When will an employee be considered to be acting within the scope of their employment for the purposes of the respondeat superior doctrine?

Under the doctrine of respondeat 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. Nazareth v. Herndon Ambulance Serv., Inc., 467 So.2d 1076, 1078 (Fla. 5th DCA 1985); see Perez v. Zazo, 498 So.2d 463, 465 (Fla. 3d DCA 1986)("It is entirely clear that responsibility for the intentional wrongful acts of a servant-employee may be visited upon his master-employer under the doctrine of respondeat superior only when that conduct in some way furthers the interests of the master or is at least

[783 So.2d 357]

motivated by a purpose to serve those interests, rather than the employee's own.")(footnote omitted). An employee's conduct is within the scope of his employment, where (1) the conduct is of the kind he was employed to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part by a purpose to serve the master. Sussman v. Florida E. Coast Props., Inc., 557 So.2d 74, 75-76 (Fla. 3d DCA 1990). "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." Nazareth, 467 So.2d at 1078. An exception may exist where the tortfeasor was assisted in accomplishing the tort by virtue of the employer/employee relationship. Id.; compare Hennagan v. Department of High. Saf. & Motor Veh., 467 So.2d 748 (Fla. 1st DCA 1985), with Agriturf Mgmt., Inc. v. Roe, 656 So.2d 954 (Fla. 2d DCA 1995).

In this case, the sexual assault did not occur on Church property, and the record does not support a finding that Pacheco's criminal act against L.M. constituted the kind of conduct he was employed to perform, or that he was in any way motivated by his desire to serve the Church. See, e.g., N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 599 (Okla.1999)(holding that minister's deviant sexual conduct with children was not within his scope of employment or in furtherance of national organization's business: "Ministers should not molest children.

[783 So.2d 358]

When they do, it is not a part of the minister's duty nor customary within the business of the congregation. Rather than increasing membership, the conduct would assuredly result in persons spurning rather than accepting a faith condoning the abhorrent behavior.")(footnote omitted); Doe v. Hartford Roman Catholic Diocesan Corp., 45 Conn.Supp. 388, 716 A.2d 960, 964 (1998)(finding that case involving minor sexually abused by priest who was supposed to be counseling her represents "exceptional case," where the employee's act was clearly a digression from duty and beyond the scope of employment). On the contrary, the record establishes that Pacheco's purpose in arranging the meeting that day was to satisfy his personal interests, not to further the Church's objectives. Regardless of the stated reason for the meeting between Pacheco and L.M., it is undisputed that no counseling occurred on the day of the crime. While Pacheco may have had access to L.M. because of his position as the Church pastor, whom L.M. and her family had become friends with over time, he was not engaging in authorized acts or serving the interests of the Church during the time he tried to seduce her or on the day he raped her. See Konkle v. Henson, 672 N.E.2d 450, 457 (Ind.Ct.App.1996). The sexual assault was an independent, self-serving act by Pacheco; an act that he knew was wrong to commit and that the Church would surely have tried to prevent had it known of his plans.

We agree with the Church that Pacheco's sexual assault of L.M. did not occur within the scope of his employment. Accordingly, we find, as a matter of law, that the Church cannot be held vicariously liable for Pacheco's criminal act.

An employer's liability for an employee's intentional acts may arise when the acts are “within the real or apparent scope” of employment. Weiss v. Jacobson, 62 So.2d 904, 906 (Fla.1953) (emphasis added). Therefore, to obtain summary judgment, Publix had the burden to conclusively negate Appellant's allegation that Blanton had acted within the course and scope of his employment when he battered Appellant. Lawrence v. Pep Boys–Manny Moe & Jack, Inc., 842 So.2d 303, 304–05 (Fla. 5th DCA 2003). “Conduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master. The purpose of the employee's act, rather than the method of performance thereof, is said to be the important consideration.” Hennagan v. Dep't of Highway Safety & Motor Vehicles, 467 So.2d 748, 751 (Fla. 1st DCA 1985) (emphasis added),¹cited with approval in McGhee v. Volusia Cnty., 679 So.2d 729, 732 (Fla.1996). Stated another way, only when the employee “steps aside from his employment to ... accomplish some purpose of his own,” is the act not within the scope of employment. City of Miami v. Simpson, 172 So.2d 435, 437 (Fla.1965). This is generally a question of fact for the jury. Id.

