Watson v. City of Hialeah

• Decision Date: 07 November 1989
• Docket Number: No. 88-1279,88-1279
• Citation: Watson v. City of Hialeah, 552 So.2d 1146, 14 Fla. L. Weekly 2585 (Fla. App. 1989)
• Parties: 14 Fla. L. Weekly 2585 James Michael WATSON, as Representative of the Estate of Michael Corso, deceased, Appellant, v. The CITY OF HIALEAH, Appellee.
• Court: Florida District Court of Appeals

Page 1146

552 So.2d 1146

14 Fla. L. Weekly 2585

James Michael WATSON, as Representative of the Estate of Michael Corso, deceased, Appellant, v. The CITY OF HIALEAH, Appellee.

No. 88-1279.

District Court of Appeal of Florida Third District.

Nov. 7, 1989.

Gievers & Spital, P.A., Cooper, Wolfe & Bolotin, P.A., and Linda G. Katsin and Sharon L. Wolfe, Miami, for appellant.

Gaebe, Murphy, Mullen & Antonelli, Coral Gables, and David Kleinberg, Miami, and Michael J. Murphy, Coral Gables, for appellee.

Before BARKDULL, NESBITT and JORGENSON, JJ.

JORGENSON, Judge.

James Michael Watson, personal representative of Michael Corso's estate, appeals from an order granting the City of Hialeah's Motion for Judgment in Accordance with its Motion for a Directed Verdict. We affirm.

In January, 1985, two City of Hialeah police officers, while staging a drug "rip-off," murdered Michael Corso and his girlfriend. The officers, Carlos Simon and Richard Caride, used their Hialeah police badges, "rights cards," radios, and portable blue bubble light on their car's dashboard to gain entry into Corso's residence. The officers were not in uniform. Corso's residence was in South Dade, well outside the Hialeah city limits and the officers' jurisdiction.

Watson, personal representative of Corso's estate, sued the City of Hialeah alleging vicarious liability, ¹ negligent hiring, and negligent retention.

At trial, Watson presented ample evidence that Simon and Caride were far from model police officers while employed by the City of Hialeah. Testimony established that they displayed low levels of maturity, abused their positions as police officers when dealing with the public, and generally presented significant disciplinary problems.

Specifically, there was evidence that Simon filed a false report and that Caride carried into the police station a loaded shotgun which discharged. Caride also avoided answering calls. Together, the officers verbally harassed a female security guard when responding to a shoplifting report at a Sears store and later used the police computer to get her address. Off duty, they were involved in a brawl at a nightclub and, when they went to a local hospital for treatment of injuries received in the brawl, offensively demanded immediate treatment because they were police officers, and disrupted the emergency room. Both the Sears security guard and the emergency room director filed complaints with the police department. The officers' division commander wrote a series of memos to the police chief detailing the officers' misconduct and recommended that the two officers be separated and watched closely.

The jury found that the city had negligently hired ² and retained the officers, and that the city's negligence was a legal cause of Corso's death. The jury awarded a total of $77,500 in damages. The city had moved for a directed verdict at the close of plaintiff's case, renewed its motion at the close of the evidence and, after the verdict was rendered, moved for judgment in accordance with the motion for a directed verdict.

The trial court granted the city's motion for judgment. The court ruled that the Corso murder was committed outside the scope of employment and that there was no evidence that the crime was caused by any act or omission of the city. We affirm the order on the ground that the element of causation was not proven. However, to explain why the order was ultimately correct, we must first clarify the difference between an action seeking to impose vicarious liability on an employer and an action against an employer based on the tort of negligent retention.

The order on appeal shows that the trial court misapprehended the nature of the tort of negligent retention when it directed a verdict on the ground that the officers' conduct was outside the course and scope of employment. By its very nature, an action for negligent retention involves acts which are not within the course and scope of employment and allows recovery even when an employer is not vicariously liable under the doctrine of respondeat superior. The Florida supreme court first recognized the tort of negligent retention in 1954, stating that the action was grounded on an employer's negligence in "knowingly keeping a dangerous servant on the premises which defendant knew or should have known was dangerous and incompetent and liable to do harm to the tenants." Mallory v. O'Neil, 69 So.2d 313, 315 (Fla.1954). See also Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986) ("... negligent ... retention, allows for recovery against an employer for acts of an employee committed outside the scope and course of employment."); 2 Fla.Jur.2d Agency & Employment § 211 (1977) ("The application of the theory of independent negligence in hiring or retaining an employee becomes important in cases where the act of the employee either was not, or may not have been, within the scope of his employment.").

However, an employer's liability for negligent retention is not unlimited. There must be "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...." Garcia v. Duffy, 492 So.2d at 439. In Garcia, the second district held that an employer is only liable to an injured plaintiff for negligent retention when the employer has a "legal duty, arising out of the relationship between the employment in question and the particular plaintiff, owed to a plaintiff who is within the zone of foreseeable risks created by the employment." Id. at 440 (emphasis added). Put differently, not only must the employer owe a duty to the plaintiff; the breach of that duty must be the proximate cause of the plaintiff's harm. See Harrison v. Tallahassee Furniture Co., 529 So.2d 790 (Fla. 1st DCA 1988) (proximate causation pivotal to legal theory of negligent hiring and retention). "Although the scope of employment is not a pertinent consideration in an action for negligent hiring and retention, proximate cause is an essential element which must be pleaded and proved in any cause of action in tort for negligence, and plaintiff's injuries here must be shown to have been brought about by reason of the employment of the incompetent servant." Bates v. Doria, 150 Ill.App.3d 1025, 1032, 104 Ill.Dec. 191, 196, 502 N.E.2d 454, 459 (1986) (...