Garcia v. Duffy

• Decision Date: 30 July 1986
• Docket Number: No. 85-1825,85-1825
• Citation: 11 Fla. L. Weekly 1680,492 So.2d 435
• Parties: 11 Fla. L. Weekly 1680 Lee J. GARCIA, Appellant, v. Richard J. DUFFY and Joule Yacht Transport Company, Appellee.
• Court: Florida District Court of Appeals

Page 435

492 So.2d 435

11 Fla. L. Weekly 1680

Lee J. GARCIA, Appellant, v. Richard J. DUFFY and Joule Yacht Transport Company, Appellee.

No. 85-1825.

District Court of Appeal of Florida Second District.

July 30, 1986.

John N. Samaha, St. Petersburg, for appellant.

Nelly N. Khouzam of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee.

SCHOONOVER, Judge.

In an action for damages against Joule Yacht Company (defendant employer), Lee J. Garcia (plaintiff), appeals from a final order dismissing his second amended complaint with prejudice. We find that the facts alleged in the second amended complaint fail to establish either that the defendant employer owed a duty to the plaintiff to exercise reasonable care in hiring and retaining safe and competent employees or that the defendant employer breached such a duty. We, therefore, affirm.

After an initial and first amended complaint were dismissed for failure to state a cause of action, the plaintiff filed a second amended complaint alleging that the defendant employed Richard J. Duffy (employee) and that the employee's duties included driving a truck for the delivery of boats. The defendant employer allowed the employee to keep a dog in the delivery truck to provide companionship and to deter others from boarding the truck. On January 13, 1983, the plaintiff accidently struck and killed the dog when it darted in front of a vehicle he was driving.

The complaint further alleged that the accident occurred in the vicinity of the defendant employer's premises and that the employee, while on the premises owned, possessed, and controlled by the defendant employer, became enraged upon witnessing the plaintiff strike and kill his dog. As the plaintiff disembarked from the vehicle he had been driving, the employee rushed toward him and struck him in the face, causing the plaintiff to temporarily lose consciousness.

The employee was alleged to have admitted, in a deposition, to being charged with assault and battery in the 1960's and convicted of night-prowling in the 1970's. The defendant employer was alleged to have stated in answers to interrogatories that it conducted a background investigation of prospective employees consisting of inquiries of past employers.

In addition to bringing a cause of action against the employee personally, the plaintiff brought an action for damages against the employer. Although the second amended complaint is less than explicit regarding the theories under which the plaintiff sought to hold the defendant employer liable, it appears the allegations attempted to establish liability under the doctrine of respondeat superior and the theory of negligent hiring and retention. The defendant employer filed a motion to dismiss the second amended complaint for failure to state a cause of action. When the trial court granted the motion and dismissed the action with prejudice, the plaintiff filed a timely notice of appeal.

For purposes of deciding whether the trial court erred in granting the defendant employer's motion to dismiss, we assume that all facts alleged in the complaint are true and decide the issue on questions of law only. Connolly v. Sebeco, 89 So.2d 482 (Fla.1956). Plaintiff's counsel on appeal concedes that damages are not being sought under the doctrine of respondeat superior; nevertheless, we note that the second amended complaint fails to allege facts sufficient to state a cause of action under that doctrine. It is where the employee's acts are committed within the scope or course of his employment that an employer may be liable under the doctrine of respondeat superior. See Thurston v. Morrison, 141 So.2d 291 (Fla. 2d DCA 1962); Friedman v. Mutual Broadcasting System, Inc., 380 So.2d 1313 (Fla. 3d DCA), cert. denied, 388 So.2d 1112 (Fla.1980). Although the plaintiff alleged, in count I, that the employee was on duty at the time of the attack and, in count II, that the employee witnessed the accident and became enraged while on the defendant employer's premises, these statements are insufficient to allege that the attack was committed within the scope or course of employment.

