Forster v. Red Top Sedan Service

District Court of Appeal of Florida, Third District · 1972 · Torts

TortsVicarious liabilityScope of employmentNegligent hiringassault and batterybus driverrespondeat superiorscope of employment

Facts

The Forsters were driving on the Airport Expressway when a Red Top bus driven by Harvey Breines came alongside their car, moved closer, pushed their car toward the median, then pulled in front of them and stopped abruptly. Breines then went to the driver's side of the Forsters' car, opened the door, cursed that no "old bastard" would delay his schedule or keep him from getting to the Beach, reached for the keys, pushed Mr. Forster in the face, and struck Mrs. Forster when she tried to protect her husband. Breines had worked for Red Top for about a month driving buses and limousines between the airport and Miami Beach, and at the time was on his way from the airport to Miami Beach to pick up a group. Plaintiffs also sought to show Breines' prior convictions and traffic violations and to question Red Top officials about hiring practices, but the trial court sustained Red Top's objections.

Issue

Whether the trial court erred in directing a verdict for Red Top on the ground that the driver was acting outside the scope of employment, where the evidence permitted competing inferences about whether the driver's conduct was connected to his duties. Whether the trial court also erred by preventing plaintiffs from presenting evidence relevant to their negligent hiring claim.

Rule

When the testimony and the varying inferences and conclusions that may be drawn from it create factual issues as to an employer's liability for an employee's misconduct, those issues must be submitted to the jury under proper instructions rather than resolved by directed verdict. Where a complaint alleges negligent hiring, it is error to deny the plaintiff the right to submit evidence on that issue.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tampa, Omar Vega drove a shuttle van for Gulf Harbor Transit and was headed to pick up hotel guests on a tight schedule. After a driver in a sedan hesitated at a green light, Omar swerved close to the sedan, stopped in front of it, and yelled that the delay was making him late for his pickup before shoving the driver when he approached the window.

Gulf Harbor Transit moves for a directed verdict, arguing Omar's shove was a purely personal assault outside the scope of employment. How should the court rule?

Explanation. The majority held that a directed verdict is improper when the testimony and the varying inferences and conclusions create factual issues on whether the employee's misconduct occurred within the scope of employment. Here, Omar was en route to perform assigned duties and expressly tied his conduct to the motorist's delaying his schedule, so a jury could infer a connection to the employer's business. The court should therefore deny the directed verdict and submit the issue to the jury. (Derived from Forster v. Red Top Sedan Service (n.d.).)