Echeverry presented evidence of the Casino’s negligence under theories of negligent hiring, operational control, and authorization of unsafe work practices. We analyze each theory.
A. Negligent hiring
Echeverry presented evidence at trial that the Casino was negligent for hiring an irresponsible independent contractor. As to negligent hiring, the jury was instructed:
The hiring party breaches its duty if it knew or should have known that the independent contractor was incompetent at the time of the hiring; meaning that the hiring party knew or should have known that the contractor could not perform the job safely or competently.[1]
The parties stipulated that the Casino hired AWR in January 2017, so the relevant question is whether the Casino knew or should have known in January 2017 that AWR was incompetent. The relevant evidence includes that a bird-control company named Bird-X recommended AWR to David Stuart, Director of Business and Process Improvement for the Casino. Stuart contacted some of AWR’s references and received no negative information about AWR. The BBB, though, had given AWR an “F” rating. The Casino’s internal policies required that before beginning work, an independent contractor had to provide a certificate of insurance with a minimum amount of coverage that identified the Casino as an additional
- ↑ The district court instructed the jury on a “knew or should have known” standard. The Casino did not object at trial, but on appeal it argues that the standard under Louisiana law is actual knowledge. A panel of this court once concluded that Louisiana law on this point is ambiguous. See Dragna v. KLLM Transp. Servs., L.L.C., 638 F. App’x 314, 319 (5th Cir. 2016). Because the district court instructed the jury with a “knew or should have known” standard, and the Casino did not object, the Casino’s argument that actual knowledge is the standard was not preserved.
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