Moran Perry (“Perry”) filed suit against Respondent, Asphalt Concrete Services, Inc. (“ACS”), Higher Power Trucking, LLC (“Higher Power”) and William Johnson, II (“Johnson”) for injuries he suffered when he was struck by a dump truck owned by Higher Power and operated by Johnson. The Circuit Court for Prince George’s County allowed into evidence witness testimony regarding Johnson’s lack of liability insurance coverage at the time of the accident.

We conclude that this was legal error. Evidence of lack of insurance coverage had no causal relationship to the injuries suffered by Perry and was thus irrelevant to both the claims of negligent hiring and ordinary negligence. FACTUAL AND PROCEDURAL BACKGROUND On April 28, 2009, Perry was crossing the intersection of Opossumtown Pike and Thomas Johnson Drive in Frederick, Maryland when he was struck by a 2007 Kenworth dump truck operated by Johnson, and owned by Higher Power. As a result of the accident, Perry suffered head trauma and rib fractures.

ACS had hired Higher Power to haul asphalt and stone to St. John’s Regional Catholic Church, where ACS was paving a children’s play pad. A preliminary investigation by Officer Joseph Palkovic revealed that neither Johnson nor Higher Power had liability insurance covering the truck because of a lapse in payment on the insurance policy. 1 ³⁷ On April 11, 2012, Perry filed his initial complaint in the Circuit Court for Prince George’s County. Perry alleged negligence against Higher Power, Johnson, and ACS. 2 He also alleged that ACS was negligent in its hiring and supervision of Higher Power. After the completion of discovery, ACS filed a Motion for Summary Judgment on August 30, 2013 contending there was no dispute that Johnson and ACS did not have an employer-employee relationship.

ACS also contended that even if it should have known of Johnson’s license and insurance status, this was not the proximate cause of the accident. 3 The trial court denied ACS’s Motion for Summary Judgment. On September 20, 2013, ACS filed a motion in limine seeking to exclude evidence that Johnson had a suspended license and that the truck was uninsured at the time of the accident. With respect to lack of insurance, ACS argued that it was inadmissible because “[liability insurance, based on [Maryland Rule] 5-411, generally speaking can’t be admitted [ ] on the issue of proximate cause of an accident or negligence.” The court decided to reserve its ruling on this motion until it had “more of a factual basis,” indicating that if the evidence of insurance came in, it would be “strictly [for] the limited purpose of the negligent hiring and whether a reasonable hirer would have determined that and acted accordingly.” On September 27, 2013, Perry filed a “Motion for Leave to File First Amended Complaint” to reflect that Higher Power “was not in good standing according to the publicly available ³⁸ records of the Maryland State Department of Assessments and Taxation at the time of the accident.” Thus, Perry sought to dismiss Higher Power as a separately named defendant because Higher Power “was simply a trade name under which [Johnson] was unlawfully operating his dump truck business.” The proposed first amended complaint alleged the same counts of negligence and negligent hiring but substituted Johnson for Higher Power in the negligent hiring count. The court granted Perry’s motion. 4 The first amended complaint contained the following assertions: COUNT I (Negligence — All Defendants) * * $ 11.

Johnson, as the operator of the truck which struck Perry, at all times material to this Complaint, was the agent, servant and/or employee of ACS, acting at the direction and control of ACS and for the financial benefit of ACS. As such, ACS and Johnson owed duties of care to Perry and members of the public at large to lawfully operate the truck in a safe and reasonable manner. 12. On or about April 28, 2009, ACS and Johnson breached the duties of care owed to Perry by (1) failing to operate the vehicle in a reasonably safe manner; (2) failing to travel at a safe speed; (3) failing to stop or avoid Perry while he was a pedestrian; (4) operating the vehicle in violation of Maryland law regarding registration, licensure and insurance; and (5) being otherwise careless while operating his vehicle. 13. As a result of ACS’s and Johnson’s breaches of the duties of care owed to Perry, he sustained substantial damages. $ H* ³⁹ COUNT II (Negligent Hire and Supervision — ACS) 15.