It is undisputed here that the altercation occurred on Publix's premises while Blanton was engaged in Publix's business. The sole disputed issue is whether Publix conclusively negated the contention that Blanton's purpose (not his method) was, at least in part, to serve Publix. Blanton acknowledged in his deposition that the “entire encounter” was motivated by a purpose to serve his employer. Publix asserted nevertheless, that Blanton's motive for the push itself was personal—the defense of his person from an attack by a customer. Even assuming that this is the only inference that may be drawn from the evidence, it does not support the trial court's conclusion. An employer has an interest in protecting its employees from attack, at least to the same extent as it has in protecting its merchandise and property. The courts have consistently held that battery by an employee in protecting the employer's property is within the scope of employment. See, e.g., Stinson v. Prevatt, 84 Fla. 416, 94 So. 656, 659 (1922) (where employee shot plaintiff, jury should decide whether employee's purpose was to protect employer's employees from solicitation by employer's competitor or “maliciously in pursuit of his own purpose”); Valeo v. E. Coast Furniture Co., 95 So.3d 921, 925 (Fla. 4th DCA 2012) (employee's motivation was jury question where employee testified he attacked plaintiff with padlock because he thought he was about to be robbed); Parsons v. Weinstein Enters., Inc., 387 So.2d 1044, 1045–46 (Fla. 3d DCA 1980) (whether employees' actions in chasing and beating with clubs bar patron they believed damaged bar property were within scope of employment was question of fact for jury); Lay v. Roux Labs., Inc., 379 So.2d 451, 453 (Fla. 1st DCA 1980) (jury should resolve whether parking space dispute arose from employee's motivation to secure space for himself or protect designated parking space from outsiders for employer's benefit). In this case, it was the business of the employer that placed

[138 So.3d 556]

the employee in harm's way.²

The record here also supports the conclusion that Blanton did not act in self-defense but instead overreacted to Appellant's complaint. If the jury accepts this version of the facts, it can still conclude that Blanton's loss of control was motivated by his purpose to serve Publix. In other words, although his method might have been inappropriate, his purpose was, nevertheless, to serve his employer. In business related disputes such as this one, particularly when they occur on the employer's premises, the courts have repeatedly concluded that the employee's purpose in committing a battery is a jury question. See, e.g., Rivas v. Nationwide Pers. Sec. Corp., 559 So.2d 668, 670 (Fla. 3d DCA 1990) (where supermarket security guard in physical altercation with store manager struck intervening store employee, question of fact whether guard was acting within scope of employment because “assault and battery sued upon arose out of a job dispute and was therefore within the scope of [the guard's] employment ...”); Gonpere Corp. v. Rebull, 440 So.2d 1307, 1307 (Fla. 3d DCA 1983) (whether building manager's act of shooting two tenants was within scope of employment was question of fact for jury where shooting resulted from dispute over eviction notice); Gordils v. DeVilliers, 402 So.2d 1313 (Fla. 4th DCA 1981) (where nightclub entertainer battered patron during dispute on premises, scope of employment was for jury); Dye v. Reichard, 183 So.2d 863 (Fla. 4th DCA 1966) (whether trailer park manager was acting within scope of employment when he hit invitee during dispute was for jury); Columbia by the Sea, Inc. v. Petty, 157 So.2d 190 (Fla. 2d DCA 1963) (whether maître d acted within scope of employment when he hit patron in head with ashtray following dispute over bill was for jury). This is not a case where the employer's business was merely incidental to the encounter, such as where a domestic dispute happens to take place in the business premises. Here, the dispute was directly related to the business of the employer.

