Tortious acts by workers on the job: who is responsible?

Florida courts have often grappled with tests to determine whether a given act was within the course and scope of an individual’s employment.??To that end, they have promulgated the following guidance.??

“Conduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master. The purpose of the employee's act, rather than the method of performance thereof, is said to be the important consideration.”??McGhee v. Volusia Cty., 679 So. 2d 729, 732 (Fla. 1996).??Other factors to consider include: the type of work for which the employee is employed; whether the specific action is performed substantially within the “time and space limits” of the employment; whether the action was, to some extent, activated by a purpose to serve the employer; whether the employee stepped aside from her employment to perform an act which the employer did not authorize or expect; whether there was a slight deviation or complete departure from the employment; and whether the employer could have reasonably foreseen the employee's conduct.??See Masconi v. Regueiro, 778 So. 2d 471, 472 (Fla. 3d DCA 2001) (citing?Burroughs Corp. v. American Druggists' Ins. Co.,?450 So. 2d 540, 544 (Fla. 2d DCA 1984)). Note that the?Burroughs?court held that the aforementioned factors were not intended to be “all-inclusive.”

Furthermore, “[a]n employer is liable in damages for the wrongful act of his employee that causes injury to another person, if the wrongful act is done while the employee is acting within the apparent scope of his authority as such employee to serve the interests of the employer, even though the wrongful act also constitutes a crime . . . or was not authorized by, or was forbidden by, the employer, or was not necessary or appropriate to serve the interests of the employer, unless the wrongful act of the employee was done to accomplish his own purposes, and not to serve the interests of the employer.”??Stinson v. Prevatt,?94 So. 656, 657 (Fla. 1922).[1]??An employee is not?acting?in the?scope?of?employment?if it can be found that the employee has “stepped away” from the employer's business at the time of the act in question?and?that the motive was unrelated to the employee's?duties, but rather was in furtherance of the?employee's?interests; “then, the master cannot be held liable for the servant's?act.”??Martin v. United Securities Service, Inc.,?373 So. 2d 720 (Fla. 1st DCA 1979).??

A determination of whether an act was committed within the course and scope of the employment relationship is for the jury.??Gold Coast Parking, Inc. v. Brownlow, 362 So. 2d 288 (Fla. 3d DCA 1978);?Orr v. Avon Fla. Citrus Corp., 177 So. 612, 615 (Fla. 1937).

“Sub-employees” / helpers

An employer-employee relationship may arise by implication if an employee utilizes a “subservant” or “sub-employee” to perform duties for the employer.??This may occur

"[w]here the master has entrusted the servant with a task which cannot be performed by him within a reasonable time, where the business is of such a nature as to require the assistance of others, where there is an emergency, or?where the authority to employ and use a subservant may be implied from the nature of the business or the course of trade. In these circumstances, the servant may employ a subservant to assist in the furtherance of the master's business,?even though authority to hire the subservant has not been expressly given by the master.?And under these conditions the master may be held liable for the tortious acts of the subservant, if they have been committed in the course of the employment."

Coto v. Anipecu, Inc.,?371 So. 2d 183, 184–85 (Fla. 3d DCA 1979) (citing?Jacobi v. Claude Nolan, Inc., 122 So. 2d 783, 787-788 (Fla. 1st DCA 1960)) (emphasis added).

Put more simply, “when an employee [utilizes] a helper which his employer neither directed in fact, nor could be considered from the nature of the employment to have authorized or expected the employee” to do, the employer will not be held liable for the “sub-employee’s” tortious acts.??Higgins v. Investors Acceptance Co. of Miami, 287 So. 2d 724, 726 (Fla. 3d DCA 1974).

Abandonment

The general rule in Florida is that “an employee who deviates from his employment to engage in a personal errand is not within the scope of his employment if an accident occurs?before he returns to the course he was pursuing in the interest of his employer.”??Drinnenberg v. Dep't of Transp.,?481 So. 2d 51, 52 (Fla. 2d DCA 1985).??“Marked departures” from an employee’s duties constitute an abandonment that “forecloses any liability on the part of an employer.”??Western Union Telegraph Co. v. Michel, 163 So. 86, 88-89 (Fla. 1935).??There is a general “Florida rule that?going for meals, food or drinks is a deviation from employment.”??Saudi Arabian Airlines Corp. v. Dunn, 438 So. 2d 116, 121 (Fla. 1st DCA 1983);?but see N & L Auto Parts Co. v. Doman, 111 So. 2d 270 (Fla. 1st DCA 1959).??There, the First District found that an employee was within course and scope of employment where, while on work trip out of state, he was injured while returning to his hotel room after seeing a movie and having dinner.??Id. at 272.??The court explained that, though he had deviated from his employment relationship by seeing the movie and going out to eat, he returned to the role when he arrived back at his hotel and began walking to his room as “securing lodging” was an act “necessary to his health and comfort” and, although it was a “personal” act, it was expected during a work trip and “indirectly if not directly benefit[ted] the employer.”??Id.

