Florida Torts Vicarious Liability

1
Florida TortsVicarious Liability

• Liability for the negligence of another
• Liability based on relational analysis
• A hybrid of negligence and strict liability

2
Basic Rule

• A person or other legal entity is subject to
  liability for the negligence of another person,
  who is himself negligent, based upon the
  relationship between the wrongdoer and that
  person or entity
• A form of strict liability Strict imputing of
  fault based on relationship, rather than finding
  fault

3
Illustration of Distinction between Vicarious
Liability and Negligence

• Under vicarious liability an employer is subject
  to liability for the negligence of its employee
  within the course of employment (where that
  negligent act or omission is the proximate cause
  of injury to a third person) because of the
  employer-employee relationship even though the
  employer is not at fault
• Under negligence theory, the plaintiff would be
  required to plead and prove that the employer was
  itself negligent, e.g., the negligent hiring or
  retention of the employee

4
Policy

• Liability for the injured partys loss is
  properly shifted to the person or entity whose
  enterprise was benefited by the relationship, and
  created the occasion for the wrongdoers act or
  omission

5
Negligence Required

• Vicarious liability must be based on a finding of
  negligence of an actor e.g., an employee with
  whom the superior e.g., his employer has a
  legally recognized relationship
• Vicarious liability not imposed where
• Subordinate actor is found not to be negligent
• Subordinate actor was privileged
• Subordinate actor is immune from private tort
  liability

6
Recognized Relationships Subject to Theory

• Respondeat Superior
• Employer-employee
• Principal-agent
• Employer Independent contractor, only where
• Non-delegable duty
• Contractual obligation
• Abnormally dangerous activity
• Statutory duty
• Activity employer knows or has reason to know
  contractor will not be able to satisfactorily
  perform

7
Recognized Relationships(continued)

• Members of a partnership, for the torts of a
  fellow partner committed in the ordinary course
  of the partnership's business or with authority
  of copartners (See 620.8305(1), 620.8306(1),
  Fla. Stat.)
• Members of a joint venture for torts of a joint
  venturer committed within the scope of the joint
  venture
• Parents, in limited circumstances, for torts of
  their children (See 741.24, Fla. Stat.)
• Owner of motor vehicles, for the negligent or
  wrongful acts or omissions of a person who
  operates the vehicle with the owner's express or
  implied permission (Owner consent rule)
• Owners of aircraft for the tortious acts or
  omissions of a person who operates the aircraft
  with the owner's express or implied consent
• Manufacturers, distributors, and retailers, for
  defective or unreasonably dangerous products

8
Liability of EmployerRespondeat Superior

• Elements of cause of action (1) employment
  relationship existed between tort-feasor and
  employer at the time the tort was committed and
  (2) the employee's negligent act or omission
  (Hargrove v. City of Cocoa Beach), or wrongful
  act, occurred within the scope of employment and
  in furtherance of the employer's interest
• Application of rule to intentional torts
  Vicarious liability is imposed only when the act
  of the employee is within the real or apparent
  scope of corporate employers business, or
  municipalitys suable function. Liability does
  not arise when the employee acts to accomplish
  some purpose of his own. If the tort is activated
  by a purpose to serve the employer, then he is
  liable. Otherwise he is not (City of Miami v.
  Simpson)
• Agent vs. Employee Employer more likely liable
  for act of agent because of employers delegation
  of authority easier to show employee acted
  outside scope of employment since employee has no
  delegated authority

9
Determination of Employment Relationship
Employee or Independent Contractor

• Court will consider
• (1) The extent of control that, by employment
  contract, the employer may exercise over the
  details of the work performed (2) Whether or
  not the one employed is engaged in a distinct
  occupation or business (3) The kind of
  occupation, with reference to whether, in the
  locality, the work is usually done under the
  direction of the employer or by a specialist
  without supervision (4) The skill required in
  the particular occupation (5) Whether the
  employer or the workman supplies the
  instrumentalities, tools, and the place of work
  for the person doing the work (6) The length of
  time for which the person is employed (7) The
  method of payment, whether by time or by job
  (8) Whether or not the work is part of the
  regular business of the employer (9) Whether or
  not the parties believe they are creating an
  employment relationship (10) Whether the
  principal is or is not in business (Kane
  Furniture v. Miranda)
• Employers right to control means and manner of
  work is most important factor and may outweigh
  absence of other factors (Issue is right to
  control, whether or not exercised, in fact, by
  employer)

10
Employee vs. Independent Contractor

• Control test Independent contractor agrees to
  produce specific results, but maintains autonomy
  and discretion in selecting the manner and method
  by which the work is to be performed
• Absence of control is suggested when
• (1) Person employed has a specialized or
  particular skill in which the employer has no
  training or experience (2) The type of work is
  customarily performed, in the local business
  community, by an independent contractor(3) The
  worker supplies the instrumentalities of work,
  e.g., his own tools, and the place of work(4)
  The length of employment is short (5) The
  worker is paid by the job instead of receiving a
  salary (6) The contract of employment
  specifies or suggests an employer-independent
  contractor relationship (Ware v. Money Plan
  Intern.)

