Read the attached case, Tallahassee Furniture, and write a one page report answering the following questions about the case: What happened to
the student? What did the employer do wrong? How could the employer have prevented liability. (paper to be turned in)
583 So.2d 744
District Court of Appeal of Florida,
First District.
TALLAHASSEE FURNITURE COMPANY, INC., a Florida corporation, Appellant,
v.
Elizabeth Holland HARRISON, Appellee.
No. 89-2163. | July 31, 1991. | Rehearing Denied Aug. 30, 1991.
Opinion
SMITH, Judge.
Appellant, Tallahassee Furniture Company, Inc., appeals from a jury verdict finding it liable for personal injuries suffered by the appellee,
Elizabeth Holland Harrison, and awarding compensatory and punitive damages. For the reasons discussed below, we affirm.
On January 1, 1986, Harrison was brutally attacked in her home by John Allen Turner, a furniture deliveryman employed by Tallahassee Furniture.
The attack left Harrison with permanent scarring and disfigurement, loss of one eye, and partial paralysis in both hands. Harrison filed suit,
alleging in her complaint that Tallahassee Furniture was negligent in hiring and retaining Turner….[A]fter a six-day trial at which Harrison
presented the testimony of 21 witnesses, the jury returned a general verdict in favor of Harrison for $1,900,000 in compensatory damages, and
$600,000 punitive damages. This appeal followed.
***
I. FACTUAL BACKGROUND
The evidence at trial established that prior to being employed in the job he held at the time Harrison was injured, John Allen Turner had
performed some work as a laborer on construction projects for a company owned in part by a managing agent of Tallahassee Furniture, and he had
performed odd jobs and yard work for the managers of Tallahassee Furniture. As a result of this experience with Turner, he was then hired to
work part-time for Tallahassee Furniture at what was referred to as the “fairground sale,” a semiannual event involving the sale of household
furniture and other merchandise at the local fairgrounds. Sometime in the spring of 1985, after working part-time for approximately three
months, Turner was hired to work full-time as a furniture deliveryman. Although this job entailed the delivery to customers’ homes on a daily
basis at times prearranged with the customers, no job interview was conducted, no references were requested, and Turner was not asked to
complete a job application form. Turner was first hired to work as a junior member of a two-man delivery crew, in which the driver was the lead
employee. By the late summer of 1985, Turner became a driver and was allowed to drive a company truck home.
Harrison was a student at Florida State University, living alone in an apartment. For her birthday, Harrison’s father, a stockholder in
Tallahassee Furniture, offered to buy her a couch of her choice. She picked out a couch from Tallahassee Furniture and made arrangements to have
it delivered. Turner and another employee delivered the couch sometime in October 1985, at which time the delivery crew also assisted Harrison
in moving a bed and a few other belongings to a new apartment, the place where Turner’s attack upon Harrison later took place. During this
moving process, Harrison offered the deliverymen a broken television set, which she said she wanted to discard, but was unable to carry it down
three flights of stairs. Turner accepted it. Harrison later discovered the couch was defective, a new couch was ordered, and Harrison was told
that it would arrive around Christmas.
On New Year’s Eve, Harrison fell asleep while watching television on her couch. She was awakened the next morning, on New Year’s Day, by a knock
on her door. She recognized the man at the door as one of the men who delivered her couch. Turner told Harrison that he needed a receipt for the
television set she had given him, because “they,” which Harrison assumed meant Tallahassee Furniture, thought he had stolen it. Harrison agreed
to write a receipt and left the door ajar. While she was writing the receipt, Turner looked inside and asked if he could use the bathroom.
Harrison told him he could. After Turner entered the house, he went into the kitchen area, then suddenly reappeared with a knife in the living
room, where Harrison was writing the receipt, and attacked Harrison, threatening to kill her. When Harrison pleaded with him, he suddenly
released her and said he was sorry and that he was “screwed up” and on drugs, and told her to go call the police. Instead, Harrison, terrified,
ran into the bathroom and locked the door. Unfortunately, Turner pursued her, broke the door open, savagely stabbed her with the knife, and
bludgeoned her into unconsciousness while she lay bleeding on the bathroom floor. Miraculously, Harrison regained consciousness after Turner
left the apartment, and was able to reach the front door, where her cries for help were heard by neighbors.
When police officers arrived at the scene of the attack, Harrison told the officers that her assailant was John Allen Turner, a Tallahassee
Furniture employee. At this time, Turner reappeared at the apartment driving a Tallahassee Furniture delivery truck. Police approached the
driver and asked for a driver’s license. Seeing the name John Allen Turner, Turner was arrested.
