BEVERLY C. MARTIN, AS ADMINISTRATRIX OF THE ESTATE OF JOYCE CHESWORTH ATCHLEY, APPELLANT,
v.
UNITED SECURITY SERVICES, INC., APPELLEE
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The court affirmed summary judgment for a security company where an employee committed rape and murder off the employer's premises. The court held that the employee had stepped away from his employment duties at the time of the criminal acts, precluding vicarious liability.
The court held that summary judgment was proper because the employee had stepped away from the employer's business at the time of the criminal attack, which was unrelated to his duties as a guard and motivated by the employee's personal interests rather than the employer's.
[1] An employer is not liable for the acts of an employee when the employee's actions are unrelated to their employment duties and motivated by personal interests.
[2] An employee steps away from the employer's business when their actions are not in furtherance of the employer's interests.
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Join FLexlaw to unlock all legal intelligence“the employee had "stepped away" from appellee's business at the time of the criminal attack upon Atchley”
Establishes the key legal principle that employers are not liable when employees commit crimes while stepped away from their employment duties
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Join FLexlaw to unlock all legal intelligenceA security guard employed by the appellee went to a resident's home to call his employer about a late relief guard, left the home, and returned moment…
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PER CURIAM.
The question on this appeal is whether the court erred in granting summary judgment in favor of appellee as to Count Two of the complaint. Count One alleged negligence on the part of appellee in the employment of a security guard. Count Two sought to impose liability upon the grounds that the security guard was acting within the scope of his employment at the time he raped and killed appellant’s decedent. The trial court granted summary judgment as to Count Two, finding there was no genuine issue of material fact and that the appel-lee’s security guard at the time was not acting within the scope of his employment. We agree with the trial court and affirm.
The record reveals that appellee’s employee, a security guard, originally went to the home of appellant’s decedent, Joyce Atchley, to call his employer and ask why the relief guard had not yet arrived at the apartment complex to which he was assigned. He then left Atchley’s home, but returned a few moments later to call his wife and tell her he was delayed. It was at this point that the rape and murder took place. The employee, Turner, was subsequently convicted of second degree murder and sentenced for the offenses.
On this record, we have no difficulty in finding that the employee had “stepped away” from appellee’s business at the time of the criminal attack upon Atchley. See Weiss v. Jacobson, 62 So. 2d 904 (Fla.1953); Reina v. Metropolitan Dade County, 285 So. 2d 648 (Fla. 3rd DCA 1973), cert. discharged 304 So. 2d 101 (Fla.1974). It seems clear that the attack upon Atchley was unrelated to the employee’s duties as a guard and that the motive for the attack was the furtherance of the employee’s interests, not appellees. In these circumstances, the master cannot be held liable for the servant’s acts. See Green Cove Springs v. Donaldson, 384 F. 2d 197 (5th Cir. 1965).
AFFIRMED.
MILLS, C. J., and LARRY G. SMITH, J., concur. ERVIN, J., specially concurs.
ERVIN, Judge,
specially concurring.
I concur in the opinion of the majority solely on the basis of the pleadings as drafted under Count II, which alleged that the employee “was acting within the scope of his employment with the defendant.” Aside from the pleaded issue of respondeat superior, an issue which was not pleaded is whether an implied contractual relationship exists between the employer and the person assaulted, which may result in tort liability to the employer. Such a theory has been permitted in other jurisdictions under particular circumstances. See particularly Stone v. William M. Eisen Co., 219 N.Y. 205, 114 N.E. 44, L.R.A.1918B 291 (1916), and cases collected at annot., 34 ALR2d 372, 384, § 7 (1954). That question is of course not decided by our opinion and in my view remains an open one.
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Donesta S. LAY and Larry R. Lay v. Roux Labs., Inc., 379 So. 2d 451 (Fla. 1st DCA 1980)…fliction of the tort and that the motive was unrelated to the employee’s duties, but rather was in the furtherance of the employee’s interests; then, the master cannot be held liable for the servant’s act. Martin v. United Securities Services, Inc., 373 So. 2d 720 (Fla. 1st DCA 1979). Generally, it is recognized that the question of whether one was in the scope of employment is normally a jury question. E. g., Gold Coast Parking, Inc. v. Brownlow, 362 So. 2d 288, 291-292 (Fla. 3d DCA 1978), cert. dismissed, 3…
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Nazareth v. Herndon Ambulance Serv., Inc., 467 So. 2d 1076 (Fla. 5th DCA 1985)…of the employer. See Weiss v. Jacobson, 62 So. 2d 904 (Fla.1953); De Jesus v. Jefferson Stores, Inc., 383 So. 2d 274 (Fla. 3d DCA 1980); Lay v. Roux Laboratories, Inc., 379 So. 2d 451, (Fla. 1st DCA 1980); Martin v. United Securities Services, Inc., 373 So. 2d 720 (Fla. 1st DCA 1979); Andrews v. Norvell, 65 Ga.App. 241, 15 S.E. 2d 808 (1941); W. Prosser, Torts, § 70 at 464, 465 (4th ed. 1971). However, some exceptions to this rule appear in the case law. One is summarized by Restatement (Second) of Agency §…
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Jacquelyn Hennagan v. Dep't of Hwy. Safety & Motor Vehicles, 467 So. 2d 748 (Fla. 1st DCA 1985)…he infliction of the tort and that the motive was unrelated to the employee’s duties, but rather was in furtherance of the employee's interests; then, the master cannot be held liable for the servant’s act. Martin v. United Securities Service, Inc., 373 So. 2d 720 (Fla. 1st DCA 1979). Taking the allegations of the complaint as true, as we must on a motion to dismiss, it cannot be said that the factual situation alleged as the basis for the various torts claimed is outside the scope of the officer’s employmen…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weiss v. Jacobson, 62 So. 2d 904 (Fla. 1953)
- Reina v. Metro. Dade Cnty., 285 So. 2d 648 (Fla. 3d DCA 1973)
- Nicholson v. ELI Lilly & Co., 285 So. 2d 648 (Fla. 3d DCA 1973)
- Reina v. Metro. Dade Cnty., 304 So. 2d 101 (Fla. 1974)