DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTHONY JONES,
Appellant,
v.
DIONISIOS THEODORE VASILIAS, NORTH AMERICAN AUTOMOTIVE
SERVICES, INC., DAVID MARSHALL, and STEVE IGNOWSKI, et al.,
Appellees.
No. 4D21-3476
[March 15, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2020-CA-
001204-XXXX-MB.
Andrew A. Harris and Grace Mackey Streicher of Harris Appeals, P.A.,
Palm Beach Gardens, and Neil P. Anthony of Steinger, Greene & Feiner,
West Palm Beach, for appellant.
Jack R. Reiter and Jonathan L. Gaines of GrayRobinson, P.A., Miami,
for appellees, North American Automotive Services, Inc., David Marshall,
and Steve Ignowski.
CONNER, J.
This appeal addresses the dismissal of a complaint for failure to state
a cause of action where supervising employees of a corporation were sued
individually for an automobile accident caused by a subordinate employee
of the corporation.
The underlying action arose from a crash suffered by the appellant (“the
plaintiff”) while riding his bicycle along the busy street in front of an
automobile dealership as an employee was leaving in a dealership van for
a delivery. Responding to the operative complaint, the dealership admitted
ownership of the van and that the driver was driving the van with
permission while in the course of his employment when the crash
occurred.
In addition to a claim for negligent driving against the driver and the
dealership, the operative complaint asserted direct negligence claims
against the general manager and the service manager (collectively “the
supervisors”). The service manager was the one who sent the driver to
make the delivery. Below and on appeal, the plaintiff collectively refers to
the direct liability claims against the supervisors and the general
manager’s employer, North American Automotive Services, Inc. (“North
American”), as “negligent employment” claims, and we will do the same in
this opinion. Specific claims of liability will be noted more fully below.
We determine the trial court erred in dismissing the direct negligence
claims against the supervisors because it erroneously applied caselaw.
Because the direct negligence claim against the general manager was
improperly dismissed, it was also an error to dismiss the vicarious liability
claim against North American. We reverse for further proceedings. As
explained more fully below, we emphasize that our opinion is based on the
pleading-stage procedural posture of this case.
Background
In addition to a claim of negligent driving against the driver and the
dealership, the operative complaint asserted causes of action against the
supervisors for negligent training, retention, supervision, and
entrustment. As to the service manager, the complaint also alleged
negligent hiring. As to North American, the complaint asserted vicarious
liability for the acts of its employee, the general manager.
The supervisors and North American each moved to dismiss the
respective claims against them for failure to state a cause of action. Citing
Clooney v. Geeting,
352 So. 2d 1216 (Fla. 2d DCA 1977), the supervisors
argued that the plaintiff could not allege an independent cause of action
against them where the dealership had already admitted it employed the
driver and the driver was driving its vehicle with its permission at the time
the accident occurred. The supervisors also argued that a necessary
element for the cause of action against them was that the supervisors
committed a tort outside of their employment (which was not alleged in
the complaint). North American’s motion to dismiss argued that if the
claim against the general manager were dismissed, the vicarious liability
claim against North American would fail as well.
The plaintiff responded that the negligent employment claims present
distinct theories of liability from the claims against the driver and the
dealership, and that the supervisors’ scope of employment argument was
not applicable to actions against them.
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The trial court granted all three motions to dismiss, observing that the
dealership had admitted the driver was driving its vehicle with permission
while in the scope of employment at the time of the crash. The dismissal
order stated that the Clooney court “disallowed and [struck] causes of
action for negligent supervision and retention when the employer admits
the employee was acting in the course and scope of his duties,” and noted
caselaw holding that negligent hiring and retention actions require acts
outside the scope of employment. The dismissal order concluded:
Here, there are only concurrent theories of liability. The only
torts alleged by defendants [the general manager] and [the
service manager] relate to their hiring and retention of [the
driver] as a driver for [the dealership]. There is no allegation
that the vehicle they gave him had bad brakes or other faulty
equipment (the example in Clooney, supra) or that there is a
separate theory of liability such as a punitive damage claim
against [the dealership].
After final orders were entered dismissing the negligent employment
claims with prejudice, the plaintiff gave notice of appeal.
Appellate Analysis
The plaintiff contends on appeal that the trial court erred in dismissing
his claims against the supervisors and North American by ruling that,
pursuant to Clooney, negligent employment claims against an individual
supervisor must allege that the subordinate employee’s negligent acts were
outside the scope of employment.
A ruling on a motion to dismiss for failure to state a cause of action is
an issue of law reviewed de novo. Regis Ins. Co. v. Miami Mgmt., Inc.,
902
So. 2d 966, 968 (Fla. 4th DCA 2005). “When determining the merits of a
motion to dismiss, a court may not go beyond the four corners of the
complaint and must accept the facts alleged therein and exhibits attached
as true, with all reasonable inferences drawn in favor of the pleader.”
Id.
The trial court concluded that the negligent employment claims alleged
concurrent theories of liability against the dealership involving the
supervisors and North American. The trial court justified that conclusion
by relying on Clooney; Acts Retirement-Life Communities, Inc. v. Estate of
Zimmer,
206 So. 3d 112 (Fla. 4th DCA 2016); City of Boynton Beach v.
Weiss,
120 So. 3d 606 (Fla. 4th DCA 2013); and Belizaire v. City of Miami,
944 F. Supp. 2d 1204 (S.D. Fla. 2013). The trial court interpreted those
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cases to stand for the proposition that negligent employment claims must
allege that the acts of the employee causing an accident were acts outside
the scope of employment.
In Clooney, the Second District noted that Florida generally recognizes
negligent employment claims against employers.
