Nazareth v. Herndon Ambulance Service, Inc.

• Decision Date: 25 April 1985
• Docket Number: No. 83-1323,83-1323
• Citation: 10 Fla. L. Weekly 1034,467 So.2d 1076
• Parties: , 10 Fla. L. Weekly 1034 Ruth Ann NAZARETH, Appellant, v. HERNDON AMBULANCE SERVICE, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1076

467 So.2d 1076

68 A.L.R.4th 1, 10 Fla. L. Weekly 1034

Ruth Ann NAZARETH, Appellant, v. HERNDON AMBULANCE SERVICE, INC., Appellee.

No. 83-1323.

District Court of Appeal of Florida Fifth District.

April 25, 1985.

Roger D. Helms of Troutman, Parrish, Williams & Blankenship, P.A., Winter Park, for appellant.

Neal P. Pitts of Pitts, Eubanks & Ross, P.A., Orlando, for appellee.

SHARP, Judge.

Ruth Ann Nazareth appeals from a summary judgment determining that Herndon Ambulance Service, Inc. is not liable for a sexual assault and battery which allegedly occurred while appellant was being transported by ambulance from her home to Florida Hospital North and which was allegedly perpetrated by Herndon's employee who was attending her in the passenger portion of the ambulance. We must construe the record in a light most favorable to Nazareth, resolving all conflicting statements in her favor, ¹ and reading the complaint to determine whether the allegations are sufficient to state a cause of action against Herndon. ² Viewed in this light, we find that the record presents triable issues against Herndon based on vicarious liability and breach of Herndon's implied contract to safely transport its passenger, Nazareth. Accordingly, we reverse the summary judgment.

The record establishes that at the time of the alleged tort Herndon was licensed and conducting the business of transporting people requiring ambulance service in Orange County, Florida. One evening in 1982, Nazareth's husband, a medical doctor, called Herndon to take his wife to the hospital. The company dispatched an ambulance staffed by Barrett, an emergency medical technician and driver, and a female employee with similar training but less experience. The female attendant drove the ambulance at Barrett's suggestion, and Barrett tended to Nazareth, who was vomiting and ill, in the passenger compartment. Nazareth claimed that while she was strapped onto the stretcher and too weak to defend herself, she was sexually assaulted by Barrett. She reported the incident to her husband at the hospital, and when confronted later the same evening by the Nazareths in Ruth Ann's hospital room, Barrett allegedly admitted the charges.

The trial court granted Herndon's motion for summary judgment on the ground there was no genuine issue as to any material fact bearing upon the liability of Herndon. We agree with the trial court as to those theories in Nazareth's complaint based on Herndon's negligence and punitive damages, but disagree as to those allegations relating to vicarious liability and breach of implied contract. ³

The record conclusively establishes no basis to charge Herndon with negligence in hiring Barrett, and nothing to put Herndon on notice of any tendencies on Barrett's part to commit such an assault. Barrett's record as an employee for Herndon was excellent; and there was nothing in Barrett's past to indicate he would commit such an act. ⁴ The fact that Herndon did not make a detailed check of Barrett's background before hiring him, therefore, was irrelevant since if such a check had been made nothing would have been discovered. ⁵ Nor do we think Nazareth's contention that Herndon should have had a policy that only female attendants attend female passengers has any merit in view of the evidence in the record that no such policy exists anywhere in the ambulance business, and that it would not be feasible. Were this theory pled as a separate count, a partial summary judgment would have been appropriate as to it.

In addition, the punitive damage claim by Nazareth against Herndon could also have been properly disposed of by the trial judge, since the record shows the sexual assault was clearly not within the scope of Barrett's employment, and it was not directed or authorized by Herndon. Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981); Commodore Cruise Line, Ltd. v. Kormendi, 344 So.2d 896 (Fla. 3d DCA), cert. denied, 352 So.2d 172 (Fla.1977).

Generally, sexual assaults and batteries by employees are held to be outside the scope of an employee's employment and, therefore, insufficient to impose vicarious liability on the employer. See City of Green Cove Springs v. Donaldson, 348 F.2d 197 (5th Cir.1965); Bozarth v. Harper Creek Board of Education, 94 Mich.App. 351, 288 N.W.2d 424 (1979); 6 Am.Jur.2d Assault & Battery § 139 (1963). The general rule is that an employer cannot be held liable for the tortious or criminal acts of an employee, unless they were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer. See Weiss v. Jacobson, 62 So.2d 904 (Fla.1953); De Jesus v. Jefferson Stores, Inc., 383 So.2d 274 (Fla. 3d DCA 1980); Lay v. Roux Laboratories, Inc., 379 So.2d 451, (Fla. 1st DCA 1980); Martin v. United Securities Services, Inc., 373 So.2d 720 (Fla. 1st DCA 1979); Andrews v. Norvell, 65 Ga.App. 241, 15 S.E.2d 808 (1941); W. Prosser, Torts, § 70 at 464, 465 (4th ed. 1971).

