04-0246 TOTAL REHAB. V. E.B.O.

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State: Florida

Court: Florida Third District Court

Docket No: 04-0246 TOTAL REHAB. V. E.B.O.

Case Date: 11/16/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

TOTAL REHABILITATION & MEDICAL CENTERS, INC., Appellant,

** ** ** CASE NO. 3D04-246

vs. ** E.B.O., ** Appellee. ** LOWER TRIBUNAL NO. 01-14893

Opinion filed November 16, 2005. An Appeal from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge. Conroy, Simberg, Ganon, Krevans & Abel, and Hinda Klein (Hollywood), for appellant. Befera & Peterson, Bernard, for appellee. and Steven P. Befera and Peterson

Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge. SHEPHERD, J.

The appellant, Total Rehabilitation and Medical Centers, Inc. (Total Rehab), appeals an order denying its motion for

judgment notwithstanding a jury verdict, which found Total Rehab liable for the negligent supervision of a male employee who raped a female patient in the rear of a company-owned van during the course of his assigned responsibility to transport her

between two Total Rehab-related facilities.

The victim, E.B.O.,

cross-appeals a directed verdict suffered by her on her claim that Total Rehab nevertheless is liable for the battery because it is a common carrier in the operation of its transportation service, subjecting it to a higher degree of responsibility. We

affirm the directed verdict rendered against E.B.O. by the trial court, and, at the same time, reverse the post-trial order

denying Total Rehab's motion for judgment notwithstanding the verdict. Facts Although disputed by him, the facts of this case would reveal that E.B.O. was raped by Jose Luis Laverde, a Total Rehab employee, in the rear of a van owned by Total Rehab, on the return trip from one Total Rehab-related facility to another Total Rehab facility. Laverde, the assigned driver for the

voyage, had driven E.B.O alone to Fort Lauderdale for a M.R.I. According to the testimony of E.B.O., Laverde took advantage of her on the return trip, while she was semi-conscious from

sedation. strictly

E.B.O.'s theory of the case is that Total Rehab is liable for the intentional tort committed by its

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employee because it is a statutory common carrier under Florida law, and also that it is liable for negligent supervision by its placement of Laverde, a male, in the sole accompaniment of a female patient who Total Rehab knew would be of diminished

capacity during a portion of the trip.

It is undisputed that

Laverde had no prior history of misconduct that would place Total Rehab on notice that Laverde would misbehave in this

manner. 1 Discussion For more than fifty years, Florida courts have recognized the viability of a common law cause of action for the negligent supervision of an employee. See Malicki v. Doe, 814 So. 2d 347,

361 (Fla. 2002); Mallory v. O'Neil, 69 So. 2d 313, 315 (Fla. 1954)(adopting Section 317 of the First Restatement of Torts as "a sound rule"). Section 317 of the Restatement (Second) of

Torts (1965), which language is identical to that in the First Restatement, provides:

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