As a final point, Publix is simply misplaced in its argument that its policy against fisticuffs conclusively negates Appellant's claim against it. Publix bases this argument on Blanton's deposition testimony. When asked by Publix's counsel if he thought putting his hands on Appellant was “something that [Publix] wanted [him] to do or asked for [him] to do,” the employee replied in the negative. This question only focuses on whether Blanton was actually acting within the scope of employment, not whether he apparently was acting within the scope. Under the latter theory, whether the employer authorized the act, or even forbade it, is immaterial. See Stinson, 94 So. at 657 (an act may be within “apparent” scope of employment even though “not authorized by, or was forbidden by, the employer....”).

An employer is, of course, liable to third parties for injury or damage caused by the negligence of his employee when committed within the scope of his employment. 2 Fla.Jur.2nd Agency and Employment § 209. Nevertheless, it is equally well settled that an employee driving to or from work is not within the scope of employment so as to impose liability on the employer. Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So.2d 773 (1946); Standley v. Johnson, 276 So.2d 77 (Fla. 1st DCA 1973); Weiss v. Culpepper, 281 So.2d 372 (Fla. 3rd DCA 1973). And this is true even though the vehicle was used in the work and partly maintained by the employer. Foremost Dairies, Inc. of the South v. Godwin, supra.

In urging reversal, appellants rely heavily upon Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979). Although a workers' compensation case, it has been recognized that such cases decided under the "arising out of and in the course of employment" standard of workers' compensation are instructive in determining the limits of the common law doctrine of respondeat superior. See Saudi Arabian Airlines Corp. v. Dunn, 438 So.2d 116, 122 (Fla. 1st DCA 1983). See also Thurston v. Morrison, 141 So.2d 291, 294 (Fla. 2nd DCA 1962). Nevertheless, appellants fare no better under

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the Eady case as an analysis of that decision will demonstrate.

In Eady, the claimant was a nurse who worked for Medical Personnel Pool, a temporary manpower service that provided nurses and other trained medical personnel. Mrs. Eady was subject to being called at any time on special request jobs, even after having just completed a scheduled eight-hour assignment. On such special request jobs, the employee was always paid for at least four hours work even if the assignment took less time than that. After working a regular eight-hour assignment on the day of the accident, Eady's employer called her at home and asked her to proceed to the home of a client to do an intravenous administration. She soon completed the assigned task and returned home. Later that evening, the same client called Eady and asked her to return to change the intravenous bottle. En route to the client's home, Eady was injured in an automobile accident. The Supreme Court held that Eady qualified for compensation under the special errand exception to the going and coming rule about which the court observed:

Strictly speaking then, there is no on-call exemption because compensation is based not on the employee's on-call status but on the circumstance that at the time of injury he was on a special errand in response to a call from his employer. The going and coming rule does not apply to employees on special errands or missions for the employer. Moody v. Baxley, 158 Fla. 357, 28 So.2d 325 (1946). Special errands often arise in the context of an afterhours call from the employer. See Feltner v. Southern Bell Tel. & Tel. Co., 274 So.2d 530 (Fla.1973). As a practical matter, the irregularity and suddenness of a call from the employer will almost always qualify it as a special errand exempt from the going and coming rule.

377 So.2d at 693.

A number of factors lead us to the conclusion that this is not a proper case for application of the special errand exception to the going and coming rule. The journey was not a substantial part of the service performed for the employer. For example, this is not a case where the employee has as part of his job the duty to return to the job site to perform a task which consumes relatively little time. See 1A. Larson, The Law of Workmen's Compensation § 16.00 (1978); Eady, supra, at 696; Gray v. Dade County School Board, 433 So.2d 1009, 1011 (Fla. 1st DCA 1983). Also, the time and length of the journey involved in the case at bar appear to be no greater than the vast majority of instances involving workers reporting to their job sites in the community in which they reside.

The Eady court appeared to place significant reliance upon the suddenness of the employer's call and the burden on the employee responding to such call "even when the call is a regular part of the job or nominally voluntary," Id. at 696. In the first place, there is no suggestion from the evidence that a person on an unskilled labor pool list of the kind involved in the instant case would feel any significant pressure to accept the employer's assignment. But more important, it was not the employer who initiated the call to McLaney. Instead, McLaney called Manpower and requested assignment. It can hardly be said that the suddenness of the employer's assignment is a factor in this case weighing in favor of employer liability.

