Williams v. Feather Sound, Inc., 79-1780

• Decision Date: 16 July 1980
• Docket Number: No. 79-1780,79-1780
• Citation: 386 So.2d 1238
• Parties: Lee WILLIAMS, Appellant, v. FEATHER SOUND, INC., a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1238

386 So.2d 1238

Lee WILLIAMS, Appellant, v. FEATHER SOUND, INC., a Florida Corporation, Appellee.

No. 79-1780.

District Court of Appeal of Florida, Second District.

July 16, 1980.

Rehearing Denied Aug. 27, 1980.

James Stewart and Eric S. Ruff of Law Offices of William Randolph Klein, Sarasota, for appellant.

W. Robert Mann and Donald Paul Greiwe of Mann & Fay, Chartered, Bradenton, for appellee.

GRIMES, Judge.

This appeal from a summary judgment in favor of appellee Feather Sound, Inc., involves an aspect of the doctrine of negligent hiring.

Lee Williams brought suit against Feather Sound for damages suffered as a result of an assault upon her by James Carter, one of Feather Sound's employees. The depositions on file reflect that on April 5, 1978, Carter applied for a job at Feather Sound, a developer and manager of condominiums and residential home sites. In answering a newspaper advertisement, Carter initially applied for a laborer's position involving outside maintenance duties such as mowing, weeding and edging. Daryl Rejko, who was a golf course superintendent for Feather Sound, interviewed Carter. Rejko has no instructions concerning how he should interview job applicants, but Feather Sound's bookkeeping department had provided him with an application form. The form did not contain a request for information concerning the applicant's past criminal or psychiatric treatment history. Rejko did not ask Carter whether he had been arrested, convicted or placed on probation, and Carter did not volunteer any information on this point. Rejko further testified that while he had authority to make long distance telephone calls to check references given by job applicants, he did not check any of the three references Carter gave him. Rejko also did not contact either of the two prior employers Carter listed on his job application form.

After performing outside labor for Feather Sound for a period of three weeks, Carter's duties changed as a result of a departmental transfer. Thereafter, Carter was assigned work inside the condominium townhouse units under a new supervisor who was in charge of interior maintenance of townhouses. Carter began to wear a utility belt holding screwdrivers, a hammer, a knife and other related items. He had access to passkeys to the townhouses and permission to use them in order to gain entrance so as to make necessary repairs.

On April 27, 1978, Carter appeared at the door of a condominium unit where Miss Williams was a guest and alone at the time. Upon hearing the doorbell ring, Miss Williams saw Carter standing outside with his utility belt on. He told her that he was to check on the apartment and make sure the screens were intact and the windows clean. Miss Williams admitted him to the apartment where he worked for about twenty minutes and then left without incident. Four days later, Carter went back to the same unit and, according to him, entered through a back door having found it ajar. Miss Williams claimed, however, that Carter said he had entered using a passkey. In any event, Carter assaulted Miss Williams by placing his hands upon her and forcing her to the floor. She claimed he put a knife to her throat, but he denied it.

Upon investigation, it was discovered that in August, 1971, the state had charged Carter with breaking and entering a residence in Bardenton, and assault to commit murder in the second degree. Carter pled guilty to these charges, and the court placed him on seven years probation. Two and one-half months of that time he spent at G. Pierce Wood Memorial Hospital in Arcadia for psychiatric care. In early 1978, prior to April, Carter was arrested for "night prowling". He also pled guilty to that charge and received a fine. There is no indication that Feather Sound had any knowledge of Carter's criminal or psychiatric record.

In her appeal, Miss Williams does not suggest that Carter was acting within the scope of his employment at Feather Sound. Rather, she contends that Feather Sound was negligent in employing Carter as a workman having access to the townhouse units without first checking his background. She argues that had Feather Sound made such an inquiry, it would have become evident that Carter was a threat to the safety of the occupants of the townhouses.

Most jurisdictions, including Florida, ¹ recognize that independent of the doctrine of respondeat superior, an employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others. ² Many of these cases involve situations in which the employer was aware of the employee's propensity for violence prior to the time that he committed the tortious assault. ³ The more difficult question, which this case presents, is what, if any, responsibility does the employer have to try to learn pertinent facts concerning his employee's character. Some courts hold the employer chargeable with the knowledge that he could have obtained upon reasonable investigation, ⁴ while others seem to hold that an employer is only responsible for his actual prior knowledge of the employee's propensity for violence. ⁵ The latter view appears to put a premium upon failing to make any inquiry whatsoever.

The rule in Florida is not altogether clear. In one case, the supreme court reversed the dismissal of a complaint which alleged that an apartment house owner was liable for an assault by his caretaker upon one of the occupants because of "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." ⁶ Yet, a few months later, in exonerating a common carrier from liability for an assault by one of...