352 So. 2d 1220.
However, the Second District held that, in the context of an automobile
injury case, the trial court properly struck negligent employment claims
against the employer because those claims imposed no additional liability
for acts within the scope of employment beyond the negligent driving of
the employee.
Id. The Second District reasoned:
The reason for this is a very practical one: Under [negligent
employment] theories the past driving record of the driver will
of necessity be before the jury, so the culpability of the
entrusting party can be determined. As was said in Dade
County v. Carucci,
349 So. 2d 734, 735 (Fla. 3d DCA 1977),
“Ordinarily, the evidence of a defendant’s past driving record
should not be made a part of the jury’s considerations.”
Id. Thus, the trial court in the instant case interpreted Clooney and its
progeny to prohibit negligent employment claims in all instances where
the employer admits the acts causing injury were committed within the
scope of employment.
The trial court’s reliance on Clooney was misplaced. In Clooney, the
plaintiff did not allege direct negligence against the employer.
352 So. 2d
at 1219-20. Instead, the two counts which the trial court struck alleged
concurrent theories of recovery based on vicarious liability for the driver.
Id. In short, the counts were redundant. Additionally, the negligent
employment claims in Clooney were brought against the employer, and not
individually against a supervisor. In the instant case, the plaintiff did not
plead any negligent employment claims against the employer of the driver
causing the accident. Instead, the negligent employment claims were
against the supervisors individually, and vicariously against an employer
of one of the supervisors (who was not the driver’s employer).
“It is well-settled . . . that individual officers and agents of a corporation
may be held personally liable for their tortious acts, even if such acts were
committed within the scope of their employment or as corporate officers.”
First Fin. USA, Inc. v. Steinger,
760 So. 2d 996, 997-98 (Fla. 4th DCA 2000)
(emphasis added); see also Greenberg v. Post,
19 So. 2d 714, 717 (Fla.
1944) (“It is well settled that an employee may be held personally liable at
the suit of a third person for positive negligent acts committed by him even
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though his employer may likewise be liable for the servant’s negligent
conduct when exercised within the scope of the employment.”).
Additionally, Florida courts have emphasized that the officer cannot be
personally liable “for [his] torts merely by reason of his official character[,]”
but he is liable for torts where he “commits or participates in the
commission of a tort.” Orlovsky v. Solid Surf, Inc.,
405 So. 2d 1363, 1364
(Fla. 4th DCA 1981) (citation omitted); see also Costa Invs., LLC v. Liberty
Grande, LLC,
353 So. 3d 627, 633-34 (Fla. 4th DCA 2022); McElveen v.
Peeler,
544 So. 2d 270, 271 (Fla. 1st DCA 1989). “A contrary rule would
enable a director or officer of a corporation to perpetrate flagrant injuries
and escape liability behind the shield of his representative character.”
Orlovsky,
405 So. 2d at 1364 (citation omitted). “A corporate officer or
agent must be alleged to have acted tortiously in his individual capacity in
order to be individually liable.” White-Wilson Med. Ctr. v. Dayta
Consultants, Inc.,
486 So. 2d 659, 661 (Fla. 1st DCA 1986).
In the instant case, the trial court erred to the extent it concluded that
a negligent employment claim against a supervisor individually requires
that the subordinate employee’s actions be outside the scope of
employment. A claim of negligent hiring, training, retention, supervision,
or entrustment against a supervisor individually, as opposed to the
corporate employer, does not depend on whether the subordinate
employee’s actions were outside the scope of employment. See Steinger,
760 So. 2d at 997-98; Orlovsky,
405 So. 2d at 1364 (determining a
corporate officer who participates in a tort is liable to third persons injured
thereby “and it does not matter what liability attaches to the corporation
for the tort” (citation omitted)). However, such negligent employment
claims must include more than just general or vague assertions of the
supervisor’s responsibilities: they must include facts showing the
supervisor’s “personal involvement” in a tort that led to the plaintiff’s
injuries, or “at least knowledge amounting to acquiescence in the wrongful
act.” Costa Invs., LLC, 353 So. 3d at 634 (emphasis added) (quoting
Speiser et al., 1A Am. Law of Torts § 4:24 (2022))); see also Home Loan
Corp. v. Aza,
930 So. 2d 814, 815-16 (Fla. 3d DCA 2006) (reversing
dismissal of a complaint for negligent misrepresentation where the
complaint alleged the corporate officer prepared and signed the document
containing the misrepresentation).
The complaint here alleged sufficient facts to avoid dismissal of the
negligent employment claims. The complaint alleged facts to show that
although the collision with the plaintiff occurred just off corporate property
and the supervisors were not in or around the van at that time, the
supervisors at least “[had] knowledge amounting to acquiescence in the
wrongful act” of allowing the driver to drive the van under circumstances
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demonstrating he was unfit to do so. Thus, we reverse the trial court’s
dismissal of the complaint against the supervisors. Having determined
that the trial court improperly dismissed the claim against the general
manager, we also reverse the dismissal as to his employer, North
American. See Luebbert v. Adventist Health Sys./Sunbelt, Inc.,
311 So. 3d
334, 336 (Fla. 5th DCA 2021) (“The theory of vicarious liability holds
employers liable for the negligence of their employees committed within
the scope of employment.”).
We again emphasize that our opinion is based on the pleading-stage
procedural posture of this case. We also point out that our conclusions
as to the sufficiency of the pleadings do not determine how the elements
of the cause of action will play out as discovery reveals more details of the
facts of this case.
Conclusion
Having determined the trial court erred in dismissing the individual
employment liability claims against the supervisors and the vicarious
liability claim against North American, we reverse the dismissal order and
remand for further proceedings.
Reversed and remanded for further proceedings.
MAY and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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