Case Law Update February 2024
Kulzer v. Sarah Way/Greenleaf Trust, ___So.3d ___(Fla. 5th DCA 2/2/2024)
Employer Vicarious Liability/Course and Scope
Sarah Way was employed by Greenleaf, and her duties were to inspect and prep condo units for sale. During her workday travel, she negligently collided with Kulzer, who then sued Way and Greenleaf. The trial court granted summary judgment in favor of Greenleaf as to vicarious liability, finding Way was not in the course and scope of her employment, based, in part, on the going-and-coming rule. The facts at trial were that Way normally worked for Greenleaf in Michigan, but had been transferred to Ormond Beach, with all expenses paid by her employer. On the day in question, she went to the condo in the morning, left around noon and was scheduled back for a meeting at the condo at 2:00 p.m. In the interim, she bought packing supplies for the condo, made another non-work purchase, ate a burger in the McDonald’s parking lot and then collided with Kulzer on the way to the condo. Vicarious liability of an employer requires the employee to have been in the course and scope of employment when the tort occurred. The trial court examined the facts against the vicarious liability elements under Sussman v. Florida East Coast Properties, which require (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. They also considered the going-and-coming rule under F.S. 440.092, found Way was not in the course and scope of employment and granted Greenleaf’s Motion for Summary Judgment. The DCA noted insufficient facts were presented to satisfy the Sussman elements. They did not further analyze the going and coming rule, or that Way was a traveling employee, and reversed and remanded for further proceedings. Click here to view Opinion