At all times material to this Complaint, ACS hired Johnson to act for its financial benefit and Johnson was subject to ACS’s direction and control. As such, ACS owed Perry and members of the public at large [a duty] to take reasonable measures, both at the time it hired Johnson and throughout its employment of Johnson, to ensure that Johnson conducted himself in [a] lawful and prudent manner while operating vehicles on behalf of ACS. Those duties include, but are not limited to, ACS’s duty to make sure that Johnson was a properly licensed driver, operating a lawfully registered and insured vehicle. 16. On or about April 28, 2009, ACS breached the duties of care it owed to Perry by employing Johnson, who was not a properly licensed driver and was unlawfully operating an unregistered and uninsured dump truck which struck Perry. 17.

As a result of ACS’s breaches of the duties of care owed to Perry, he sustained substantial damages. * * * Trial began on October 7, 2013. Perry was the first witness. He testified about the extent of his injuries, the effect the injuries had on his everyday activities, and his medical treatment following the accident. After Perry’s testimony, in a conversation with the court that occurred outside the presence of the jury, ACS repeated the argument it made in its September 20, 2013 motion in limine that evidence of lack of insurance through the testimony of Officer Joseph Palkovic should not be admitted: [THE COURT]: Well, one of the problems I have had in thinking this through is this.

I think part of what you said is a hundred percent correct because really before the jury can reach a verdict on the negligent hiring they first have to reach a verdict on the negligence. If the jury finds [Johnson] was not negligent in the operation of that vehicle then obviously .... how could there be a negligent hiring. But ⁴⁰ the two are being tried together.... So that’s the issue I have is that I think it’s relevant to the hiring count, the negligent hiring count, but not particularly to the negligence. [DEFENSE COUNSEL]: May I?

Your Honor, you’re way ahead. The issue first is whether or not he’s our employee or an independent contractor. [THE COURT]: Well, yeah, that’s of course the big issue. [DEFENSE COUNSEL]: That’s the prime — yeah, that’s the huge issue. And if we get in evidence through a police officer that says this guy was uninsured, the bell’s rung, the prejudice is done, and we’ve got a mistrial on our hands.... [THE COURT]: Well, no you don’t get — you wouldn’t get a mistrial granted because that’s what I was just about to say. I mean there might be a curative instruction right now....

I mean it’s only admissible against [ACS] — if they find that Johnson, II was an agent or an employee, only then is it admissible for the negligent hiring. [DEFENSE COUNSEL]: Right. But there’s no basis— there’s no foundation for that to be introduced at this point. [THE COURT]: What do you mean? [DEFENSE COUNSEL]: There’s no evidence that he was our employee. So the jury’s going to hear it and assume that — you know, it was introduced that he’s our driver and— [THE COURT]: Well, I assume they’ll tie it up, that there will be evidence that it (sic) was the employee. [DEFENSE COUNSEL]: I mean — Your Honor? [THE COURT]: I understand you say he’s not, but their evidence — because they say he is.... I mean the rule or the principle exists to prevent the jury from knowing that there is insurance on the theory that it would encourage — so what is the point of not having insurance.... [Perry is] trying to get in the opposite[,] that there was no insurance. [DEFENSE COUNSEL:]: Right.

In the effort to show that we are the insured party____Which is totally inadmis ⁴¹ sible____the implication is that if [Johnson] doesn’t that we do. [THE COURT]: Well, no that’s ... [t]o say someone didn’t have it doesn’t mean to say everyone else has it____That’s not a logical inference. [DEFENSE COUNSEL]: In this case he [Johnson] actually did have a policy of insurance. That’s I guess the big issue. There was a policy of insurance. He did have one through Progressive, and it covered this accident.

It just simply lapsed for nonpayment a month before. What does the fact that he — the insurance lapsed for nonpayment have to do with any issue in this case? [THE COURT]: When was he hired to do this? [PLAINTIFF’S COUNSEL]: This particular job? Two weeks before April 28th. They had an ongoing relationship. [THE COURT]: So a check would have revealed the insurance had lapsed. [DEFENSE COUNSEL]: Wait a minute.

How would a check reveal that his insurance had lapsed? To us? I can’t check your insurance to find out whether or not it’s valid. [THE COURT]: Well, you can ask me. Show me your insurance. [DEFENSE COUNSEL]: And he did.