In cases involving allegations of vicarious liability for an employee’s negligence, the test of the employer’s liability is “whether or not the servant was acting within the apparent scope of his agency or employment when the negligence was committed. This rule also applies as to slight adviations from the master's business?if?the deviation does not amount to an abandonment.”??Orr,?177 So. at 615 (emphasis added).

However, even where an employee has deviated from the scope of their employment, and thus relieved their employer of liability for their actions during that time period, the employee can return to their employment scope by doing something that “meaningfully benefits” the employer’s interests.[2]??Kane Furniture Corp. v. Miranda, 506 So. 2d 1061 (Fla. 2d DCA 1987).??Furthermore, an employer’s subsequent approval and ratification of an act, with full knowledge of the surrounding circumstances, may give rise to liability, even where the act itself was committed outside the employment relationship.??See?Fla. Jur. 2d Agency and Employment § 311;?Reece v. Ebersbach, 152 Fla. 763 (1942).

Illustrative cases

In?Anderson v. Southern Cotton Oil Co., an employee who worked as a driver for Southern Cotton used his company vehicle to pick up his girlfriend and take her to lunch during his work hours.??74 So. 975, 978 (Fla. 1917).??His manager knew of this arrangement and did not object.??Id.??One day, while engaging in this behavior, the employee was in an accident.??Id.??In analyzing whether the company was liable, the Florida Supreme Court noted that “where without the employer's?knowledge or consent there is a deviation . . . from the direct line of the employer's business solely for the purposes of the employee or where there is a temporary abandonment of the employer's business for the employee's own purposes, and an injury was inflicted by negligent driving while the employee was returning to the sphere of the employer's business, the question as to whether the employer is liable should be submitted to the jury under appropriate instructions.”??Id.

In?Johnson v. Gulf Life Ins. Co., the Third District found that it was proper to conclude that the Defendant had “stepped away” from his employment and was engaged in a “purely social activity” at the time of the subject events.??429 So. 2d 744, 747 (Fla. 3d DCA 1983).??There, an insurance salesman who was required to call upon prospects using his own vehicle drove to a lounge to speak with the manager about a possible insurance need.??Id.??He then left the lounge, picked up three (3) friends, and drove to another lounge to socialize; while en route, he struck the plaintiff’s vehicle with his own.??Id.??In finding that he had stepped away from his employer’s business at the time, the court noted that the defendant did not discuss insurance needs with any of the three (3) friends; his conversation with the manager at the first lounge was “exceedingly brief”; he did not call on any other prospects; there was an unexplained three-hour period of time between the time he left the first lounge and the time of the accident; and he was driving in an opposite direction from his home at the time of the accident.??Id.??Thus, the court concluded he was engaged in a purely social activity and the employer was not liable for his actions.[3]??Id.

In?Nealy v. Ross, the defendant worked as a porter for an automobile dealer.??249 So. 2d 522, 523 (Fla. 3d DCA 1971).??One morning, someone arrived to return a loaner vehicle; the defendant took the car to go get a sandwich and was involved in an accident on his way back.??Id.??He did not have permission to use the car, and had been told many times over his ten (10) years of work that he was never to take a car off the premises.??Id.??Thus, the court found that he was outside the course and scope of his employment and the dealer was not liable for the defendant’s actions.??Id.

In?Maroney v. Edward A. Kelly & Sons, Inc., the plaintiff was employed as a produce delivery driver and was sent to deliver a shipment to a customer.??195 So. 2d 208, 209 (Fla. 1967).??After completing the delivery, while still driving the produce truck, he drove to a friend’s apartment and drank beer with him for two (2) hours.??Id.??During the visit, he realized he had forgotten the invoice for the delivery at the employer’s place of business.??Id.??Therefore, he and his friend got back into the produce truck and returned to the restaurant; while en route, the plaintiff was involved in an accident and was injured.??Id.??The Supreme Court found no liability on the part of the employer, holding that “an employee who deviates from his employment to engage in a personal errand is not entitled to compensation for damages sustained in an accident occurring before he returns to the course he was pursuing in the interest of his employer.”??Id., citing?Fidelity and Cas. Co. of New York v. Moore, 196 So. 495 (1940).??Further, the Court noted that the plaintiff was “far from his normal course in his social visit . . . and as obviously he was still off the track when he met misfortune.”??Id.