11
Scope or course of employment

• Question of fact
• Court will consider whether
• (1) Work was of the kind the servant was
  employed to perform (2) The conduct occurred
  substantially within the hours of work and at the
  place of work (3) Act was intended, at least
  in part, to serve interests of the employer
  (motive test)
• Rejection of liability under motive rule
  illustrated in assault battery, and sexual
  harassment cases
• Employer may be subject o liability under
  negligence theory for negligent hiring or
  retention (Tallahassee Furniture v. Harrison)
• Employer ratification of act, constructive
  knowledge of wrongful nature of employees act,
  or retaining of benefits of employees act may
  subject employer to liability

12
Serving interests of employer

• Court will consider
• (1) Whether employee's act was authorized by the
  employer (Municipalitys authorization of use of
  force by police officers may support vicarious
  liability for officers use of excessive
  force)(2) Whether negligent or wrongful
  conduct deviated only slightly from the
  employment, or whether employee abandoned the
  employer's business interests(3) Whether the
  deviation from employment was to perform a
  nonessential, personal errand (4) Whether
  employer could have reasonably foreseen the
  occurrence of the tort (5) Whether employee
  returned to performance of the employer's
  business after the deviation but before the
  negligent or wrongful act
• Florida cases suggest that employer is not
  immune from liability as a matter of law where
  employees act violates employers rule however,
  employer may avoid liability where it enforces
  rule, and would not reasonably foresee employees
  act

13
Hours and place of work

• Going coming rule Exceptions
• Custom or agreement that employee travel directly
  from home to field territory, rather than
  principal place of business
• Special errand rule (even where employee is
  driving personal vehicle) test is business
  purpose, not mere relationship to work (e.g.,
  employer not subject to liability where employee
  was picking up cake to take to office)
• Owner consent rule in motor vehicle accident
  cases Use of company or agency vehicle, even
  when employee engages in foreseeable personal
  deviation (Rule applies where employee allows
  third party to operate company or agency vehicle)
• Context of employment text
• Liability imposed where employees negligent act
  or omission at company mandated event away from
  principal place of business (convention)
• Liability not imposed where employee engaged in
  social event, e.g., drinking with fellow
  convention attendees
• Liability not imposed where wrongful conduct
  takes place in personal context away from
  business-related premises

14
Independent contractors

• General rule of non-liability of employer for
  negligence of independent contractor
• Exceptions
• (1) Where employer assumes actual control over
  the method of performance, including the order in
  which the work is done, the time at which
  specific tasks are to be performed, and the
  selection of employees to complete certain
  services (Mere monitoring, e.g., for insurance
  purposes, or retention of general supervisory
  control, e.g., as to timetable, not sufficient to
  impose liability)
• (2) The agreement is for the contractor's
  performance of a non-delegable duty of the
  employer (3) The contracted work is an
  inherently dangerous activity machine, vehicle,
  or tool the use of which exposes the public to an
  extraordinary risk of harm (See also hazardous
  occupations statute, F.S. Ch 769) (exception re
  contractors own employees, unless employer fails
  to warn contractor of non-obvious danger to
  contractors employees)
• (4) The contracted work involves the use of an
  inherently dangerous instrumentality
• (5) The contract requires the independent
  contractor to act tortiously
• (6) The employer knows or should know of a
  danger on the property where the work is
  performed and fails to warn the independent
  contractor adequately of the danger

15
Primary liability for Negligence

• Negligent hiring or retention
• Negligent supervision
• Negligent entrustment

16
Negligent hiring or retention

• Action based on negligence of employer
• Common theory in intentional tort cases where
  employee acts outside course of employment
  (Tallahassee Furniture v. Harrison) contact
  between employee and third party must be
  employment-related
• Charitable entity may be subject to liability
  (Malicki v. Doe, 2002 Fla. LEXIS 434 (Fla. Mar.
  14, 2002) (Church corporation)
• Duty to investigate employees background when
  position will require employee to ensure the
  welfare and safety of third parties, the law
  imposes duty of reasonable inquiry into the
  prospective employee's history (Williams v.
  Feather Sound, Inc.)
• Presumption of reasonable care when employer
  performs statutory background check (See F.S.
  768.096)(Must be causal connection between
  failure of investigation and tort)

17
Negligent supervision

• Employer-employee (1) Employee is on premises
  that are in the employer's possession or on which
  the employee is privileged to enter only in his
  capacity as employee, or the employee is using
  the employer's chattel, and(2) Employer knows or
  has reason to know that he has the ability to
  control the employee, and knows or should know of
  the necessity and opportunity for exercising
  control
• Custodian of person posing danger to others Duty
  of custodian to exercise reasonable care based
  upon special relationship (Liability for
  nonfeasance may be limited to custodial
  relationships)
• Parent-child Liability may be imposed where the
  parent entrusts the child with an instrumentality
  which, because of the child's lack of age,
  judgment, or experience, may become a source of
  danger to others (2) where the child committing
  the tort is acting as the servant or agent of its
  parents (3) where the parent consents, directs,
  or sanctions the wrongdoing or (4) where the
  parent fails to exercise control over the minor
  child although the parent knows or with due care
  should know that injury to another is possible
  (Snow v. Nelson)

18
Negligent entrustment

• Motor vehicles Consent to use shifts burden to
  owner of vehicle to show conversion (Affirmative
  defense)
• Statutory exception to liability for long term
  leases
• Firearms
• Knew or should have known standard
• Sale to intoxicated person may be basis for
  liability