He gave us the policy and said it was valid. [PLAINTIFF’S COUNSEL]: Well, no, he never provided any proof of insurance at all until after the accident. And that’s the testimony from the ACS employees. And that’s what ACS’s file indicates. And also, what we’re doing here is ... establishing it right through the ACS employees’ testimony that, look, hey, when we hire a driver we check two things: he’s got a valid license and he’s got insurance [ ] And what I’m trying to demonstrate is they violated their own policies when they hired this guy because he didn’t produce any proof of insurance____ The court decided that Perry should call ACS’s employees to establish a foundation for an employment relationship before ⁴² it would rule on the admissibility of the evidence of lack of insurance “[b]ecause there’s too many factual disputes here.” Burt Maggio (“Maggio”), President of ACS at the time of the accident, was next to testify.

Perry produced a fax cover sheet dated April 3, 2009 and asked Maggio to read a message on the sheet. Upon ACS’s objection, the parties approached the bench and the following colloquy ensued: [DEFENSE COUNSEL]: It was identified. I understand, but it wasn’t moved into evidence, so I didn’t want him reading from it. But the more important thing is, the issue as I understand what they’re trying to prove is the fact that Higher Power didn’t have liability insurance.

This demonstrates that there’s (unintelligible) to produce a W-9. And a W-9 is a certificate of liability insurance. [THE COURT]: All right. I’m missing something. [DEFENSE COUNSEL]: There’s no duty to require that of an independent contractor. [THE COURT]: Well, the issue is — the date here is April 3rd? [DEFENSE COUNSEL]: Right. [THE COURT]: When was the accident? [PLAINTIFF’S COUNSEL]: April 28th. And this was the second request.

The original request was on March 6th, and then we can show all the job tickets of them working with this (unintelligible). [THE COURT]: Why were they requesting this? [DEFENSE COUNSEL]: That was part of their policy to request it ____ [w]hether we request it or not, it is a requirement in Maryland — it’s the law that [a] trucking company has, one, liability insurance, and two, uses licensed drivers. We’re not required to enforce that law. [THE COURT]: All right. I’m going to overrule your objection. Maggio read the message on the fax cover sheet to the jury in open court: “Hi.

On March 11th, I sent you a request for a revised W-9 and certifícate of liability insurance. I still have ⁴³ not received either of these from you. Please send them to us ASAP. Thanks, Samantha.” 5 Maggio stated that prior to using a truck operator on a project, ACS would request the truck operator provide, among other things, a certificate of liability insurance because the State of Maryland requires that vehicles be insured and “to make sure that they [the truck operators] had insurance.” Maggio was then asked to read into the record some handwritten notes contained in the April 3 fax cover sheet: “Higher Power.

Still have not received anything from them. Second request. I called and LM [left message] too.” He further stated that ACS required proof of insurance because some of their customers required them to show proof of insurance. 6 Next, Maggio testified to the nature of ACS’s dealings with Higher Power. Based on how many trucks it needed for a project and how many hours it needed the trucks to operate, an ACS dispatcher would call various hauling companies to determine if they were available.

ACS compensated Higher Power on an hourly basis. According to Maggio, a truck operator’s “clock starts” when he or she picks up the first load from the materials supplier and heads to the job site. He pointed out that the only instruction ACS would give to truck operators was where to dump the material after they arrived at the job site. A truck operator would be free to go if the load dropped off satisfied the requirements of a project, otherwise, an ACS dispatcher or superintendent would ask them to go back to the supplier to pick up another load.

Further, ACS does not dictate the route a truck operator uses to get to a site. Truck operators had the discretion to go to McDonald’s for lunch, take a cigarette break, or do another job prior to completing ACS’s job. Maggio also stated that ⁴⁴ ACS reserved the right to dock a truck operator’s hourly pay if it felt the operator took too long to complete a job. 7 On cross-examination, Maggio stated that in April 2009, ACS had fifteen employees and that Johnson was not an employee, but instead worked for Higher Power. He stated that ACS employees received a salary, health care benefits, 401 (k) participation, paid holidays, and other perks such as free driveway repairs.