In?Morgan v. Collier County Motors, Inc., 193 So. 2d 35 (Fla. 2d DCA 1966), a salesman left his workplace with “an eye open” for prospective buyers of his company’s products, and went to a marina to visit friends and discuss a possible job for the company; he then headed to a bowling alley.??Id. at 38.??On his way to the bowling alley, he was in an accident and injured the plaintiff.??Id. The Second District found that it was possible that the trip to the marina was within the scope of his employment, but that ended when he headed towards the bowling alley.??Id.??“The proposed excursion was a social deviation which could hardly be considered within the scope of [his] employment.”??Id.

In?Masconi v. Regueiro, owners of an apartment complex authorized their tenant, Mr. Sosa, to collect rent and maintain their properties.??778 So. 2d 471 (Fla. 3d DCA 2001).??One day, the plaintiff visited Mr. Sosa’s apartment to pay his rent, and as they were discussing a maintenance issue, Mr. Sosa’s smoke alarm went off.??Id. at 472.??He went to go check the kitchen and asked the plaintiff to wait outside.??Id.??In the kitchen, he found a pot of overheated cooking oil, and he ran to the front door and threw the oil outside, scalding the plaintiff who was just outside the door.??Id.??The plaintiff attempted to hold the apartment owners liable for Mr. Sosa’s acts, but the trial court found that he had stepped away from his employment when he went to retrieve the pot of oil.??Id.??The Third District disagreed, finding that Mr. Sosa was authorized to act for the owners while residing on the premises.??Id.??Thus, he was allowed to cook in his apartment unit, and the owners could have foreseen that he would use the stove for cooking; there was no evidence they would not have expected this conduct.??Id. at 473.??Mr. Sosa interrupted one employment task—collecting rent—to douse a fire that could have destroyed his employers’ apartments, and the court found that a jury could have concluded that he did this at least partially on behalf of the employers.??Id.??Therefore, the court found that a reasonable jury could find that Mr. Sosa did not abandon his employers’ business, and reversed the trial court’s grant of summary judgment in favor of the employers.??Id.??In the concurrence, Chief Judge Schwartz noted that it was also key to the court’s holding that the act was “not so separated by time and logical sequence from the business of the master as to make it a separate and independent transaction.”??Id.??He went on to cite cases from several other jurisdictions involving similar facts, such as (1) a seaman who was required to sleep/remain on the vessel and therefore was within the scope of his employment while eating; (2) an employee who assaulted a customer in just a few moments and therefore engaged in “one continuous occurrence,” even though he had “stepped outside of his authority” in doing so;[4]?and (3) a court holding that the cessation of work by a traveling salesman for eating and drinking did not “sever” the employee’s relation to his work.

[1]?“Thus, conduct may be within the scope of employment, even if it is unauthorized, if it is of the same general nature as that authorized or is incidental to the conduct authorized.”???Hennagan v. Dep't of Highway Safety & Motor Vehicles, 467 So. 2d 748, 750 (Fla. 1st DCA 1985) (citing?Lewis v. Walston and Company,?487 F. 2d 617 (5th Cir. 1973)).

[2]?It was a question for the jury as to whether an employee returned to the scope of his employment by traveling to park his state-assigned vehicle in the state parking lot for the night after “stepping outside the scope” by leaving his job site to attend his son’s soccer game.??Ford v. Fla. Dep’t of Transp., 855 So. 2d 264 (Fla. 4th DCA 2003).

[3]?See also Kane Furniture Corp. v. Miranda, 506 So. 2d 1061 (Fla. 3d DCA 1987) (finding employee had ‘stepped away’ where he, a carpet installer, had completed two installations for his employer and then drove to a bar where he drank for four [4] hours, left, and caused an accident while headed back to the employer’s warehouse.

[4]?Interstate Co. v. McDaniel, 173 So. 165 (Miss. 1937) (holding that an employee on a train, whose job was to sell fruit to passengers, was within the scope of his employment where he swiftly punched a passenger whom he believed stole some fruit and then continued on selling the fruit throughout the train; “Where the whole transaction, as here, consumes only a few moments and has all the features constituting one continuous and unbroken occurrence, a master is not relieved of liability because the servant stepped outside of his authority.”).