The Week in Torts – Cases from the Week of May 11, 2018

FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 19

CASES FROM THE WEEK OF MAY 11, 2018

ERROR TO DENY A MOTION FOR SANCTIONS UNDER SECTION 57.105 ON THE BASIS THAT IT WAS NOT SERVED IN COMPLIANCE WITH EMAIL SERVICE REQUIREMENTS–THOSE REQUIREMENTS DO NOT APPLY TO SECTION 57.105 MOTIONS.

Denino v. Abbate, 43 Fla. L. Weekly D1020 (Fla. 2^nd DCA May 4, 2018):

The defendants in this fraudulent deed conveyance case, served a section 57.105(4) statutory notice (the safe harbor notice) to plaintiff’s counsel, via email. After 21 days had passed, the plaintiff moved to amend the operative complaint. The defendants then moved for statutory sanctions under section 57.105.

Plaintiff asserted that defendants could not prevail because the motion for sanctions was not served in compliance with strict email service requirements set forth in the Florida Rule of Judicial Administration 2.516. The argument was based on the Fourth District’s decision in Matte v. Caplan, 140 So.3d 686 (Fla. 4^th DCA 2014) which applied the email service requirements of Rule 2.516 to the service of a 57.105 motion.

However, the Second District held that the email service requirements of Rule 2.516(b)(1) do not apply to a motion filed as part of section 57.105(4) (because the rule excludes documents not filed in any court proceedings). Thus, the trial court erred in denying an award of sanctions to the defendant. The court certified conflict with the Fourth District in Matte.

ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT EMPLOYER ON VICARIOUS LIABILITY FOR INTENTIONAL TORTS–NO EVIDENCE THAT EMPLOYEE’S CONDUCT WAS NOT UNDERTAKEN IN PERFORMANCE OF HIS JOB DUTIES.

Fields v. The Devereaux Foundation, 43 Fla. L. Weekly D1019 (Fla. 2^nd DCA May 4, 2018):

Plaintiff brought an action against the defendant for assault, battery, abuse of process, intentional infliction of emotional distress, negligent hiring and negligent supervision. The undisputed facts from the summary judgment were that the plaintiff is the paternal grandmother of a juvenile removed from his parents’ care, but later reunited with his father who was living with the plaintiff at her home.

The child’s mother sought and was granted visitation with the defendant, an organization that provides families with behavioral and social services, and the one hired to facilitate the visitations. The defendant named an employee as case manager, and one of his duties was to conduct periodic home visits.

The employee not only failed to do the home visits, but he submitted fake documents suggesting that he had done them. Then, when the employee came to do a court ordered visitation with the child’s mother, the plaintiff refused because he was unable to provide anything to show her that he was actually authorized to do so.

When the plaintiff resisted, the case worker grew frustrated and began acting aggressively, cocking his fist as if he were going to strike her. This caused her to fall into a door frame and be injured.

The defendant moved for summary judgment arguing it could not be vicariously liable for the assault and battery, because the employee was acting outside the course and scope of his employment. However, the defendant offered no affidavits or other summary judgment evidence that bore either on the precise details of the conduct during the incident, or on the scope of his employment. Instead, the defendant simply argued that there was no evidence that the case worker was acting in the course and scope of his employment.

The court reminded us that it is the movant’s burden to prove the non-existence of a genuine issue of material fact. Once a movant carries that initial burden, the burden then shifts to the party opposing summary judgment to show that there was an issue remaining to be tried.

The only summary judgment issue that the defendant argued in the trial court concerning the plaintiff’s assault and battery claims, was that it could not be vicariously liable for the intentional torts when the employee is off duty or outside the course and scope of the employee’s employment.

However, there can be a showing that an intentional tort is committed within the course and scope of employment, if the conduct of the employee is of the kind he was employed to perform, occurs substantially within the time and space limits authorized or required by the work to be performed, and is activated at least in part by a purpose to serve the master.

In this case, the defendant failed to file any answer to show that the case worker’s conduct was not as the plaintiff said it was, or that his job duties were something else. Thus, it was error to enter summary judgment for the defendant.