Johnson did not receive any of these benefits from ACS. After Maggio’s testimony, Perry made a request to call Officer Joseph Palkovic as the next witness and the following exchange occurred outside the presence of the jury: [DEFENSE COUNSEL]: I mean, Your Honor, we still have the same issue with the insurance.... [THE COURT]: Well, you don’t have the same foundation issue. [DEFENSE COUNSEL]: In terms of employment? Is that what— [THE COURT]: Well, I mean, you don’t think there’s enough information to generate a genuine jury issue as to that [the existence of an employment relationship]? [DEFENSE COUNSEL]: No, Your Honor. I do disagree that there is enough information____ Obviously we noted our objection[,] so that’s obviously going to be subject to your ruling [ ].

The court, finding that there was now enough evidence to establish a foundation as to ACS and Johnson’s employment relationship, and over ACS’s objection, granted Perry’s request. The jury returned to the courtroom. Officer Palkovic testified that he responded to the scene of the accident on April 28, 2009, where Johnson identified ⁴⁵ himself as the driver who struck the person in the intersection. He stated that Johnson produced evidence of insurance.

Over ACS’s objection, the court allowed Officer Palkovic to testify that a further investigation revealed that the insurance policy on the truck Johnson drove was not valid due to a lapse in payment. On cross-examination, Officer Palkovic testified that he determined Higher Power was the owner of the truck. Next, Perry called Blake Wood, project manager for ACS at the time of the accident. Mr. Wood stated that he requested Johnson’s certificate of insurance and driver’s license, and expected that the office manager would notify him if the paperwork was not received.

He elaborated that he would not have hired Johnson without a certifícate of insurance because it would be illegal and insurance is required. Prior to resting his case, Perry called additional witnesses to testify on the subject of insurance. First, he called Samantha Mentzer, an ACS employee who worked in the front office at the time of the accident. She testified that her handwriting on the fax cover sheet introduced during Maggio’s testimony read, “Higher Power, still have not received anything from them.

Second request. I called and ... left message too.” Second, Perry called Diane Moses, a claims specialist with Progressive Insurance Company. 8 The court overruled ACS’s objections, and allowed Moses to testify that Higher Power was listed as the insured party on the certificate of insurance providing comprehensive coverage for the 2007 Kenworth truck. She elaborated that this policy did not provide liability coverage and had been canceled on March 14, 2009 for nonpayment. Based on her review of the insurance file, Progressive did not provide ACS with documentation regarding the policy prior to the date of the accident.

Progressive also did not send documentation to ACS regarding the policy’s lapse on March 14. ⁴⁶ After Perry rested his case and while the jury was excused from the courtroom, ACS moved that Perry’s requested jury instruction regarding the requirement of liability insurance 9 be stricken. ACS’s attorney explained that “we shouldn’t be even discussing liability insurance because it’s not relevant to the issue of whether or not ... Mr. Johnson was negligent.” The court then called the jury back into the courtroom to hear closing arguments. The court gave the jury, in pertinent part, the following instructions regarding the law, effectively overruling ACS’s request to strike Perry’s proposed jury instruction: The violation of a statute which is a cause of plaintiffs injuries or damages is evidence of negligence.

I’m going to read you some motor vehicle statutes that if you find [they] were violated and the violation was the cause of the injuries, it is evidence of negligence.... Motor vehicles must be covered by a liability insurance policy which provides for the applicable amount of coverage required by Maryland law. A person who knows or has reason to know that a motor vehicle is not covered by a liability insurance policy as required may not drive the vehicle, or if he is the owner of the vehicle knowingly permit another person to drive it. All right, negligence is deemed something that a person using reasonable care would not do, or not doing something that a person using reasonable care would do.

Reasonable care means that caution (indiscernible) skill a reasonable person would use under similar circumstances. An employer has a duty not to employ any person who poses an unreasonable risk to other persons who would foreseeably come into contact with that employee because of the employment relationship. An employer who breaches this duty is responsible for any foreseeable injuries or damages caused by the conduct or actions of any such employee. ⁴⁷ For the plaintiff to recover damages, the defendant’s negligence must be a cause of the plaintiffs injury. $ $ All right, in the event that you find for the plaintiff on the issue of liability, then you must go on to consider the question of damages. (emphasis added).

