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Unformatted text preview: denied, 478 So.2d 53 (Fla.
1985); Kirschenbaum v. Rehfield, 539 So.2d 12 (Fla. 3d DCA 1989); Morrison Motor 46 Co. v. Manheim Services Corp., 346 So.2d 102 (Fla. 3d DCA 1977), cert. denied, 354
So.2d 983 (Fla. 1978); and Gibbs v. Air Canada, 810 F.2d 1529 (11th Cir. 1987).
Restatement (Second) of Agency § 235 (1958) provides that "[an] act of a servant is not
within the scope of employment if it is done with no intention [**41] to perform it as a
part of or incident to a service on account of which he is employed." Further, it was
observed in Annot., 34 A.L.R.2d 372, 379 (1954), that "there is general agreement that
where an assault is purely personal to the servant, having no real connection with the
master's business, the doctrine of respondeat superior is inapplicable to fasten liability
upon the master."
There is no evidence that Turner intended to serve Tallahassee Furniture or further any of
its interests in any way in his New Year's Day attack upon Harrison. We agree with
appellee that the evidence establishes without equivocation that Turner met Harrison
through his job-related contact, and but for this initial contact, Turner would not have
known anything concerning her residence or that she was single and lived alone, and
would have had no means of gaining her confidence so as to obtain access into her
apartment. It is clear, however, that Turner had not been instructed by his employer to
obtain a receipt for the television set; instead, the request for the receipt was merely a
ruse or pretext used by Turner for the purpose of gaining consent to enter Harrison's
apartment. Furthermore, [**42] Turner's assault on Harrison was so outrageous and so
far removed from the nature of his job as a [*759] furniture deliveryman that we can
conceive of no theory under which his actions can be said to be within the scope of his
We do not hold that an employer can never be held liable for an assault committed by an
employee. Rather, we hold only that under the facts of this case, the doctrine of
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- Spring '08