Confronting Clooney

Palm Beach County Justice Association

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January 12, 2024

Nichole J. Segal

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Grace Mackey Streicher

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INTRODUCTION

• What is a “Clooney issue”?

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Where an employee is the active tortfeasor, can an employer still be held liable for its own independent negligence, even where it admits liability for the acts of its employee?

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• This often arises with claims of negligent hiring, training, retention, entrustment, etc.

Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977)

• The plaintiff in Clooney sued the defendant truck driver and his employer after a car accident. Clooney, 352 So. 2d at 1218.
• The plaintiff brought both vicarious and direct negligence claims against the driver’s employer. Id. at 1220.
• The direct negligence claims against the employer were on the theories of negligent hiring, employment, and entrustment against the defendant employer
• The trial court struck these direct negligence claims. Id.
• The Second DCA affirmed.
• Why?

Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977)

• The Second DCA initially agreed with the general rule that negligent employment/entrustment theories are valid theories of recovery, and that they could be applied in MVA cases. Id.
• BUT the court imposed a caveat on the use of these theories. The court said that they shouldn’t be allowed to be presented to the jury in MVA cases where they impose no additional liability. Id.
• The rationale is that, ordinarily, in MVA cases, evidence of the driver’s past driving record should not come before the jury. Id. But in order to prove a negligent employment theory, the evidence of the past driving record would necessarily be before the jury, to show that it was negligent of the employer to hire/retain an unfit driver.
• So, if a negligent employment theory would not impose any additional liability in the case, the presentation of that theory—along with its evidence of the driver’s record—would be prejudicial to the defense.
• The court found that desirability of allowing those theories was outweighed by the prejudice to the defendants. Id.

Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977)

• The Second DCA’s reasoning was wrong.

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• Why?

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Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977)

• The court treated a vicarious liability claim against an owner/employer based on the driver’s negligence, as concurrent (i.e. imposing no further liability) with a direct liability claim against the owner/employer for its own negligence in hiring or entrusting a vehicle to an unfit driver, or in poorly training or supervising the driver.

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• This wrongly conflates the distinction between damages and liability. There is only one “set” of damages, i.e., the injury from the accident, but there are different theories of liability.

So when does Clooney come up?

• The defense will raise Clooney on a motion to dismiss negligent employment claims from a complaint in an MVA.
• How to distinguish?

So how to overcome Clooney?

• Clooney itself offers some examples of situations where additional liability would arise, thus allowing negligent employment theories. For example:
• Punitive damages: If the facts underlying a negligent employment claim were sufficient to permit a punitive damages claim to get to the jury, then negligent employment claim could go before the jury
• Bad brakes paradigm: If an owner allows a driver to use a vehicle while the owner knows the vehicle has bad brakes but the driver doesn’t know, the driver could be found to be not negligent if an accident occurs, while the owner would be negligent for lending the driver a faulty vehicle.

So how to overcome Clooney?

• Notice that Clooney focuses on evidentiary issues – the prejudice of the jury hearing evidence of the driver’s poor driving record to the prejudice of the defendants.
• Argue that Clooney should not be used to eliminate theories of liability at the motion to dismiss or summary judgment stage.
• Cite other cases distinguishing Clooney. For example…

Petrik v. N.H. Ins. Co., 379 So. 2d 1287 (Fla. 1st DCA 1979) – An additional defendant

• Plaintiff in MVA sued (1) a truck driver for negligence, (2) the driver’s employer for vicarious liability, and (3) both the employer and the individual employee who had hired the driver for negligent hiring. Id. at 1289.
• The plaintiff also asserted a punitive damages claim against the employer, alleging that it had hired the driver despite knowing of his bad driving record. Id.
• Like in Clooney, the trial court found that the negligent hiring claim was not bad enough to support punitive damages. Id. Thus, the trial court dismissed the negligent hiring claim against the employer and the hiring employee.

Petrik v. N.H. Ins. Co., 379 So. 2d 1287 (Fla. 1st DCA 1979) – An additional defendant

• On appeal, the First DCA initially affirmed the dismissal of the negligent hiring claim. Id. Believing that it was following Clooney, the First DCA held that, with the punitive damages claim gone, the negligent hiring claim imposed no liability beyond the vicarious liability claim, and therefore could not proceed to trial. Id.