The plaintiff's second theory of liability, negligent hiring or retention, allows for recovery against an employer for acts of an employee committed outside the scope and course of employment. This cause of action in Florida had its inception in Mallory v. O'Neil, 69 So.2d 313 (Fla.1954), a case in which the supreme court approved a doctrine that was emerging from other jurisdictions and was approved in section 317, Restatement (Second) of Torts. According to the supreme court, the rule emerging from other jurisdictions allowed for recovery based on the negligence of an employer who knowingly kept a dangerous employee on the premises, and the employer was held liable for an employee's acts committed outside the scope of employment, whether willful, malicious, or negligent, where the acts trespassed against the rights of someone legally on the employer's premises. ¹ Section 317, Restatement (Second) of Torts, set forth the rule as the employer's duty to exercise reasonable care to control his servant while acting outside the course of his employment, in order to prevent the employee from intentionally harming others and from creating an unreasonable risk of bodily harm to them. ² The rule has continued to evolve and is now commonly referred to as an employer's liability for negligent hiring and employment, see, e.g., Petrick v. New Hampshire Insurance Co., 379 So.2d 1287 (Fla. 1st DCA 1979), cert. denied, 400 So.2d 8 (Fla.1981); Abbott v. Payne, 457 So.2d 1156 (Fla. 4th DCA 1984); see also, 379 So.2d 1287, or negligent hiring and retention. See, e.g., Texas Scaggs, Inc. v. Joannides, 372 So.2d 985 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 767 (Fla.1980).

The principal difference between negligent hiring and negligent retention as bases for employer liability is the time at which the employer is charged with knowledge of the employee's unfitness. Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness, and the issue of liability primarily focuses upon the adequacy of the employer's pre-employment investigation into the employee's background. See, e.g., Williams v. Feathersound, Inc., 386 So.2d 1238 (Fla. 2d DCA 1980), petition for review denied, 392 So.2d 1374 (1981); Abbott. Negligent retention, on the other hand, occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment. See, e.g., McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419 (1947); Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12 (1943); see also, Riddle v. Aero Mayflower Transit Co., 73 So.2d 71 (Fla.1954).

Once liability began to be imposed on employers for acts of their employees outside the scope of employment, the courts were faced with the necessity of finding some rational basis for limiting the boundaries of that liability; otherwise, an employer would be an absolute guarantor and strictly liable for any acts committed by his employee against any person under any circumstances. Such unrestricted liability would be an intolerable and unfair burden on employers. Only when an employer has somehow been responsible for bringing a third person into contact with an employee, whom the employer knows or should have known is predisposed to committing a wrong under circumstances that create an opportunity or enticement to commit such a wrong, should the law impose liability on the employer. See Restatement (Second) of Torts § 302B(D); Welch Manufacturing v. Pinkerton's, Inc., 474 A.2d 436 (R.I.1984).

As is often the case with legal concepts, the theories imposing employer liability for negligent hiring and retention have developed on a case-by-case basis. In order to decide this particular case, we found it necessary to explore two principal issues: (1) to whom does an employer owe a duty to exercise reasonable care in hiring and retaining safe and competent employees and (2) how is that duty breached? We set forth our findings in order to provide some guidance in the area.

In answering the first question, we note that one of the fundamental elements of actionable negligence under any theory is the existence of a duty owed to the person injured by the person charged with negligence. Belmar, Inc. v. Dixie Building Maintenance, Inc., 226 So.2d 280 (Fla. 3d DCA 1969); see also, Heps v. Burdine, 69 So.2d 340 (Fla.1954). The plaintiff must demonstrate that he is within the zone of risks that are reasonably foreseeable by the defendant. Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA), petition for review denied, 411 So.2d 380 (Fla.1981); Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928).

In Mallory, the supreme court applied a rule extending a duty to anyone legally on the employer's premises whose rights were trespassed against by the employee. The plaintiff, however, need not be on the employer's premises, as evidenced by the decision in Abbott, where a duty was found to be owed by an employer to one of its customers, where the employer knew that its employee would have free and independent access to its customer's home for the purpose of providing pest control services.

As far as people other than the employer's customers, invitees, and licensees are concerned, the case of Belmar, Inc. addressed the duty owed to a plaintiff robbed by employees who had gained access to the plaintiff's premises when cleaning the premises of a third party who had a contract with their employer. The court held that the complaint failed to allege the existence of a duty because the contract was not between the employer and plaintiff, and because an employer does...