Additionally, the job involved in the instant case did not require any travel, see Tampa Ship Repair & Dry Dock Co. v. Young, 421 So.2d 706 (Fla. 1st DCA 1982), and there was no arrangement or understanding for employer reimbursement of McLaney's use of his car. McLaney had not yet started the day's work, Foremost Dairies, Inc. of the South v. Godwin, supra 26 So.2d at 774, he was on his way to a regular eight-hour work day and was to be paid only while working at the job site. Further, Manpower assumed no control over McLaney with respect to his trip to the job site or the route that he was to take.

The fact that McLaney was proceeding to a job site which was "irregular or perhaps

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even unfamiliar," Eady, supra at 697, is hardly sufficient to outweigh the other factors which clearly indicate the applicability of the going and coming rule. The trial court was correct in entering the summary judgment in favor of Manpower.

Elizabeth Paraiso, a fitness instructor at a health spa owned by Florida East Coast Properties, received a telephone call from the spa manager asking her to stop off at a supermarket on the way to work and pick up a birthday cake for the assistant manager's birthday party. Paraiso departed for work earlier than usual, and deviated five blocks from her normal route in order to purchase the cake. Before returning to her regular route, Paraiso lost control of the car when she reached over to prevent the cake from falling off the seat. The car left the road and struck the plaintiff, William Sussman, as he sat on a bench waiting for a bus.

Sussman sued Florida East Coast Properties on a theory of vicarious liability, alleging that although employers are not generally liable for the negligence of employees on their way to work, this case falls under the special errand exception to the coming and going rule. Florida East Coast Properties responded with evidence that Paraiso was not acting within the scope of the employer's business when the accident occurred. The trial court agreed that the employer was not liable.

Sussman's chief contention on appeal is that because it was undisputed that the employee was within the course and scope of her employment, as the term is used in the workers' compensation statute, the trial court was inconsistent when it found that the employee was not acting within the scope of the employer's business for the purpose of imposing vicarious liability for injuries caused to a third person. We disagree.

Different considerations dictate the results in analyzing whether an employer is legally responsible for the conduct of an employee which results in harm to the employee or a fellow employee, and conduct of an employee which results in harm to third persons. Johnson v. Gulf Life Ins. Co., 429 So.2d 744 (Fla. 3d DCA 1983). The policy goal of the workers' compensation statute is to provide prompt and limited compensation benefits for job-related injuries and to facilitate the employee's speedy return to employment without regard for fault. Winn Dixie Stores, Inc. v. Akin, 533 So.2d 829, 831 (Fla. 4th DCA 1988) (Anstead, J. concurring specially), rev. denied, 542 So.2d 988 (Fla.1989). Those policy considerations are not at work in cases where third parties make claims against the employer under principles of respondeat superior for injuries caused by the employee. Instead, a narrower analysis is undertaken which relies strictly on tort principles. Id. See also Anderson v. Falcon Drilling Co., 695 P.2d 521 (Okl.1985); Kang v. Charles Pankow Assoc., 5 Haw.App. 1, 675 P.2d 803 (1984); Beard v. Brown, 616 P.2d 726 (Wyo.1980); Driscoll v. Harmon, 124 Ariz. 15, 601 P.2d 1051 (1979).

The conduct of an employee is within the scope of his employment, for the

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purpose of determining the employer's vicarious liability to third persons injured by the employee, only if (1) the conduct is of the kind the employee is hired to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part by a purpose to serve the master. Kane Furniture Corp. v. Miranda, 506 So.2d 1061 (Fla. 2d DCA), rev. denied, 515 So.2d 230 (Fla.1987); Whetzel v. Metropolitan Life Ins. Co., 266 So.2d 89 (Fla. 4th DCA 1972).

When the employee detoured on her way to work to stop at a supermarket, where she purchased a cake for a fellow employee's birthday celebration, ¹ although she was enroute to her place of employment when she struck and injured a pedestrian with her personal vehicle, she was outside the scope of the employer's business as a matter of law. See Johnson, 429 So.2d at 746 (question whether employee was acting within scope of employment is question of law where there is no factual dispute).

Summary judgment for the employer is affirmed.

