McArthur Jersey Farm Dairy, Inc. v. Burke

• Decision Date: 14 October 1970
• Docket Number: No. 69--566,69--566
• Citation: 240 So.2d 198
• Parties: McARTHUR JERSEY FARM DAIRY, INC., Appellant, v. Sophia BURKE, joined by Frank Burke, her husband, Appellees.
• Court: Florida District Court of Appeals

Page 198

240 So.2d 198

McARTHUR JERSEY FARM DAIRY, INC., Appellant, v. Sophia BURKE, joined by Frank Burke, her husband, Appellees.

No. 69--566.

District Court of Appeal of Florida, Fourth District.

Oct. 14, 1970.

Stephen C. McAliley, of Carlton, Brenan & McAliley, Fort Pierce, for appellant.

John A. Gentry, III, of Moyle, Gentry & Jones, West Palm Beach, and Conely & Conely, Okeechobee, for appellees.

CROSS, Chief Judge.

Appellant-defendant, McArthur Jersey Farm Dairy, Inc., appeals a judgment entered pursuant to a jury verdict in favor of the appellee-plaintiffs, Sophia Burke and her husband Frank Burke, for damages arising out of an automobile accident. We affirm.

The plaintiffs owned and operated a nursery and had contracted with the defendant, through its superintendent, for planting shrubbery on the defendant's dairy farm. While the plaintiffs were preparing to water some shrubbery recently planted, the defendant's off-duty employee, a minor, drove with his girlfriend upon the premises of the dairy farm in his father's automobile to purchase some cold drinks from a vending machine located at the dairy barn. The dairy streets and barn are open to the public for the viewing of the operation of the dairy. The minor employee and his parents, also employees of the defendant, reside on property owned by the defendant-dairy.

Upon arrival at the barn, the employee backed his father's automobile to within a few feet of the barn steps, at which time Mr. Burke informed the employee that he was about to start the sprinklers to water the shrubbery, and that if the car were left there, it would be wet. The employee thereupon hurried to and from the vending machine. Mrs. Burke was starting to ascend the barn's concrete steps located immediately to the rear of the automobile, where she paused for a moment to speak to her husband, Mr. Burke. In preparing to drive away from the barn, the employee 'revied up' the engine of the automobile and mistakenly engaged the car's transmission in reverse, whereupon the car was propelled rapidly backwards, pinning Mrs. Burke's legs between the car's rear bumper and the concrete steps, injuring and disfiguring her.

At trial the jury returned a verdict in favor of the Burkes and against the defendant-dairy. Hence this appeal.

The primary question presented by this appeal is whether and to what extent a master is liable for the negligent acts of a servant which are unconnected with the servant's duties as a servant and outside the scope and course of employment.

The general rule is that the relationship of master and servant does not render the master liable for the torts of the servant unless connected with his duties as such servant, or within the scope or course of his employment. However, set forth in 2 Restatement of Torts, Section 317, is a related exception to the general rule, which is as follows:

'Section 317. Duty of Master to Control Conduct of Servant.

A master is under a duty to exercise reasonable care so to control his servant while acting outside the course of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if

'(a) the servant

(i) is upon the premises in the possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

'(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.'

The foregoing section of the Restatement of Torts appears to have developed from Fletcher v. Baltimore & Potomac Railroad Co., 1897, 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411, and has been construed and applied in numerous cases in the United States, e.g., Ford v. Grand Union Company, 1935, 268 N.Y. 243, 197 N.E. 266; and Dincher v. Great Atlantic & Pacific Tea Co., 1947, 356 Pa. 151, 51 A.2d 710. This section of the Restatement was also approved by the Supreme Court of Florida in Mallory v. O'Neil, Fla.1954, 69 So.2d 313.

In Ford v. Grand Union Company, supra, the court in determining the duty of the master to control his servant on his business premises stated:

'The duty, if any, is certainly not absolute. The owner of a property not inherently dangerous who does not knowingly permit others to put the property to a dangerous use, is not subject to any absolute duty to prevent unauthorized persons from putting it to a dangerous use. Here there must be at least notice that a dangerous use is threatened, and perhaps acquiescence in such use. Again, where there is no notice that an employee is in the habit of acting in a manner dangerous to others, there is no duty to control the actions of the employee outside the scope of his employment. Such limitations, at least, are dictated by fundamental principles of tort liability. Without them there would be no room for the doctrine that a person is responsible only for the result of his own fault or...