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FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 3

CASES FROM THE WEEK OF JANUARY 19, 2024

HOTEL EMPLOYEE FOUND NOT TO BE IN THE COURSE AND SCOPE OF HIS EMPLOYMENT– EVEN THOUGH THERE WAS AN ARGUMENT THAT THE DRIVER WAS MOTIVATED TO FURTHER THE DEFENDANT HOTEL’S INTEREST WHEN HE CALLED IT AROUND THE TIME OF THE ACCIDENT ON HIS PERSONAL CELL PHONE WHILE DRIVING HIS PERSONAL VEHICLE ON HIS WAY HOME, THE CALL WAS FOR HIS OWN CONVENIENCE

McKee v. Crestline Hotels and Resorts, 49 Fla. L. Weekly D124 (Fla. 4^th DCA Jan. 10, 2024):

The case arose from a hit and run accident that seriously injured the plaintiff and killed her husband.  The plaintiff sought to impose liability against the defendant employer (a hotel), asserting that the employee was acting within the course and scope of his employment.  The question presented was whether the trial court erred in concluding as a matter of law that the employee driver was not acting in the scope of his employment when he hit the plaintiff and her husband in the crosswalk. 

On the day of the incident, the defendant driver was employed as a banquet.  He worked approximately 50 hours per week as a salaried employee and did not have set hours or punch a time clock.  His duties included setting up and overseeing banquet events, and his responsibility for an event continued until everything was cleaned up.  He oversaw every part of the banquet from start to finish. 

Although the employee had total responsibility for banquets he would typically leave before the event was over and put another employee in charge.  However, the employee/defendant driver was the one accountable for banquets, and if a problem occurred during a banquet when he was not on the premises, someone on staff would call him and he would be expected to respond if he received a phone call.  There were no rules addressing how the employee should handle phone calls when away from work, however, there is an unwritten policy that the employee was expected to respond to calls from work if he could. 

Even when he was not at work the employee would often call and check with the banquet captain on whether his previous instructions were carried out.  The hotel did not compensate the employee for mileage accrued in the operation of his personal vehicle, because as the food and beverage manager explained, the employees worked on location.

On the day of the event, the employee/driver managed an event from 5 p.m. until 9 p.m.  He left the hotel at 8:45 p.m. while guests were still present.  According to the banquet captain she had no reason to speak with the employee after he left the premises and he testified that he had nothing else to do for the banquet after he left. 

The employee started driving home and was not running any errands for the hotel.  He denied making any phone calls or using his cell phone on his way home, claiming that he never called the hotel at any point. 

Halfway into his drive, the employee felt like he hit a pothole and testified he was not on his cell phone or distracted at the time of the impact.  He testified he had looked through the rearview mirror, saw nothing and did not stop. However, a witness testified that he had stopped, got out of his vehicle for a few seconds, looked back to the intersection where the plaintiffs were lying on the ground, and drove away. 

Although the employee denied making any phone calls or using his cell phone during his drive home, other evidence showed that he was using his phone.  However, the evidence was ambiguous as to whether he was using his phone to place a work-related call at the moment he struck the plaintiffs. 

A witness stated that the employee called 911 immediately or within a minute after the accident, and his phone records showed that the employee made a completed phone call of an unknown duration to the hotel at 9:14 p.m.  A traffic homicide detective was not able to identify anyone at the hotel who had received the call. 

Shortly after, three outgoing calls were placed from the employees’ number to the banquet captains’ number through different cell phone towers showing that the vehicle was traveling south when he was making calls.  The banquet captain saw missed calls from the employee and called him back immediately thinking he had forgotten to tell her something and wanted to give her new instructions. 

When describing that call in her deposition, the banquet captain testified that the employee first talked to her about his instructions about tables and chairs, but that he didn’t sound like himself on the call.  He seemed illogical, said something about hitting something and again repeated the instructions he had given her before leaving for the night, which she thought was strange. 

The plaintiff’s cell phone expert maintained that the employee/driver’s phone records were consistent with his phone being used to call the hotel’s main number from the location at the moment plaintiffs were stuck.  The expert stated that the call times in the records were from different sources and within the acceptable margin for differences in time between the two systems. 

The trial court concluded that while it could assume that the employee was calling or attempting to call the hotel at the time of the collision, the evidence was inconclusive.  The judge then concluded that the defendant was not acting in the scope of his employment. 