The "course and scope of employment" test for liability of the private and the public employer are essentially the same. See, City of Miami v. Simpson, 172 So.2d 435, 437 (Fla.1965). The common law rule is stated by this court in Lay v. Roux Laboratories, Inc., 379 So.2d 451, 453 (Fla. 1st DCA 1980):

As a general rule under the principles of the common law, an employer is liable in damages for the wrongful act of his employee that causes injury to another person, if the wrongful act is done while the employee is acting within the apparent scope of his authority as such employee to serve the interests of the employer, even though the wrongful act also constitutes a crime not a homicide or was not authorized by, or was forbidden by, the employer, or was not necessary or appropriate to serve the interests of the employer, unless the wrongful act of the employee was done to accomplish his own purposes, and not to serve the interests of the employer. Stinson v. Prevatt, [87 Fla. 416] 94 So. 656 at 657 (Fla.1922).

... However, an employee is not acting in the scope of employment if it can be found that the employee has "stepped away" from employer's business at the time of the 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 employment as a matter of law. Counts I through IV of the amended complaint allege actions by Jones which may well have been undertaken, in whole or in part, within the scope of his employment to further the Department's interests, and these allegations sufficiently state causes of action. Count I alleges that Jones negligently and carelessly performed his duties as a trooper by approaching, questioning, detaining, transporting, and illegally searching Ms. Hennagan without reasonable suspicion or probable cause. Count II alleges that Jones unlawfully detained and restrained her against her will. Count III alleges an unlawful and illegal search and touching, a battery. Count IV alleges an invasion of privacy based on an unlawful touching.

The complaint alleges a number of actions which could be found to exceed authority but not be outside the scope of employment as that term has been interpreted in the private and public sectors. For example, the use of excessive force by an officer in effecting an arrest may render the public employer liable for the intentional torts inflicted thereby. City of Miami v. Albro, 120 So.2d 23 (Fla. 3d DCA 1960); City of Miami v. Jiminez, 266 So.2d 46 (Fla. 3d DCA 1972); City of Miami v. Graham, 311 So.2d 697 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 17 (Fla.1976); City of Jacksonville v. Walton, 318 So.2d 546 (Fla. 1st DCA 1975). Thus, conduct may be within the scope of employment, even if it is unauthorized, if it is of the same general nature as that authorized or is incidental to the conduct authorized. Lewis v. Walston and Company, 487 F.2d 617 (5th Cir.1973).

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In the instant case, it cannot be said, as a matter of law, that the acts alleged were or were not done in furtherance of Trooper Jones' duties to apprehend a shoplifting suspect. ⁵ That the acts of Jones resulted in a criminal offense does not preclude a determination that the acts were initiated in the course and scope of his employment and to serve the interests of the employer. 2 Fla.Jur.2d Agency and Employment § 220. Conduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master. The purpose of the employee's act, rather than the method of performance thereof, is said to be the important consideration. 2 Fla.Jur.2d Agency and Employment § 213.

This court, in Roux Laboratories, supra at 453, quoted with approval from Columbia By The Sea, Inc. v. Petty, 157 So.2d 190, 194 (Fla. 2d DCA 1963):

Although there is a cogent and persuasive argument that Menendez [employee] acted for personal reasons entirely divorced from his duties and responsibilities as maitre'd, (sic) it is not impossible to attribute the anger, assault and battery to overzealousness in the protection of what he envisioned as his employer's interests.

Likewise, it is not impossible to attribute the alleged actions of Trooper Jones, at least in part, to misfeasance and/or overzealousness in the performance of his official duties. On the more stringent test of summary judgment or trial, these matters may be resolved adversely to plaintiff, but the allegations of the complaint are sufficient to withstand motion to dismiss.

The judgment below is affirmed in part and reversed in part. We affirm the summary judgment entered in favor of defendant on the third amended complaint, but reverse the order dismissing Counts I through IV of the amended complaint. Morse v. Hendry Corporation, 177 So.2d 31 (Fla. 2d DCA 1965). The cause is remanded for further proceedings based on the allegations made in Counts I through IV of the amended complaint and consistent with this opinion.