Jeffrey P. Gale, P.A. // Interplay Between Vicarious Liability and Negligent Hiring, Employment, and Entrustment Cases

Under the legal doctrine of respondeat superior, employers can be held liable for the negligent or purposeful acts of their employees. See Valeo v. East Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (holding negligence of employee imputed to employer when employee “committed the negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.”). This liability, known as vicarious liability, applies even if the employer has done nothing wrong.

In some instances, the employer’s own negligence is part of the causal chain resulting in the harm. For example, a few years ago our client was severely beaten in his home by a furniture deliveryman who became annoyed by the strong smell of fish being cooked in the home. We learned that the deliveryman had a criminal record of violent activity before he was hired and a history of physical misconduct while employed. He should not have been hired or retained for a job putting him in one-on-one unsupervised contact with customers.

Negligent hiring and employment have long been found to be legitimate bases of recovery in Florida. See, e.g., Mallory v. O’Neil, 69 So.2d 313 (Fla. 1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

Similarly, certain employees should not be entrusted with operating motor vehicles. The reasons range from being a known reckless driver to mental impairment from a medical condition or alcohol or drug use. The theory of negligent entrustment has long been utilized in an automobile situation as the basis of recovery. See, e.g., Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Wright Fruit Co. v. Morrison, 309 So.2d 54 (Fla.2d DCA 1975).

Cases are supposed to be decided on relevant evidence. Relevant evidence is defined in section 90.401, Florida Statutes as “evidence tending to prove or disprove a material fact.” Counterbalancing this rule is 90.403, which sometimes operates to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

90.403 played a role in Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2nd DCA 1977). Clooney sustained crippling injuries in a motor vehicle accident caused, in part, by an employee of Anderson Manufacturing Co. He sued Anderson for negligence in hiring and continuing to employ that driver in light of his incompetence and past driving record and for negligently entrusting its truck to him. The trial court struck these Counts of the complaint. The Second District Court affirmed based on the following reasoning:

Under these theories the past driving record of the driver will of necessity be before the jury, so the culpability of the entrusting party can be determined. As was said in Dade County v. Carucci, 349 So.2d 734, 735 (Fla.3d DCA 1977), “Ordinarily, the evidence of a defendant’s past driving record should not be made a part of the jury’s considerations.”

Here Counts II through V impose no additional liability on Anderson Mfg. Anderson has not denied ownership or permitted use of the truck driven by Geeting; therefore, it is liable for Geeting’s negligence under the vicarious liability doctrine. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Since the stricken counts impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants. See Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303 (1954). 

Clooney dealt with the admissibility of a defendant’s past driving record. However, the principle can apply to other respondeat superior situations involving different types of background evidence. In our physical assault case, our investigation uncovered prior criminal convictions and similar complaints by other customers. Relying on Clooney, the employer defendant opposed our counts alleging negligent hiring and retention. The case settled before the matter came to a head with formal pleadings.

Interestingly, had the case not settled we may have used other parts of the Clooney decision to support our position. Clooney alleged in Count V of his Complaint that Anderson Mfg. Co’s behavior showed a wilful and wanton disregard for the rights of Clooney. He did this in an effort to recover punitive damages. The trial court dismissed this Count, feeling that the facts did not rise to the level of wilful and wanton disregard. The appellate court affirmed. However, the Second DCA did say this:

We recognize that factual situations could arise where one of the referred-to theories would impose additional liability. If the allegations in this case had been sufficient to allow the claim for punitive damages to go before the jury, this would be such a case. Another example might be where an owner or authorized custodian of a motor vehicle who knows that the vehicle has defective brakes allows one who is not aware of this dangerous condition to use it, and because of the bad brakes an accident occurs. If the driver were found not to be negligent, the owner could not be held vicariously liable. So the means of imposing liability on the owner would be through his own negligence of lending the car with bad brakes, i.e., negligent entrustment. See generally Wright Fruit Co. v. Morrison,309 So.2d 54 (Fla.2d DCA 1975).

Upon remand of this case for a new trial we realize that Clooney may be able to amend his complaint to allege sufficient ultimate facts to form the basis of a claim for punitive damages. If this occurs, additional theories of recovery may be pleaded; however, we repeat our cautionary note. No theory which permits the past driving record of Geeting should be presented to the jury unless there is a proper claim for punitive damages.

Jones v. Vasilias, District Court of Appeal of Florida, Fourth DCA (2023), adds an interesting twist to Clooney. The underlying action arose from a crash suffered by appellant Jones while riding his bicycle along the busy street in front of an automobile dealership as an employee was leaving in a dealership van for a delivery.

In addition to a claim of negligent driving against the driver and the dealership, the operative complaint asserted causes of action against the supervisors for negligent training, retention, supervision, and entrustment. As to the service manager, the complaint also alleged negligent hiring. As to North American, the complaint asserted vicarious liability for the acts of its employee, the general manager.

Citing Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977), the supervisors and North American each moved to dismiss the respective claims against them for failure to state a cause of action. The trial court granted the motion to dismiss.

In reversing and remanding for further proceedings, the Second DCA declared that the trial court’s reliance on Clooney was misplaced. It noted that the negligent employment claims in Clooney were brought against the employer, and not individually against a supervisor. It provided the following analysis:

“It is well-settled . . . that individual officers and agents of a corporation may be held personally liable for their tortious acts, even if such acts were committed within the scope of their employment or as corporate officers.” First Fin. USA, Inc. v. Steinger, 760 So. 2d 996, 997-98 (Fla. 4th DCA 2000) (emphasis added); see also Greenberg v. Post, 19 So. 2d 714, 717 (Fla. 1944) (“It is well settled that an employee may be held personally liable at the suit of a third person for positive negligent acts committed by him even though his employer may likewise be liable for the servant’s negligent conduct when exercised within the scope of the employment.”). Additionally, Florida courts have emphasized that the officer cannot be personally liable “for [his] torts merely by reason of his official character[,]” but he is liable for torts where he “commits or participates in the commission of a tort.” Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981) (citation omitted); see also Costa Invs., LLC v. Liberty Grande, LLC, 353 So. 3d 627, 633-34 (Fla. 4th DCA 2022); McElveen v. Peeler, 544 So. 2d 270, 271 (Fla. 1st DCA 1989). “A contrary rule would enable a director or officer of a corporation to perpetrate flagrant injuries and escape liability behind the shield of his representative character.” Orlovsky, 405 So. 2d at 1364 (citation omitted). “A corporate officer or agent must be alleged to have acted tortiously in his individual capacity in order to be individually liable.” White-Wilson Med. Ctr. v. Dayta Consultants, Inc., 486 So. 2d 659, 661 (Fla. 1st DCA 1986).

As a proviso, the DCA concluded with these words:

We again emphasize that our opinion is based on the pleading-stage procedural posture of this case. We also point out that our conclusions as to the sufficiency of the pleadings do not determine how the elements of the cause of action will play out as discovery reveals more details of the facts of this case.

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