To impose vicarious liability on an employer, an employee’s conduct is considered within the scope of the employment only if the three-pong test is satisfied: (1) the conduct is of the kind the employee is hired to perform; (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed; and (3) the conduct is activated at least in part by a purpose to serve the master.

Florida courts do not merely use the label “employer” to impose strict liability under respondeat superior. Instead courts look to the employer’s control or the right of control over the employee at the time of the negligent act.  For an employer to be vicariously liable for the acts of his employee, the employee’s conduct must in some way further the interest of the employer or be motivated by those interests. Even unauthorized conduct may be considered within the scope of employment if it’s of some general nature that is authorized or incidental to the conduct authorized. 

Notably, the “going and coming” rule operates as a significant limitation on the imposition of vicarious liability.  Under that rule, an employee driving “to and from” work is not within the scope of his employment so as to impose liability on the employer.  That rule is based on the policy consideration of the attenuated degree of control over the employees’ actions, particularly while driving an employee-owned vehicle.  When an employee is away from the job site, the employer’s ability to control a commuting employee’s driving conduct is minimal, and traffic laws are considered the deterrent to careless driving more than the employer’s rules.

An exception to the “going and coming” rule has applied in situations where the employee was on a “special errand” for the employee.  The flip side of the “going and coming” rule occurs when an employee steps aside from his employment to accomplish some purpose of his own that is not within the scope. 

The court in this case noted that it would assume that a reasonable jury could conclude that the employee was calling or attempting to call the hotel at the time of the accident for the purpose of giving instructions regarding the ongoing event, or otherwise to further the employer’s interests.

However, the act of using a personal cell phone while driving home is not the kind of act that the employee was hired to perform as the banquet manager. Also, the allegedly tortious conduct in the case had to do with the employee’s negligent driving and not his conduct of providing instructions. The relevant conduct at issue was using a cell phone for work related purposes while driving home from work.

Neither driving, nor using a personal cell phone while driving, was an integral part of the work that the employee was hired to perform as banquet manager. He was not like a traveling sales manager who uses his car as a mobile office, and making of work-related calls while driving was not central to the kind of work he was hired to perform as a banquet manager. 

Even if he was motivated to further his employer’s interest when he placed the phone call, his decision to do so by using his personal cell phone while driving his personal vehicle on the way home, was for his own convenience. The cost of negligence in these circumstances is to be imposed on the owner of the vehicle, not the employer. 

Because the hotel had no ability to control how the employee used his cell phone in his personal car, and did not hire him to drive or perform the kind of work where he was using a cell phone while driving, the court concluded that the hotel defendant could not be responsible for the negligent driving.

COURT AFFIRMS DECISION THAT BUS DRIVER’S CONDUCT DID NOT RISE TO THE LEVEL OF “A WANTON AND WILLFUL DISREGARD OF HUMAN RIGHTS OF SAFETY” AND THEREFORE ISSUES OF FACT EXISTED AS TO THE APPLICATION OF SOVEREIGN IMMUNITY

Miami-Dade County v. Polanco, 49 Fla. L. Weekly D119 (Fla. 3^rd DCA Jan. 10, 2024):

The plaintiff was a passenger on a Miami-Dade County bus.  When the bus pulled over at a scheduled stop there was a heated exchange between him and the bus driver.  Thereafter, the plaintiff exited and crossed in front of the bus. 

The bus driver pulled away from the bus stop and in doing so struck the plaintiff.  The heated exchange between the bus driver and the plaintiff is captured on video, but the actual point at which the bus contacted him was not.

The plaintiff sued the bus driver and her employer, the County.  The County asserted it was sovereignly immune under section 768.28(9)(a) because the bus driver acted “in a manner exhibiting wanton and willful disregard of human rights, safety, or property” for which the County could not be held liable.

The County moved for summary judgment on sovereign immunity. In response, the plaintiffs presented evidence including testimony from a county employee stating that the plaintiff had walked into the bus’s blind spot before he was hit, advising that the driver would not have been able to see the plaintiff when she pulled away from the bus stop.  The trial court denied the County’s motion, and the County appealed. 

On de novo review the court found that the issue was not appropriate for summary judgment.  Because summary judgment would only be proper if a reasonable jury could conclude that the person acted with wanton and willful disregard of human rights and safety, and because that question required evidence of conduct much more reprehensible and unacceptable than mere intentional conduct, the court affirmed the denial of the summary judgment.