DEFENDING FLORIDA EMPLOYERS: THE DOCTRINE OF RESPONDEAT SUPERIOR AND VICARIOUS LIABILITY

Respondeat superior is a common law doctrine which provides that an employer may be held liable for the actions of its employee if the employee was acting within the scope of his or her employment when committing the tortious or criminal act. Many businesses find themselves involved in litigation due to the actions of their employees, whether these actions are intentional or negligent. However, because the doctrine of respondeat superior requires the conduct of the employee to have been within the scope of employment, the employer often has a valid defense to any alleged third-party or vicarious liability. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The doctrine of respondeat superior developed historically to hold the master responsible for the acts of his servant because the master alone is able to direct the servant. This liability of the master or principal is sometimes referred to as vicarious, transferred, derivative or imputed liability. Where the relationship of master-servant, principal-agent, or employer-employee exists, the doctrine is referred to as “respondeat superior.” 1 Modern Tort Law: Liability and Litigation § 7:2 (2d ed.). Therefore, the terms respondeat superior and vicarious liability are often used interchangeably when a principal or employer is sought to be held liable for the acts of an agent or employee.

However, an employer is only vicariously liable for damages resulting from the tortious acts of an employee when these acts were committed within the scope of his or her employment. This is based upon the long-recognized public policy that victims injured by the tortious or criminal acts of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer. “Under the doctrine of respondent superior, an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.” Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So. 2d 353 (Fla. 3d DCA 2001). For the conduct of an employee to be considered within the scope of employment, “Florida law requires that the conduct (1) must have been the kind for which the employee was employed to perform; (2) must have occurred within the time and space limits of his employment; and (3) must have been activated at least in part by a purpose to serve the employment.” Spencer v. Assurance Co. of Am., 39 F.3d 1146 (11th Cir.1994).

Businesses sometimes find themselves in litigation due to an employee committing a criminal or tortious act, such as sexual assault or battery. Litigants often include the employer as an additional source of possible recovery, without due consideration of the applicability of the doctrine of respondeat superior. For example, as one federal court in Florida explained, “generally, sexual assaults and batteries by employees are held to be outside the scope of an employee’s employment and, therefore, insufficient to impose vicarious liability on the employer.’” Doe v. St. John’s, 997 F. Supp. 2d 1279 (M.D. Fla. 2014). There is an exception, however, to the scope of employment requirement. “[C]ourts have recognized an exception where the employee/tortfeasor was assisted in accomplishing the tort by the existence of the employee/employer relationship.” Doe v. St. John’s, 997 F. Supp. 2d 1279 (M.D. Fla. 2014). Whether the employee was assisted by the employment relationship in committing tortious or criminal acts is a fact intensive inquiry.

Peter Mavrick is a Fort Lauderdale employment lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.