Finally section 319 of the restatement imposes a duty

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Unformatted text preview: rol the conduct of a licensee, respectively, and neither are applicable here. Nor does K.M. fall under sections 314A or 320, since she was not in the custody of Publix at any time and they did not have a common carrier the duty to protect strangers against the tortuous conduct of another can arise if, at the time of the injury, the defendant is in actual or constructive control of: 1. the instrumentality; 2. the premises on which the tort was committed; or 3. the tort-feasor. Here, the injury did not occur on Publix’s premises, did not involve an instrumentality such as a car, and Publix did not have the right to control Woodlard when he was away from work on his own time. - 3 - passenger, innkeeper-guest, or possessor of landinvitee relationship. Section 3172 involves the duty of a master to control the conduct of a servant. As formulated by the Restatement, that duty is limited to acts committed by employees (1) with the employer’s chattels or (2) upon the premises of the employer or premises “upon which the servant is privileged to enter only as” the employer’s servant. This section does not affect K.M.’s case because the criminal attacks occurred off Publix’s premises and did not involve its property. Although there was an employment relationship between Publix and the mother, that relationship did not place a duty upon Publix with regard to its employees’ extracurricular relationship. The mother’s personal situation—that she needed child care in order to work—did not create a duty where one would not otherwise exist. To address one of K.M.’s arguments, the occurrence of the assault off-premises takes this case out of section 317, and precludes an action against Publix for negligent retention. See Bennett v. Godfather’s Pizza, Inc., 570 So. 2d 1351 (Fla. 3d DCA 1990) (holding that restaurant who furnished employee leaving work with beer owed no duty to passenger in employee’s car who was injured later that evening in a collision). Finally, sect...
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