During the presentation of plaintiff’s case, Harrison presented extensive evidence establishing Turner’s unfitness for employment for duties
involving the entry of customers’ homes. This included proof that Turner had a juvenile record for armed robbery and burglary in 1976; adult
records of arrest for assault and battery; a charge of aggravated battery in 1979; a conviction for battery involving cutting his former wife in
the face with a knife; additional charges of battery on his wife in 1981; and voluntary hospitalization for psychiatric problems on two
occasions, in 1979 and 1981, with a diagnosis of paranoid schizophrenia, including reported delusions of voices telling him to kill himself and
to kill other people. Turner had been heavily using drugs preceding both periods of hospitalization. Further, Turner had been using cocaine
intravenously for about a year prior to his attack on Harrison, and had been using heroin intravenously for about two months. In addition,
Turner had been fired by his prior employer. At the time of his arrest, Turner had clearly visible “track marks” on both arms, indicating heavy
intravenous drug use, which were still apparent at the end of January 1986. He was examined by two court-appointed psychologists and was found
incompetent to stand trial in January and even as late as March 1986. One of the psychologists testified that in March, Turner was making
bizarre comments, hearing voices, and seeing people when there was no one present.
Although much of the trial and argument below dealt with proof of Turner’s unfitness for employment and continued retention in the job he held
on the day of his attack on Harrison, as the trial progressed this became less of an issue, given testimony by the representatives of the
management of Tallahassee Furniture that had they known of Turner’s prior criminal record, his drug addiction, and psychiatric illness, Turner
would not have been hired as a deliveryman.
Tallahassee Furniture’s standard employment application form, which was never submitted to Turner, included a question requesting the applicant
to disclose whether he or she had a personal history, even if slight, of drug addiction, nervous disorders, or psychiatric care, among other
things. The form also included the question, “Have you ever been convicted of a crime?” and “If Yes, please explain.” The form also requested a
“yes” or “no” answer to the question, “Have you ever been arrested?” followed by the instruction, “If Yes, give details (omit minor traffic
violations).” At least two of Tallahassee Furniture’s representatives testified that it could be assumed that if the employment application had
been requested, Turner would have furnished the information requested.
III. NEGLIGENT HIRING OR RETENTION
***
Most jurisdictions, including Florida, recognize that independent of the doctrine of respondeat superior, an employer is liable for the willful
tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others. (footnotes
omitted).
All authorities appear to agree…, that central to the task of judging the employer’s responsibility to investigate an employee’s background is
consideration of “the type of work to be done by the employee.”. Stated in terms of the “standard of care” required of an employer, [an earlier
court] formulated the following test:
In general, the test is whether the employer exercised the level of care which, under all the circumstances, the reasonably prudent man would
exercise in choosing or retaining an employee for the particular duties to be performed. …
Of particular concern in negligent hiring and retention cases is the basis for holding employers liable for employees’ acts for which no
liability would attach under the doctrine of respondeat superior. If employers are to be exposed to liability for acts of their employees
outside the scope of their employment, there must be some rational basis for limiting the boundaries of that liability. That limitation is
explained as follows:
Only when an employer has somehow been responsible for bringing a third person into contact with an employee, whom the employer knows or should
have known is predisposed to committing a wrong under circumstances that create an opportunity or enticement to commit such a wrong, should the
law impose liability on the employer. (citations omitted).
The more difficult questions presented by these cases is “What, if any, responsibility does the employer have to try to learn the pertinent
facts concerning his employee’s character?” Id. at 1240. The following are considerations for trial of this issue: (1) what kind of inquiry
“would have been reasonable under the circumstances”; (2) what is the information the employer “would likely have obtained had it made such
inquiry”; and (3) what was “the cost of obtaining such information.”
Answering the first of these questions, as to the duty of inquiry where an employee is given the authority to enter the living quarters of
others, the Williams court stated the following rule:
If an employer wishes to give an employee the indicia of authority to enter into the living quarters of others, it has the responsibility of
first making some inquiry with respect to whether it is safe to do so.
Id. at 1240. The court then concluded that the employer, Feather Sound, did not carry out this responsibility since it made no effort to contact
prior employers and did not seek advice from the employee’s references. The court held, accordingly, that the trial court should not have
granted a summary judgment in favor of the employer. From the foregoing discussion, we conclude, paraphrasing Williams, 386 So.2d at 1241, that
the ultimate question of liability to be decided is whether it was reasonable for the employer to permit the employee to perform his job in the
light of information about him which the employer should have known.