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• BUT…

Petrik v. N.H. Ins. Co., 379 So. 2d 1287 (Fla. 1st DCA 1979) – An additional defendant

• The First DCA reversed itself on rehearing. Id. at 1290-91. While the court maintained its rejection of the punitive damages claim, it reversed its initial conclusion that the negligent hiring claim could not proceed without the punitive damages claim. Id. at 1291.
• The court acknowledged that the statement in its initial opinion that “[the negligent hiring] theor[y] impose[d] no liability on [the employer] different from that arising out of [the vicarious liability theory]” was incorrect. Id.
• The court then correctly explained that the plaintiff’s negligent hiring direct liability claim not only alleged a different theory than his vicarious liability claim, but also, “if proved, imposed additional liability upon a defendant not named in” the vicarious liability claims—i.e., the hiring employee. Id.

Petrik v. N.H. Ins. Co., 379 So. 2d 1287 (Fla. 1st DCA 1979) – An additional defendant

• The First District concluded by explaining:
• The stated reason in Clooney . . . for disallowing evidence of the prior driving record of the [driver] was the prejudice which inured to an employer in an action seeking respondeat superior damages. That reason is dissipated here, since evidence must necessarily be presented to the jury on the issue of [the hiring employee’s] liability in allegedly negligently hiring [the driver]. [The employer] is, therefore, subject to suit in [the negligent hiring count] for compensatory damages to the same degree as in [the vicarious liability counts]. Id. at 1290-91.

Petrik v. N.H. Ins. Co., 379 So. 2d 1287 (Fla. 1st DCA 1979) – An additional defendant

• It is true that the First DCA in Petrik on rehearing did explain its reasoning in part because the plaintiffs sued the hiring employee.
• But that was not the only reason for the court’s reinstatement of the direct liability claim against the employer and the hiring employee.
• The First DCA also reasoned that the negligent hiring claim was a “different theory” than the negligent operation and vicarious liability claims. Id. And, it reasoned, that the employer/owner and its two employees (the driver and the hiring employee) were each “subject to suit for their own respective negligence.” Id.

Dunmore v. Eagle Motor Lines, 560 So. 2d 1261 (Fla. 1st DCA 1990) – An additional defendant

• The plaintiff’s son was killed when he was hit by a semi-truck while riding his bike. Id. at 1262. The plaintiff sued:
1. the truck driver for negligent operation of the truck,
2. the driver’s employer/owner of the truck for vicarious liability, and
3. the lessee of the truck for negligent entrustment of the truck to the driver based on allegations that the lessee knew of the driver’s bad driving record. Id.
• The driver and the employer moved to sever their trial from the lessee’s, “arguing that admitting the driving record evidence to prove the negligent entrustment claim against [the lessee] would unfairly prejudice their defense if made known to the jury.” Id. at 1263.
• The trial court granted the motions to sever and proceeded with trial against the driver and employer first. Id.

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Dunmore v. Eagle Motor Lines, 560 So. 2d 1261 (Fla. 1st DCA 1990) – An additional defendant

• At trial the jury found for the plaintiff.
• It found the driver and employer 60% negligent and the plaintiff’s son 40% negligent. Id. The driver and employer paid the judgment. Id.

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• The lessee then moved for summary judgment and the trial court granted it on the “ground that satisfaction of the judgment against [the driver] and [the employer] foreclosed [plaintiff’s] right to prosecute his claim against [the lessee].” Id.

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Dunmore v. Eagle Motor Lines, 560 So. 2d 1261 (Fla. 1st DCA 1990) – An additional defendant

• On appeal, the First District reversed. Id.
• It held that the satisfaction of the judgment against one joint tortfeasor did not discharge the liability of the other joint tortfeasor. Id.
• The court explained:

Dunmore v. Eagle Motor Lines, 560 So. 2d 1261 (Fla. 1st DCA 1990) – An additional defendant

• The claim against the lessee for negligent entrustment was a separate tort from the cause of action for negligent driving of the truck and vicarious liability alleged against the driver and employer.
• The negligent entrustment theory imposed additional liability on the lessee not available to plaintiff against the lessee under any other alleged legal theory. The court cited Clooney here.
• The First DCA invoked principles of comparative negligence. It explained that, even though the plaintiff’s damages were the same against all three defendants, there were issues of fact as to the respective degree or percentage of fault of each separate defendant.
• Had all the defendants been tried together, it would have been the jury's function to assess the amount of plaintiff's damages and then assess the comparative responsibility of the decedent vis-a-vis all the respective defendants so as to total 100 percent, citing Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).

