Valeo v. E. Coast Furniture Co.

Citation95 So.3d 921
Decision Date01 August 2012
Docket NumberNo. 4D10–5141.,4D10–5141.
PartiesMark VALEO, Appellant, v. EAST COAST FURNITURE CO. and Joey P. Neering, Appellees.
CourtCourt of Appeal of Florida (US)

OPINION TEXT STARTS HERE

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Gary W. Roberts and Michael K. Beck of Gary Roberts & Associates, P.A., West Palm Beach, for appellant.

Beth Gordon of The Gordon Law Firm, Williston, for appellee.

GERBER, J.

The plaintiff appeals from the circuit court's final summary judgment in favor of defendant East Coast Furniture Co. (the defendant) on his claims for negligent hiring, negligent retention, and vicarious liability arising out of an incident in which the defendant's employee swung a padlock at him, hitting him in the eye. On the negligent hiring and negligent retention claims, the plaintiff argues the court erred in finding that, at the time of the incident, the defendant did not owe a duty to him. On the vicarious liability claim, the plaintiff argues he presented sufficient evidence to create a genuine issue of material fact that, at the time of the incident, the defendant's employee was acting in the course of his employment and to further the defendant's interests. We disagree with the plaintiff on the negligent hiring and negligent retention claims, but agree with the plaintiff on the vicarious liability claim. Therefore, we affirm in part and reverse in part.

The record presents the following facts. The defendant's employee was driving the defendant's truck in between jobs when the truck and the plaintiff's truck collided. The plaintiff and the defendant's employee pulled into a parking lot. The plaintiff exited his truck and approached the driver's side of the defendant's truck. The defendant's employee grabbed a padlock and swung it in the plaintiff's direction, hitting him in the eye. The defendant's employee later testified at his deposition that the plaintiff tried to pull him out of the truck through the window. According to the employee, he thought the plaintiff was trying to rob him of the cash he was carrying for the defendant's business, and so he swung the padlock in the plaintiff's direction to prevent the robbery. The plaintiff, during his deposition, denied that he was the aggressor.

The plaintiff sued the defendant and the employee. The complaint contained five counts. Count I related to the collision and is not relevant here. Count II alleged a negligence claim against the employee for the padlock incident and also alleged a vicarious liability claim against the defendant for the employee's alleged negligence in the padlock incident. Count III alternatively alleged a battery claim against the employee for the padlock incident. Counts IV and V respectively alleged a negligent hiring claim and a negligent retention claim against the defendant arising out of its alleged knowledge of its employee's criminal history before the padlock incident.

The defendant moved for summary judgment on the negligent hiring, negligent retention, and vicarious liability claims. On the negligent hiring and negligent retention claims, the defendant argued that it did not owe a duty to the plaintiff because he was not within its foreseeable zone of risk for the padlock incident. On the vicarious liability claim, the defendant argued that it could not be held liable because the padlock incident did not arise out of the use of its vehicle and, therefore, its employee could not have been acting to further its interest. The circuit court agreed with the defendant's arguments and granted the defendant's motion for summary judgment as to all three claims.

This appeal followed. On the negligent hiring and negligent retention claims, the plaintiff argues the court erred in finding that, at the time of the padlock incident, the defendant did not owe a duty to him. On the vicarious liability claim, the plaintiff argues he presented sufficient evidence to create a genuine issue of material fact that, at the time of the padlock incident, the defendant's employee was acting in the course of his employment and to further the defendant's interests. Based on these arguments, our review is de novo. See R.J. Reynolds Tobacco Co. v. Grossman, –––So.3d ––––, 2012 WL 2400887 (Fla. 4th DCA 2012) (“The existence of a legal duty is purely a question of law and is subject to de novo review.”) (citation omitted); Flueras v. Royal Caribbean Cruises, Ltd., 69 So.3d 1101, 1107 (Fla. 3d DCA 2011) (an appellate court reviews an order granting summary judgment de novo to decide whether, after drawing every inference in favor of the non-moving party, there is any genuine issue of material fact).

On the negligent hiring and negligent retention claims, we agree with the circuit court's finding that, at the time of the padlock incident, the defendant did not owe a duty to the plaintiff. The fifth district recently reached the same conclusion in a case with similar facts, Magill v. Bartlett Towing, Inc., 35 So.3d 1017 (Fla. 5th DCA 2010). In Magill, the defendant's tow truck driver, who had a criminal history, was off duty when he pulled up behind the plaintiff's car in the defendant's tow truck with its emergency lights on. The driver stepped out of the truck, approached the plaintiff's car, and screamed at her to get out of her car. When the plaintiff complied, the driver pushed her to the ground and stole her car. The plaintiff sued the defendant for negligent hiring and negligent retention. The circuit court dismissed the action. The fifth district affirmed. According to our sister court, the theories of negligent hiring and negligent retention “do not render an employer strictly liable for criminal acts committed by a ‘dangerous employee’ against a third person.” Id. at 1020 (citation omitted). The court stated that, for an employer to owe a plaintiff a duty to exercise reasonable care in hiring and retaining safe and competent employees, “that plaintiff must be within a zone of risk that was reasonably foreseeable to the employer.” Id. (citation omitted). The court explained that “the plaintiff is required to allege facts that would establish some relationship or nexus between the plaintiff and the tortfeasor's employment from which a legal duty would flow from the defendant-employer to that particular plaintiff.” Id. at 1021 (citation omitted). Applying the foregoing principles, the court concluded that the plaintiff did not allege a sufficient nexus between her and the driver's employment to support a finding that the...

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  • Plain Bay Sales, LLC v. Gallaher
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • January 14, 2020
    ...of employment, or (2) during the course of employment and to further a purpose or interest of the employer." Valeo v. E. Coast Furniture Co., 95 So.3d 921, 925 (Fla. 4th DCA 2012). "Vicarious liability is a form of indirect liability in which a party, who may have not been negligent, can be......
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    ...employees from solicitation by employer's competitor or "maliciously in pursuit of his own purpose"); Valeo v. E. Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (employee's motivation was jury question wherePage 4employee testified he attacked plaintiff with padlock because he ......
  • Goodman v. Rose Realty W., Inc.
    • United States
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    • May 11, 2016
    ...1st DCA 1985) cited with approval in McGhee v. Volusia Cty., 679 So.2d 729, 732 (Fla.1996) ; see also Valeo v. E. Coast Furniture Co., 95 So.3d 921, 925 (Fla. 4th DCA 2012) (recognizing that an employer could be liable for an employee's battery committed during course of employment, if to f......
  • Kaddatz v. Sch. Bd. of Manatee Cnty.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • October 28, 2014
    ...or (2) during the course of employment and to further a purpose or interest of the employer." Valeo v. E. Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012).Page 4 As DK and Kaddatz note in their response to the Motion, "'Generally, sexual assaults and batteries by employees are he......
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