LUIS MANRIQUE, APPELLANT,
v.
BOB'S PLUMBING COMPANY, A FLORIDA CORPORATION, APPELLEE

Fla. 3d DCA | 1991-01-29
No. 90-859
Before SCHWARTZ, C.J., and BASKIN and COPE, JJ.
573 So. 2d 422 Florida District Court of Appeal, Third District (1991)

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Synopsis

Luis Manrique appealed the dismissal of his amended complaint against Bob's Plumbing Company for injuries allegedly caused by an employee. The court affirmed the dismissal, holding that the employee's actions were outside the scope of employment, there was no viable claim for negligent retention, and the allegations failed to state a cause of action under Restatement section 317.


Holding

The dismissal was proper for three independent reasons: (1) the employee's actions were beyond the course and scope of employment, defeating vicarious liability; (2) Manrique was not within the zone of foreseeable risk created by the employment, precluding a negligent retention claim; and (3) the allegations did not state a cause of action under Restatement section 317.


Headnotes

[1] An employer is not vicariously liable for the actions of an employee acting outside the course and scope of employment.

[2] A claim for negligent retention requires the plaintiff to be within the zone of foreseeable risk created by the employment.

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Key Quotes

“the actions of the employee of Bob's Plumbing were beyond the course and scope of his employment, and accordingly the claim for vicarious liability on the part of Bob's Plumbing was correctly dismissed”

Establishes that the employee's conduct fell outside the scope of employment, defeating vicarious liability

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Facts & Procedural History

An employee of Bob's Plumbing Company committed actions that injured Luis Manrique. Manrique sued Bob's Plumbing for vicarious liability, negligent re…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Luis Manrique appeals the dismissal with prejudice of his amended complaint against Bob’s Plumbing Company. We conclude that the dismissal was entirely correct. First, the actions of the employee of Bob’s Plumbing were beyond the course and scope of his employment, and accordingly the claim for vicarious liability on the part of Bob’s Plumbing was correctly dismissed. See Reina v. Metropolitan Dade County, 285 So. 2d 648 (Fla. 3d DCA 1973), writ discharged, 304 So. 2d 101 (Fla.1974). Second, on the facts alleged there was no claim for negligent retention of the employee, as plaintiff was not within the zone of foreseeable risk created by the employment. See Watson v. City of Hialeah, 552 So. 2d 1146 (Fla. 3d DCA 1989); Garcia v. Duffy, 492 So. 2d 435, 440 (Fla. 2d DCA 1986). Finally, plaintiff also alleged that the employer had failed to control the conduct of its servant, thus breaching a duty recognized under Restatement (Second) of Torts section 317. Assuming arguendo that this claim is not subsumed within the claim for negligent retention, the allegations of the amended complaint do not state a cause of action under section 317.*

Affirmed.

*

Bob's Plumbing argues that section 317 is the foundation of the cause of action for negligent hiring and retention, see Garcia v. Duffy, 492 So. 2d at 438; see also Mallory v. O'Neil, 69 So. 2d 313, 315 (Fla.1954) (recognizing § 317), and is subsumed therein. Bob’s contends that as a matter of law, a claim under section 317 cannot be maintained in addition to a claim for negligent hiring and retention, but instead constitutes a single cause of action. This court has on one occasion treated the two as separate causes of action, but without discussing the point. See Bennett v. Godfather’s Pizza, Inc., 570 So. 2d 1351, 1354 (Fla. 3d DCA 1990). Because no cause of action was stated under any formulation, we need not resolve the issue here.


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