Dunmore v. Eagle Motor Lines, 560 So. 2d 1261 (Fla. 1st DCA 1990) – An additional defendant

• The First DCA criticized the trial court’s decision to sever the case and instructed that it should have tried both the negligent- driving and negligent-entrustment counts together, with an appropriate limiting instruction, if necessary, on the evidence of the driver’s record. Id. at 1264-65.

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• The First DCA explained that the erroneous severance of the two counts “prevented the normal operation of the comparative negligence doctrine.” Id. at 1264.

Trevino v. Mobley, 63 So. 3d 865 (Fla. 5th DCA 2011) – Additional damages

• Another way to confront Clooney is where a plaintiff is seeking additional damages.
• In Trevino v. Mobley, a woman was killed in a car collision. Id. at 866. Her estate filed a wrongful death action against (1) the driver of the other car and (2) his parents, who owned the car. Id.
• The plaintiff raised two theories of liability against the parents: (1) negligent entrustment and (2) vicarious liability. Id.
• The trial court, relying on Clooney, granted a directed verdict as to the negligent entrustment claim, finding that it was a concurrent theory of liability that would impose no additional liability. Id. 866-67.
• BUT….

Trevino v. Mobley, 63 So. 3d 865 (Fla. 5th DCA 2011) – Additional damages

• The trial court failed to appreciate that there were caps on damages for the vicarious liability of parents, as the owners of the car.
• In 1999, section 324.021(9)(b)3 was enacted, which limited a vehicle owner’s damages for vicarious liability.
• Clooney was decided before this 1999 statute
• But there were not caps on damages for the parents’ direct liability as the entrusters of the car to their son.
• The jury had awarded $5 million, but damages for vicarious liability were capped at $100,000
• Thus, a negligent entrustment claim could subject the owner (the parents) to additional monetary damages

Trevino v. Mobley, 63 So. 3d 865 (Fla. 5th DCA 2011) – Additional damages

• In reversing for the estate to pursue its negligent entrustment claims against the parents who owned the vehicle, the Fifth DCA stated, id. at 867:
• “We remain mindful of the prejudice problems pointed out in Clooney. However, there are a number of procedural mechanisms that can be used to ensure that a defendant's past driving record is excluded from the jury's determination of the driver's negligence, but included in the jury's determination of the vehicle owner's culpability for negligent entrustment. The type of three-phase trial agreed to by the parties in the present case is just one example.”
• (There were three phases of trial here because the estate also had a punitive damages claim against the driver).

Our recent cases overcoming Clooney

1. Sanchez v. Discount Rock & Sand
2. Jones v. Vasilias

Sanchez v. Discount Rock & Sand, Inc., Case No. 4:18-cv-10097-KMM, 2022 WL 832429 (11^th Cir. Feb. 9, 2022)

Facts

• Decedents’ (four young women) car was struck from behind by a truck being driven by Carlos Blanco, who was employed by Discount Rock & Sand. Decedents’ car was pushed into the opposing lane of traffic where it was immediately struck by a large RV. Decedents all died at the scene.
• The truck driver was driving was a pickup truck that had been modified to carry an 1,100-gallon aluminum tank. At the time of the accident, the tank was nearly full and weighed about 19,500 pounds.

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Sanchez v. Discount Rock & Sand, Inc., Case No. 4:18-cv-10097-KMM, 2022 WL 832429 (11^th Cir. Feb. 9, 2022)

Facts

• Plaintiffs sued:
1. the truck driver for direct negligence
2. the driver’s employer for vicarious liability
3. The driver’s employer for negligent maintenance and negligent entrustment
4. Plaintiff also sought punitive damages from the employer

Sanchez v. Discount Rock & Sand, Inc., Case No. 4:18-cv-10097-KMM, 2022 WL 832429 (11^th Cir. Feb. 9, 2022)

Trial

• Plaintiffs settled with the driver before trial; the case proceeded to trial on all counts against the employer.
• Plaintiffs presented evidence that the driver had been cited for multiple traffic violations in the few years before the accident. Additionally, the driver testified that he received no training in operating the modified truck other than riding along with another driver a few times.
• The driver testified that at the time of the accident it felt like he was being dragged and couldn’t stop or turn because of the weight of the water tank.
• Defendant relied on this testimony to argue that the accident was unavoidable.

