WILLIAM DAVID NETTLES, APPELLANT,
v.
FLORINE LINDSEY THORNTON, LEWIS KATZ AND FRIEDA M. KATZ, HIS WIFE, APPELLEES
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In this 1967 Florida appellate case, William Nettles appealed the dismissal of his amended complaint alleging that an employee of the Katz-owned lounge assaulted him while performing bar-closing duties. The court affirmed the dismissal, holding that alleging conduct occurred "in the course of employment" is insufficient without factual allegations showing the assault was necessary to carry out job duties or was employer-directed.
The court held that merely alleging an action occurred "in the course of employment" is insufficient to state a cause of action against employer-defendants. The complaint must allege sufficient facts from which the court can determine the assault was actually performed in the course of employment, such as allegations that the assault was necessary to carry out job duties or that employers instructed the employee to assault the plaintiff.
“We do not feel that the mere alleging that an action of an employee "was in the course of her employment," necessarily makes it so. The pleader should allege sufficient facts from which such fact could be determined.”
Establishes the core holding that conclusory allegations of scope of employment are insufficient; factual pleading is required.
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Join FLexlaw to unlock all legal intelligencePlaintiff Nettles was a customer in a lounge owned and operated by Lewis and Frieda Katz in Jacksonville. Florine Lindsey Thornton, a barmaid or waitr…
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This is an appeal from an order dismissing the appellant’s amended complaint, with *45prejudice, as to the appellees-defendants Lewis Katz and Frieda M. Katz.
The second amended complaint alleged, inter alia, that the defendants, Lewis and Frieda M. Katz, the appellees herein, were the owners and operators of a lounge in Jacksonville where drinks are served. That the defendant, Florine Lindsey Thornton, who did not appeal, was a barmaid or waitress employed by the appellees in the operation of said lounge. It was further alleged that in the course of her employment, the defendant Thornton assisted in closing the bar by clearing off the tables, cleaning the ashtrays and in transferring customers’ drinks from glass containers to paper cups, so the customers could take them with them if they desired. That on the night in question, at or about 1:30 A.M. the plaintiff appellant was a customer in said lounge and that the defendant, Thornton :
“in the course of her employment for the Defendants, KATZ, in cleaning off the Plaintiff’s table and pouring Plaintiff’s drink from a glass into a paper cup so that he might take it with him as the bar was then closing, unlawfully assaulted the Plaintiff with a glass or ashtray, striking him in the head and cutting his ear in half. That said assault was done maliciously and without just cause or provocation.”
The foregoing statement contains the only allegations pertaining to the alleged assault. We do not feel that the mere alleging that an action of an employee “was in the course of her employment,” necessarily makes it so. The pleader should allege sufficient facts from which such fact could be determined. The fact that the complaint charges that the assault was malicious and without provocation, and without alleging that such assault was necessary on the part of the defendant Thornton to carry out her duties, or that she was instructed by her employers to assault the appellant, we think renders the complaint deficient in the necessary allegations to state a cause of action against the employer-defendants and that the trial court was correct in so holding.
We distinguish the cases cited by appellant as not applicable to the facts in the case sub judice.1
For these reasons, the order appealed is Affirmed.
WIGGINTON, Acting C. J., and SPEC-TOR, J., concur.
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Donesta S. LAY and Larry R. Lay v. Roux Labs., Inc., 379 So. 2d 451 (Fla. 1st DCA 1980)…legations concerning the employer’s liability, we find that the complaint, considered as a whole, states sufficient facts from which it can be inferred that the acts were performed in the scope and course of Kremer’s employment. Nettles v. Thornton, 198 So. 2d 44 (Fla. 1st DCA 1967) is distinguishable because in that case there were no factual allegations showing any connection between the barmaid’s duty to clean off the table and the resulting tort. Affirmed in part and reversed in part for further proceed…
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Perez v. Zazo, 498 So. 2d 463 (Fla. 3d DCA 1986)…ing Rodriguez to have been served by the senseless, inexplicable act which injured Zazo. See Western Union Telegraph Co. v. Hill, 67 F. 2d 487 (5th Cir.1933); Dejesus v. Jefferson Stores, Inc., 383 So. 2d 274 (Fla. 3d DCA 1980); Nettles v. Thornton, 198 So. 2d 44 (Fla. 1st DCA 1967). The only aspect of Rodriguez’s job which the appellee even contends may have been implicated by the stabbing was his asserted responsibility to “handle” tenants’ complaints about the premises. But even making the quite speculat…1 / 2
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Morton Friedman v. Mut. Broad. Sys., Inc., 380 So. 2d 1313 (Fla. 3d DCA 1980)…business or was within the responsibility of the duties King was to exercise for the employer. In this connection, see: Reece v. Ebersbach, 152 Fla. 763, 9 So. 2d 805 (1942); City of Miami v. Simpson, 172 So. 2d 435 (Fla.1965); Nettles v. Thornton, 198 So. 2d 44 (Fla.1st DCA 1967); Jones v. City of Hialeah, 368 So. 2d 398 (Fla.3d DCA 1979). The Supreme Court, in considering the issue of liability of the master for the acts of the servant, stated as follows in City of Miami v. Simpson, supra: “. . . The lia…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City of Green Cove Springs v. Donaldson, 348 F.2d 197 (5th Cir. 1965)