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Unformatted text preview: nd thus, Godfather's
cannot be vicariously liable for its employee's negligent act. See Johnson v. Gulf Life Ins.
Co., 429 So. 2d 744 (Fla. 3d DCA 1983). [**7] The plaintiff argues that if this court
finds that Lopez was acting outside the course and scope of his employment, Godfather's
should be held liable under Restatement (Second) of Torts, Section 317. We disagree. 30 Section 317 which is entitled "Duty of Master to Control Conduct of
Servant" provides as follows:
A master is under a duty to exercise reasonable care so to control his servant
while acting outside the scope of his employment as to prevent him from
intentionally harming others or from so conducting himself as to create an
unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant
is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant,
(ii) knows or should know of the necessity and opportunity for exercising
Pursuant to Section 317, an employer has a duty to control his employees' conduct when
the employee is acting outside the scope and course of his employment, if the employee
is on the employer's premises or if the employee is using the employer's [**8] chattel
which was entrusted to him. In the instant case, there is no doubt that Lopez was not on
the employer's premises at the time collision, and therefore the employer had no duty to
control its employee's conduct. The plaintiffs, however, argue that Section 317 is
applicable because the beer and the cups that were removed from the premises were
chattels of the employer. As with the negligent entrustment count, the plaintiffs attempt
to impose liability upon Godfather's because it furnished its "chattel" to Lopez. However,
as stated earlier, it is not the furnishing of the beer, but the drinking of the beer which is
the legal cause of the injuries. Barnes v. B.K. Credit Serv., Inc., 461 So. 2d 217 (Fla. 1st
DCA), petition f...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08