Sanchez v. Discount Rock & Sand, Inc., Case No. 4:18-cv-10097-KMM, 2022 WL 832429 (11^th Cir. Feb. 9, 2022)

Trial

• After Plaintiffs closed their case, Defendant moved for directed verdict as to the punitive damages claim, which the trial court granted.
• Defendant then, for the first time, admitted that the driver was acting within the course and scope of his employment at the time of the accident.
• Defendant moved for directed verdict as to negligent entrustment and maintenance claim, pursuant to Clooney. That motion was denied.

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Sanchez v. Discount Rock & Sand, Inc., Case No. 4:18-cv-10097-KMM, 2022 WL 832429 (11^th Cir. Feb. 9, 2022)

Verdict

• The jury found both the driver and the Defendant employer were negligent and that their negligence cause the accident.

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• The jury found that the driver of the RV that ultimately struck the Decedents’ car, who had been a Fabre defendant, was not negligent.

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Sanchez v. Discount Rock & Sand, Inc., Case No. 4:18-cv-10097-KMM, 2022 WL 832429 (11^th Cir. Feb. 9, 2022)

Defendant’s Appeal

On appeal, Defendant argued that the trial court erred in denying its motion for directed verdict as to the negligent entrustment claim. It claimed it was entitled to a directed verdict pursuant to Clooney after it admitted that the driver was acting within the course and scope of his employment at the time of the accident.

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Sanchez v. Discount Rock & Sand, Inc., Case No. 4:18-cv-10097-KMM, 2022 WL 832429 (11^th Cir. Feb. 9, 2022)

The 11^th Circuit’s Opinion

• The 11^th Circuit affirmed the trial court’s decision.
• The court held:

“[T]his case is essentially the paradigm example of negligent entrustment. There was sufficient evidence for the jury to find, as Clooney envisioned, that Discount Rock ‘knew that the vehicle had’ a dangerous condition ‘yet allowed one who was not aware of this dangerous condition to use it,’ and an accident occurred because of that condition…. Because Discount Rock could be separately liable for entrusting the truck to Blanco in addition to being vicariously liable for Blanco’s negligence, the district court did not err in denying Discount Rock’s motion for judgment as a matter of law on the negligent entrustment claim.”

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Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

Facts of Jones v. Vasilias

• Plaintiff was hit by a Napleton’s shuttle while riding his bike
• Plaintiff sued:
1. the shuttle driver for direct negligence
2. the driver’s employer for vicarious liability
3. The driver’s individual supervisors directly for negligent employment
• The supervisors moved to dismiss the claims against them citing Clooney. They argued:
• that claims against the supervisors were concurrent with claim against the employer
• that claims against the supervisors failed because they were acting within the scope of their employment

Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

The Trial Court’s Ruling

• Trial court granted supervisors’ motion to dismiss
• It cited Clooney in support of its ruling that Plaintiff had not alleged a theory of liability against the supervisors that was separate from the theory against the driver’s employer
• Also cited Clooney in support of its ruling that Plaintiff’s claims should be dismissed because the supervisors were acting within the scope of their employment

Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

Plaintiff’s Appeal

• Plaintiff appealed the dismissal of his claims against the supervisors
• We argued that the trial court erred in dismissing the negligent employment claims against the supervisors based on Clooney because:
1. Clooney is inapplicable at the motion to dismiss stage
2. The negligent employment claims against the supervisors imposed additional liability beyond the vicarious liability claim against the employer
3. Clooney does not require additional damages, only additional liability

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Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

The Fourth DCA’s Opinion

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The Fourth DCA reversed the trial court’s dismissal of the negligent employment claims against the supervisors. Regarding the concurrent theories of liability issue, the Fourth DCA said:

Thus, the trial court in the instant case interpreted Clooney and its progeny to prohibit negligent employment claims in all instances where the employer admits the acts causing injury were committed within the scope of employment.

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The trial court's reliance on Clooney was misplaced. In Clooney, the plaintiff did not allege direct negligence against the employer. 352 So. 2d at 1219-20. Instead, the two counts which the trial court struck alleged concurrent theories of recovery based on vicarious liability for the driver. Id. In short, the counts were redundant. Additionally, the negligent employment claims in Clooney were brought against the employer, and not individually against a supervisor. In the instant case, the plaintiff did not plead any negligent employment claims against the employer of the driver causing the accident. Instead, the negligent employment claims were against the supervisors individually, and vicariously against an employer of one of the supervisors (who was not the driver's employer).

Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

The Fourth DCA’s Opinion

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In any case, the Fourth DCA did correctly distinguish Jones from Clooney by noting that in Jones, the direct negligent employment claims were against the supervisors, not against the driver’s employer.

Thus, the trial court in the instant case interpreted Clooney and its progeny to prohibit negligent employment claims in all instances where the employer admits the acts causing injury were committed within the scope of employment.

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The trial court's reliance on Clooney was misplaced. In Clooney, the plaintiff did not allege direct negligence against the employer. 352 So. 2d at 1219-20. Instead, the two counts which the trial court struck alleged concurrent theories of recovery based on vicarious liability for the driver. Id. In short, the counts were redundant. Additionally, the negligent employment claims in Clooney were brought against the employer, and not individually against a supervisor. In the instant case, the plaintiff did not plead any negligent employment claims against the employer of the driver causing the accident. Instead, the negligent employment claims were against the supervisors individually, and vicariously against an employer of one of the supervisors (who was not the driver's employer).

Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

The Fourth DCA’s Opinion

• The Fourth DCA also rejected the argument that a negligent employment claim cannot be brought against the supervisors for negligence committed in the scope of their employment.
• The court recognized that individual officers and agents of a corporation may be held personally liable for their tortious acts, even if such acts were committed within the scope of their employment.
• The court said: “A claim of negligent hiring, training, retention, supervision, or entrustment against a supervisor individually, as opposed to the corporate employer, does not depend on whether the subordinate employee's actions were outside the scope of employment.”
• The Fourth DCA held that the plaintiff could state negligent employment claims against the supervisors, where both the supervisors and the driver were acting within the scope of their employment.

Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

Takeaway 1: Distinguish between separate theories of liability

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Courts and parties—both plaintiffs and defendants—get confused between different theories of liability. The below theories are all separate:

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1. Direct negligence against the driver for causing the accident
2. Vicarious liability against the driver’s employer based on respondeat superior
3. Direct negligence against the driver’s employer for negligent employment
4. Direct negligence against the driver’s supervisors for negligent employment
5. Vicarious liability against the supervisors’ employer based on respondeat superior

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“[V]icarious liability is distinctly different from liability arising directly from the employer's own negligence.” D.J. Young III, American Association for Justice, Override the "Business Immunity Rule”, Trial, 59-FEB JTLATRIAL 20 (February 2023) – Helpful article

Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

Other Cases

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• Argain v. Wayne Transp., LLC, No. 08-80132-CIV, 2009 WL 10668230, at *3 (S.D. Fla. Mar. 5, 2009) (“Argain I”)
• Plaintiff sued driver’s employer AND individual employees who hired the driver
• Defendants moved to dismiss the claims against the hiring employees based on Clooney
• The SDFL denied the motion to dismiss based on Petrik

• See also Argain v. Wayne Transp., LLC, No. 08-80132-CIV, 2009 WL 10668228, at *3 (S.D. Fla. Apr. 29, 2009) (“Argain II”) (adhering to Argain I)

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Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

Takeaway 2: Damages ≠ liability

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See Dunmore – explained that even though the measure of damages were the same, the liability among the three defendants were based on separate theories and subject to comparative negligence apportionment

Jones v. Vasilias, 359 So. 3d 10 (Fla. 4th DCA 2023)

Takeaway 3: Personal/Active Participation

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• The requirement that the corporate officer or agent personally or actively participated in the tort means the tort of negligent employment, not negligent operation of the vehicle
• There still needs to be a causal connecting between the negligent employment and the injury. For example, the poor training or supervision led to the poor driving that caused the accident, or hiring an unfit driver.
• Include detailed allegations of how the supervising employees personally failed to properly hire, train, supervise, entrust…don’t just copy and paste the allegations against the corporate employer
• Allegations cannot just be based on corporate role or administrative duties—courts can get confused here because the supervisor’s responsibilities arise from their role/duties. But you need to allege they had certain personal responsibilities within that role.

Contact Information

Grace Mackey Streicher

Grace@HarrisAppeals.com

561-867-9502

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Nichole J. Segal

NJS@FLAppellateLaw.com

561-721-0400

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