Addressing this ultimate issue, appellant presents two basic arguments: first, that appellant had no legal duty to independently investigate
Turner’s background because the job for which he was hired involved only incidental contact with customers; and, second, appellant contends
that, as a matter of law, it met and exceeded its duty to evaluate Turner for the deliveryman position based upon appellant’s actual experience
with Turner in similar jobs. We find these arguments unavailing for several reasons.
As to the duty to “independently investigate,” we readily accept appellant’s acknowledgment that this entails something other than a personal
interview of the employee, obtaining an employment application, or evaluation based upon actual observation and experience with the employee.
Consequently, to simply say that there was no legal duty on the part of the employer in this case to make an “independent” investigation, does
not mean that there was no duty to investigate before hiring Turner. In this case, by Tallahassee Furniture’s own admission, there was no
“independent investigation” of Turner’s fitness for employment as a deliveryman. Indeed, there was no “investigation” at all. Tallahassee
Furniture conducted no job interview, nor did it obtain a written employment application from Turner, notwithstanding the fact that the company
had on hand application forms which it generally used.
********
Our holding that the evidence was sufficient to go to the jury on the negligent hiring charge makes it unnecessary to decide whether the
evidence was also sufficient to support the charge of negligent retention. ……
Negligent retention of an employee occurs when, during the course of employment, the employer becomes aware or should have become aware of
problems with an employee that indicate his unfitness, but the employer fails to take further action, such as investigation, discharge, or
reassignment. Appellant urges that, here, there is no evidence that it had notice of Turner’s unfitness during his employment. Appellant reviews
the evidence concerning two episodes during the employment which, to some extent, indicate unlawful activity on the part of Turner. The first
incident involved Tallahassee Furniture’s knowledge that Turner had been arrested for violation of probation received in connection with a
charge of grand theft. The offense arose out of an incident in which he failed to return a rent-to-own television set. During his employment,
appellant’s management became aware of his arrest for violation of his probation for failure to make restitution as ordered, and the company
advanced money to Turner to pay this obligation. The second incident involved Tallahassee Furniture’s discovery, in the late fall of 1985, after
Turner had been permitted to drive a truck, that Turner had no driver’s license. In fact, Turner had not had a license for five years. Appellant
urges that these two incidents, even accepting the fact that Tallahassee Furniture became aware of them during the course of Turner’s
employment, are not of such a serious nature that Tallahassee Furniture was on notice of Turner’s unfitness for employment.
We are inclined to agree that, standing alone, mere knowledge that the employee had in the past been subjected to a charge of grand theft in
connection with failure to return a television set, and that he had undertaken to drive a truck without a valid license, does not appear to be
sufficient to place Tallahassee Furniture on notice that Turner was unfit for employment as a deliveryman. On the other hand, Harrison presented
the testimony of an expert in public and private security and in various criminological areas, that knowledge of these infractions was
sufficient to reasonably indicate the need for further inquiry. In addition, however, Harrison presented evidence, without objection, that
Turner was a heavy intravenous cocaine user during his entire full-time employment with Tallahassee Furniture and was a heavy intravenous heroin
user during the last few months before his attack on Harrison; that his drug and alcohol use on the job was commonplace; and that he had
indulged in the use of drugs on the premises at work with another employee, which was known to management of Tallahassee Furniture. Also without
objection, evidence was presented that one of the principals of Tallahassee Furniture was aware of a prior psychiatric hospitalization. This
evidence of Turner’s unfitness was corroborated to a large extent by evidence of the track marks on both arms at the time of his arrest, by the
finding of drug paraphernalia in his home (syringes and empty capsules), and by his incompetency from drug use and psychiatric problems
continuing for several months after his arrest. The clear import of this evidence was that Tallahassee Furniture failed in its duty to exercise
a reasonable degree of supervision and control over its service employees, a conclusion supported somewhat by evidence that appellant’s
dispatcher, who was Turner’s supervisor and in charge of the daily assignment of deliveries to the homes of customers, was not aware that Turner
had been given the personal use of a Tallahassee Furniture truck to drive home and for use during his off hours, on weekends, and on holidays.
Significantly, no coemployee of Turner at Tallahassee Furniture serving in the capacity as a driver or deliveryman with Turner was called to
testify as to Turner’s activities on the job. Considering the evidence in its entirety, we are not of the view that it was error to submit the
issue of negligent retention for resolution by the jury.
******
CONCLUSION
The judgment appealed is AFFIRMED.
TAKE ADVANTAGE OF OUR PROMOTIONAL DISCOUNT DISPLAYED ON THE WEBSITE AND GET A DISCOUNT FOR YOUR PAPER NOW!