The jury returned a verdict in favor of Perry. The verdict sheet indicated that the jury found: (1) Johnson was the agent, servant, and/or employee of ACS; (2) ACS was negligent in its hiring of Johnson; (3) Johnson was negligent in failing to properly operate his vehicle on April 28, 2009, and that his negligence was a proximate cause of the injuries to Perry; and (4) Perry was not contributorily negligent. It awarded Perry $29,500 for past medical expenses and $500,000 for pain and suffering, physical impairment, diminished quality of life, and inconveniences in the past and future. On October 22, 2013, ACS filed a “Motion for Judgment Notwithstanding the Verdict or, in the alternative, a Motion for New Trial.” The trial court denied this motion on November 7, 2013.

ACS appealed to the Court of Special Appeals, which, in a reported opinion, reversed the judgment entered in favor of Perry. 10 The intermediate appellate court concluded that “[bjecause there was no causal link shown between Mr. Johnson’s lack of insurance and the accident, [ ] lack of insurance was not relevant to the claim of negligent hiring, ⁴⁸ and the court erred in admitting it.” Asphalt & Concrete Servs., Inc. v. Perry, 221 Md.App. 235, 266 , 108 A.3d 558, 576 (2015). On April 17, 2015, this Court granted a writ of certiorari, Perry v. Asphalt & Concrete Servs., 442 Md. 515 , 113 A.3d 624 (2015), to answer the following question: Did the trial court commit an abuse of discretion by admitting the evidence of insurance? As explained below, we shall hold that, for the purposes of the instant case, evidence of lack of insurance coverage was inadmissible because it was not the proximate cause of the complaining party’s injuries. Accordingly, we shall affirm the judgment of the Court of Special Appeals for the reasons explained in this opinion.

STANDARD OF REVIEW Our standard of review on the admissibility of evidence depends on whether the “ruling under review was based on a discretionary weighing of relevance in relation to other factors or on a pure conclusion of law.” Parker v. State, 408 Md. 428, 437 , 970 A.2d 320, 325 (2009) (quoting J.L. Matthews, Inc. v. Md.-Nat'l Capital Park & Planning Comm’n, 368 Md. 71, 92 , 792 A.2d 288, 300 (2002)). Generally, “whether a particular item of evidence should be admitted or excluded is committed to the considerable and sound discretion of the trial court” and reviewed under an abuse of discretion standard. Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594, 619 , 17 A.3d 676, 691 (2011) (internal quotation marks omitted). However, we determine whether evidence is relevant as a matter of law.

State v. Simms, 420 Md. 705, 725 , 25 A.3d 144, 156 (2011). The de novo standard of review applies “[w]hen the trial judge’s ruling involves a legal question.” Parker, 408 Md. at 437 , 970 A.2d at 325 . Although trial judges have wide discretion “in weighing relevancy in light of unfairness or efficiency considerations, trial judges do not have discretion to admit irrelevant evidence.” Simms, 420 Md. at 724 , 25 A.3d at 155 . ⁴⁹ Even where there is error, this Court will not reverse a lower court’s judgment for harmless error. Crane v. Dunn, 382 Md. 83, 91 , 854 A.2d 1180, 1185 (2004).

Rather, the complaining party must demonstrate that the error was prejudicial, or in other words, “the error was likely to have affected the verdict below.” Id. “Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice.” Brown v. Daniel Realty Co., 409 Md. 565, 584 , 976 A.2d 300, 311 (2009) (quoting Flores v. Bell, 398 Md. 27, 34 , 919 A.2d 716, 720 (2007)). In these circumstances, we have consistently stated that the appellate inquiry focuses on “not the possibility, but the probability, of prejudice.” Crane, 382 Md. at 91 , 854 A.2d at 1185 (citing State of Md. Deposit Ins. Fund Corp. v. Billman, 321 Md. 3, 17 , 580 A.2d 1044, 1051 (1990)). DISCUSSION Neither party disputes the trial court’s ruling that the evidence of lack of insurance was not relevant to the claim of ordinary negligence.

