Williams v. Benway, CASE NO.: 8:11-cv-1840-T-23TGW

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Parties: ANTHONY S. WILLIAMS, et al., Plaintiffs, v. KATHLEEN BENWAY, et al., Defendants.
• Docket Number: CASE NO.: 8:11-cv-1840-T-23TGW
• Decision Date: 30 January 2012

ANTHONY S. WILLIAMS, et al., Plaintiffs,
v.
KATHLEEN BENWAY, et al., Defendants.

CASE NO.: 8:11-cv-1840-T-23TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: January 30, 2012

ORDER

The United States certified that Kathleen Benway acted within the scope of her federal government employment when her car allegedly swerved at Anthony Williams's motorcycle and caused Williams to crash. Anthony and Elizabeth Williams failed to challenge the certification, and an order (Doc. 21) substituted the United States into the action for Benway. The Williamses move (Docs. 23, 24) for reconsideration.

Benway works in Washington, D.C., as an attorney for the Federal Trade Commission. In May, 2007, the FTC paid for Benway to travel to Florida to conduct an investigation in Orlando on a Thursday and a Friday and to interview a witness in Tampa on the following Monday. The FTC paid also for Benway's expenses, including the rental of a car. After completing her work in Orlando,

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Benway began driving to her mother's residence in Bradenton, where Benway planned to stay until her Monday business in Tampa. The FTC approved Benway's choice for lodging. The accident with Williams occurred during Benway's drive to her mother's house.

Under the Federal Tort Claims Act (FTCA), the United States waives sovereign immunity and assumes liability for a tort that a federal government employee commits while acting within the scope of employment, as determined under the law of the state where the tort occurred. Because Benway traveled to Florida to benefit the FTC, the United States argues that Benway's entire trip, including the drive to where she planned to stay, occurred within the scope of employment. The Williamses insist that a traveling employee acts within the scope of employment for purposes of workers' compensation but acts outside the scope of employment for purposes of vicarious liability. Alternatively, claiming that Elizabeth Williams smelled alcohol on Benway's breath after the accident, the Williamses propose that Benway deviated from her employment.

The liability of an employer for an injury caused by a traveling employee driving a vehicle at the employer's instruction began with horse-drawn carriages and applied immediately to automobiles. Philadelphia & Reading R. Co. v. Derby, 55 U.S. 468, 485-87 (1852); Brooks v. Cent. Sainte Jeanne, 228 U.S. 688, 693 (1913) (Holmes, J.). Also long ago, an exception from liability arose for an employer whose employee

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distinctly abandons the employer's purpose during a journey. In Joel v. Morrison, 6 C.&P. 501, 172 Eng.Rep. 1338 (1834), an employee drove a cart and horse into a pedestrian. The employer attested that the accident occurred away from the employee's proper route, and the pedestrian suggested that the employee went to see a friend. The court of exchequer explained:

The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable.

172 Eng.Rep. 1338; see also Derby, 55 U.S. at 486-87.

Shortly after mass use of the automobile commenced, Florida adopted essentially the rule in Joel. Anderson v. Southern Cotton Oil Co., 73 Fla. 431 (1917), notes that:

where without the employer's knowledge or consent there is a deviation in the use of an automobile from the direct line of the employer's business solely for the purposes of the employe . . , and an injury was inflicted by negligent driving while the employe was returning to the sphere of the employer's business, the question as to whether the employer is liable should be submitted to the jury.

73 Fla. at 439-40; see Wolfe v. City of Miami, 103 Fla. 774 (1931); W. Union Tel. Co. v. Michel, 120 Fla. 511, 518-19 (1935). Hence, although modern tort cases often cite workers' compensation cases for the "traveling employee" rule and the "distinct departure" exception, both the rule and the exception arose independently for a tort caused by an employee's negligent driving on the employer's behalf.

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An employee who negligently injures a bystander while traveling for the employer acts within the scope of...