Using Vicarious Liability to Defeat Employer Negligence Claims
Using Vicarious Liability to Defeat Employer Negligence Claims
In lawsuits involving commercial trucking accidents, plaintiffs frequently sue the driver’s employer for vicarious liability (respondeat superior and/or dangerous instrumentality doctrine), as well as for negligent hiring, retention and supervision. However, when the employer admits vicarious liability for its driver’s negligence (if any), the negligence theories generally are no longer viable and should not be presented to the jury.
In Florida, the torts of negligent retention and supervision were first recognized in Mallory v. O’Neil, 69 So. 2d 313 (Fla. 1954). Building on Mallory, later courts have recognized a cause of action for negligent hiring.[1] Each of these theories apply only to situations where an employee’s tortious conduct occurs outside the course and scope of employment.[2] For example, they are available when an employer fails to investigate an employee’s violent history; the employee’s work brings him into contact with a customer; and the employee on his own time later assaults the customer.[3] Conversely, when an employee commits a tort within the course and scope of employment, the employer is automatically vicariously liable under the doctrine of respondeat superior.[4]
Starting in the 1970s, courts within Florida have ruled that where a defendant admits vicarious liability, the plaintiff is not permitted to proceed against the employer under negligence theories for the same conduct. The reasoning behind this rule is that where vicarious liability already is available, damages from the employer’s own negligence add nothing to the case, and the evidence necessary to prove employer negligence could unfairly prejudice the defendant. Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1978) is the seminal case on this issue. The Clooney court stated:
Justice requires, however, that a caveat be imposed on the use of any of the theories we have mentioned [negligent hiring, negligent retention and negligent entrustment]. Where these theories impose no additional liability in a motor vehicle accident case, a trial court should not allow them to be presented to the jury. The reason for this is a very practical one: Under these theories the past driving record of the driver will of necessity be before the jury, so the culpability of the entrusting party can be determined.
Here Counts II through V impose no additional liability on Anderson Mfg. Anderson has not denied ownership or permitted use of the truck driven by Geeting; therefore, it is liable for Geeting’s negligence under the vicarious liability doctrine. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Since the stricken counts impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants. See Armenta v. Churchill, supra.[i]
Where a plaintiff seeks to pursue claims for negligence against the employer despite an admission of vicarious liability, the employer is entitled to summary judgment, if not dismissal, on those claims.[6] In fact, the court in Delaurentos v. Peguero, 47 So. 3d 879 (Fla. 3d DCA 2010) refused to permit even discovery on negligent hiring, retention and supervision where vicarious liability was available:
On the authority of the Mallory decision, we conclude that the request for production of these documents is outside the scope of permissible discovery. Because the County has conceded that the officer’s acts took place during the course and scope of employment, the only allowable theory of liability against the County is respondeat superior.[7]
Federal courts interpreting Florida law similarly have ruled that a plaintiff cannot pursue a negligence claim when vicarious liability applies.[8] Practitioners can seek disposition of the negligence claims as soon as a vicarious liability relationship is admitted.
Originally published in The Trial Advocate, a publication of The Florida Defense Lawyers Association, Volume 39. Number 2. June 2020.
[1] Malicki v. Doe, 814 So. 2d 347, 361 (Fla. 2002).
[2] E.g. Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA 1986).
[3] E.g. Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744, 751 (Fla. 1st DCA 1991); Williams v. Feather Sound, Inc., 386 So. 2d 1238, 1241 (Fla. 2d DCA 1980).
[4] Id.
[5] Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. 2d DCA 1978)(emphasis added); see generally Walter G. Latimer, Liability of the Commercial Driver: Negligent Hiring Meets the Dangerous Instrumentality Doctrine, 75 Florida Bar Journal 42, 43 (Feb. 2001) (“the burgeoning body of law developing under the theory of negligent hiring is largely irrelevant with respect to the professional driver. The employer, as the vehicle’s owner, is already responsible for the operation of its dangerous instrumentality.”).
[6] See Clooney, 352 So. 2d at 1220. Several trial court orders on this issue can be found online, including the following: Pierce v. Blake’s Towing & Transport, Inc., No. 50-2017-CA-0009230XXXXMB, 2018 WL 10498214 (Fla. 15th Jud. Cir. Nov. 28, 2018); King v. Kraft Foods Global, Inc., No. 162011CA000436, 2015 WL 5366138 (Fla. 4th Jud. Cir. Aug. 4. 2015); Haas v. Paynter, No. 2012 CA 4053 NC, 2014 WL 12611400 (Fla. 12th Jud. Cir. Dec. 7, 2014); Ladue v. Margie Wood Trucking, Inc., No. CA05-0005, 2007 WL 6947863 (Fla. 7th Jud. Cir. 2007); Courson v. Cason, No. 03-560-CA 2004 WL 5899193 (Fla. 4th Jud. Cir. June 18, 2004).
[7] Delaurentos v. Peguero, 47 So. 3d 879, 882 (Fla. 3d DCA 2010). (emphasis added)
[8] E.g. Buckler v. Israel, 680 Fed. Appx. 831, 834 (11th Cir. Feb. 23, 2017) (affirming summary judgment on claims of negligent hiring, retention and supervision); Reyes v. Werner Enterprises, Inc., No. 16021883-CIV-GOODMAN, 2017 WL 3776826, at *1 (S.D. Fla. Aug. 30, 2017) (granting summary judgment); Dewit v. UPS Ground Freight, Inc., No. 1:16cv36-MW/CAS, 2017 WL 2903347 (N.D. Fla. June 16, 2017) (“Under Florida law, if a party has admitted that it would be vicariously liable for the negligence of its driver, derivative-liability claims are improper where those claims impose no additional liability.”); Slone v. Judd, No. 8:09-CV-1175-T-27TGW, 2011 WL 1124618, at *20 (M.D. Fla. March 25, 2011) (“Because [the employer] Judd concedes that all of the conduct complained of took pace during the course and scope of the officer’s employment, the only allowable theory of liability against Sheriff Judd is respondeat superior.”) (citation omitted); Burchett v. Bibbs, No. 5:01-cv-368-Oc-10GRJ, 2003 WL 27381587, at *2 (M.D. Fla. April 24, 2003) (“Because it is undisputed in this case that Bibbs was acting in the course and scope of her employment as a truck driver for the Defendant, the Defendant contends that the Plaintiffs’ claim for negligent hiring is due to be dismissed. The Defendant is correct.”).