Perry claims that the evidence of Johnson’s lack of insurance demonstrates it was more likely than not that ACS violated its duty to use reasonable care in hiring Johnson because it knew or should have known of Johnson’s inability to lawfully operate a dump truck. In response, ACS contends that admission of this evidence is contrary to Maryland Rule 5-411 which prohibits the admission of evidence of insurance to prove fault or liability and is irrelevant to the claim of negligent hiring. We shall discuss the admissibility of evidence of insurance generally and as it pertains to a party’s liability for negligent hiring. Relevance of Liability Insurance Generally Under Maryland Rule 5-411, “[ejvidence that a person was or was not insured against liability is not admissible upon the issue [of] whether the person acted negligently or otherwise wrongfully.” Evidence of liability insurance may, however, be admissible if “offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a wit ⁵⁰ ness.” Md. Rule 5-411.

Derived from Federal Rule of Evidence 411, Rule 54:11 is designed to prevent the undue prejudice that may result when liability insurance is admitted because “the inference of fault from the fact of insurance coverage is a tenuous one, as is its converse.” Fed. R. Evid. 411 Notes of Advisory Committee. This rationale is consistent with the general framework of Maryland Rules 54102 and 5-403 which state, respectively, that “[ejvidence that is not relevant is not admissible” and “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” In other words, when evidence of insurance is being offered for a purpose not prohibited by Rule 5-411, the court has broad discretion to admit or exclude evidence under the general principles of relevancy and Rule 54:03. 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 411.02 (Mark S. Brodin, ed., Matthew Bender 2d ed. 1997). Establishing Liability for Negligent Hiring An important issue at trial was determining the relationship between Johnson and ACS: was Johnson (1) an agent, servant, and/or employee of ACS (i.e., in an employment relationship where ACS was the employer) or (2) an independent contractor? The type of relationship is significant, because it would impact any determination of liability.

Under the doctrine of respondeat-superior, an employer is vicariously liable for the acts of its employee, within the scope of employment, even if the employer does not commit any negligent acts. 11 See Barclay v. Briscoe, 427 Md. 270, 282-83 , 47 A.3d 560, 567-68 (2012). An employment relationship exists when the servant is subject to the master’s control. Globe Indem. Co. v. Victill Corp., 208 Md. 573, 581 , 119 A.2d 423, 427 (1956).

Contrast the employer relationship with that ⁵¹ of an independent contractor: “[pjersons who render service but retain control over the manner of doing it are not servants,” but independent contractors. Id. When one engages an independent contractor, one “is not responsible for incidental negligence while such agent is conducting the authorized transaction.” Gallagher’s Estate v. Battle, 209 Md. 592, 602 , 122 A.2d 93, 98 (1956). There are exceptions, however, to the general rule that one who hires an independent contractor is ordinarily not liable for that contractor’s negligence.

For example, an employer is liable for the acts of an independent contractor under the theory of negligent hiring if the harm is caused by “some quality in the contractor which made it negligent for the employer to entrust the work to him.” Restatement (Second) of Torts § 411 cmt. b (Am. Law Inst. 1965). At trial, the jury found Johnson to be the agent, servant and/or employee of ACS. Therefore, even if Perry failed to prove the negligent hiring count, ACS was liable under the doctrine of respondeat-superior.

The trial court found there was enough evidence presented for the jury to determine the type of employment relationship that existed between Johnson and ACS. As we will later discuss, it is likely that the admission of the evidence of lack of insurance impacted the jury’s verdict on this issue and as a result, the determination of liability. To determine whether evidence is relevant to a claim of negligent hiring, we must analyze the elements of the claim. For a cause of action based in negligence, such as negligent hiring, “a plaintiff must prove the existence of a duty owed by a defendant to him (or to a class of which he is a part), a breach of that duty, a legally cognizable causal relationship between breach of duty and the harm suffered, and damages.” Cramer v. Housing Opportunities Comm’n of Montgomery Cty., 304 Md. 705, 712 , 501 A.2d 35, 39 (1985).

One is negligent if he or she breaches a duty he or she owes to another. “[T]hat negligence is actionablef, however,] only if it is a proximate cause of the damage.” Cramer , 304 Md. at ⁵² 712-13, 501 A.2d at 39 . Specifically, to establish liability in a negligent hiring claim, “the plaintiff must prove two links