However, some exceptions to this rule appear in the case law. One is summarized by Restatement (Second) of Agency § 219(2)(d) (1958): where "the servant purported to act or speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." A Florida case applied this principle in a fraud case. See Industrial Insurance Company of New Jersey v. First National Bank of Miami, 57 So.2d 23 (Fla.1952).

Another better established exception to the general rule is where the employer is a common carrier for hire to the public, and the tort or attack is by an employee upon a passenger while the contract for transport is being accomplished. See Jenkins v. General Cab Company of Nashville, 175 Tenn. 409, 135 S.W.2d 448 (1940); Restatement (Second) of Agency, § 214 (1958); 9 Fla.Jur.2d Carriers § 116; 139 (1979). Such circumstances were clearly established by the record in this case. Herndon was licensed and generally operating an ambulance business in Orange County, Florida; Nazareth was a paying passenger; and the tort allegedly took place en route to the hospital.

Florida has long recognized vicarious liability on the part of a carrier-employer for torts of employees under such circumstances without regard to whether they were committed within the scope of employment. See Miami Transit Company v. Yellen, 156 Fla. 351, 22 So.2d 787 (Fla.1945) (bus company); Commodore Cruise Line Ltd. (cruise ship owner); Jacobs v. Harlem Cab, Inc., 183 So.2d 552 (Fla. 3d DCA 1966) (taxi cab company); Henderson v. Tarver, 123 So.2d 369 (Fla. 2d DCA 1960) (taxi cab company). In Wright v. Georgia Southern and F. Ry. Co., 66 Fla. 510, 63 So. 909 (1913), the court denied liability because the plaintiff was a trespasser, but it recognized the result would have been otherwise, had a paying passenger been involved:

The general rule is that a carrier can be held liable for the torts of its servants only when they are done by the servant in the course of the servant's duty, and in his undertaking to perform it, but not when they are acts of willful misconduct not done in the line of duty.... Where the relation of passenger and carrier exists, a stringent rule of liability for the tortious acts of the latter's agents prevails. A passenger is entitled to protection against violence, abuse, or an assault or battery upon the person of the passenger by the agents of a carrier, though such acts may be unauthorized by the carrier and prompted by vindictiveness on the part of the agent or servant.

Wright at 912.

The rationale for imposing vicarious liability on the employer in such cases is the existence of an implied contract between the victim-passenger and the carrier for safe passage, free from attack by the carrier's employees. See Co-op Cab Co., Inc. v. Singleton, 66 Ga.App. 874, 19 S.E.2d 541 (1942); St. Michelle v. Catania, 252 Md. 647, 250 A.2d 874 (1969). Once the undertaking to transport a passenger has begun, this extraordinary duty to the passenger arises, and does not terminate until the journey is complete. Henderson; Loftin v. Florida Cities Bus Company, 159 Fla. 514, 32 So.2d 166 (1947). This is characterized in terms of tort liability as a non-delegable duty owed by the employer. ⁶ These two causes of action, one in tort and one in contract, may coexist in an action against a carrier. See Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932).

The source of this high standard of care imposed on carriers is in part the nature of the carrier's undertaking whereby the passenger must entrust his or her bodily safety to the care and control of the carrier's vehicle and employees, and he or she cannot freely or independently walk away, once the undertaking has commenced. ⁷ This situation creates a special duty to protect. This is the basis for such tort liability having been applied in other similar situations not involving carriers, such as innkeepers, hospitals, and pullman car companies. See Berger v. South Pacific Company, 144 Cal.App.2d 1, 300 P.2d 170 (1956) (Pullman Company); Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2, 203 N.E.2d 706 (1964) (hotel guest); Stone v. William M. Eisen Company, 219 N.Y. 205, 114 N.E. 44 (1916) (Orthopedic brace company patient); Prosser, supra, § 70 at 465; Note, The Growth of Vicarious Liability for Willful Torts Beyond the Scope of Employment, 45 Harv.L.Rev. 342 at 344 (1931); Annot., 10 A.L.R.3d 619 (1966); Annot., 34 A.L.R.2d 372 at 379-84 (1984). As the court said in Vannah v. Hart Private Hospital, 228 Mass. 132, 117 N.E. 328, 330 (1917):

The decision ... does not depend upon the fact that the defendants ... were common carriers. The decision would have been the same had the assault and battery occurred on an excursion steamer in place of upon a steamer operated by a common carrier.... The doctrine ... applies whenever there is a contract between the...