No Vicarious Liability for Off-Duty Employee Conduct: Scope of Employment in Florida Negligence Claims

Introduction

Christine Cichowski et al. (“the Cichowskis”) sued CVS Pharmacy, Inc. (“CVS”) in the Middle District of Florida, alleging that a CVS pharmaceutical technician, Sophanath Kes, stalked them at night after accepting a service-of-process assignment in a debt-collection case against a family member. The district court granted CVS’s motion for judgment on the pleadings (Fed. R. Civ. P. 12(c)), finding that the complaint failed to state a viable negligence claim. The Cichowskis, proceeding pro se, appealed to the Eleventh Circuit, arguing that CVS owed—and breached—a legal duty to them. In its December 2, 2024 per curiam opinion, the Court of Appeals affirmed, clarifying the limits of vicarious liability and employer responsibility under Florida law when an employee’s misconduct occurs outside the scope of employment.

Summary of the Judgment

The Eleventh Circuit reviewed the grant of judgment on the pleadings de novo, accepting all factual allegations in the second amended complaint as true. Under Florida law, a negligence claim requires:

  1. a duty of care;
  2. a breach of that duty;
  3. causation; and
  4. actual harm.

The court held that: (1) Kes’s alleged stalking took place outside the “authorized time and space” of his employment and was not motivated by any purpose to serve CVS; (2) therefore, CVS could not be vicariously liable for Kes’s off-duty misconduct; and (3) the complaint contained no facts showing negligent hiring or supervision by CVS. The court declined to consider new issues raised for the first time on appeal. It affirmed the district court’s judgment in favor of CVS.

Analysis

Precedents Cited

  • Perez v. Wells Fargo N.A., 774 F.3d 1329 (11th Cir. 2014): Established the standard for reviewing judgment on the pleadings under Rule 12(c), accepting all well-pleaded facts in the non-movant’s favor.
  • McGhee v. Volusia County, 679 So. 2d 729 (Fla. 1996): Defined “scope of employment” as conduct occurring substantially within authorized time and space and motivated, at least in part, by a purpose to serve the employer.
  • Mercury Motors Exp., Inc. v. Smith, 393 So. 2d 545 (Fla. 1981): Held that an employer is vicariously liable for negligent acts of employees within the scope of employment.
  • McLeod v. W.S. Merrell Co., 174 So. 2d 736 (Fla. 1965): Defined the standard of care owed by pharmacists, including proper compounding, due care in filling prescriptions, and freedom from adulteration.
  • Malicki v. Doe, 814 So. 2d 347 (Fla. 2002): Articulated the elements of negligent hiring and negligent supervision under Florida law.
  • Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938): Mandated application of state substantive law in federal diversity cases.

Legal Reasoning

The court began by restating Florida’s four-element negligence test (Williams v. Davis, 974 So. 2d 1052 (Fla. 2007)). It then examined whether Kes’s alleged stalking conduct occurred within the scope of his CVS employment. Relying on McGhee, the court found that a nighttime stalking spree—unrelated to any pharmaceutical duties and undertaken to serve a private debt-collection assignment—fell outside the spatial and temporal bounds of Kes’s job responsibilities. Consequently, CVS could not be vicariously liable for compensatory damages under Mercury Motors.

The court also considered theories of negligent hiring and negligent supervision. Under Malicki, a plaintiff must show that an appropriate pre-employment investigation would have revealed the employee’s unsuitability for the job (negligent hiring) or that the employer knew (or should have known) of the employee’s unfitness and failed to act (negligent supervision). The Cichowskis’ sparse allegations—that Kes worked as both a pharmacy technician and a process server—did not, as a matter of law, render him unfit to fill prescriptions or put CVS on notice of a risk. Nor did those facts breach the standard of care established in McLeod.

Impact

This decision reinforces two important principles in Florida negligence jurisprudence:

  • Employers are not vicariously liable for off-duty employee misconduct absent a clear connection to the employee’s job duties.
  • The mere existence of a dual role (pharmacy technician/process server) does not, by itself, give rise to negligent hiring or supervision claims unless additional facts show unsuitability or notice of risk.

Future litigants and trial courts will look to this ruling when defining the scope of employment for service-related staff in healthcare settings and evaluating thinly pleaded negligence claims against corporate employers.

Complex Concepts Simplified

  • Scope of Employment: Conduct is “within the scope” if it occurs during work hours, on the employer’s premises (or in areas where the employee is authorized to be), and is at least partly intended to benefit the employer.
  • Judgment on the Pleadings (Rule 12(c)): A procedural device allowing a court to decide a case solely on the complaint (and any written instruments attached) when there are no disputed material facts and one party is entitled to judgment as a matter of law.
  • Negligent Hiring vs. Vicarious Liability: Vicarious liability is when an employer is automatically responsible for employee acts within the scope of employment; negligent hiring requires proof that the employer should have foreseen the employee’s unfitness before or after hiring and failed to take action.

Conclusion

In Christine Cichowski v. Kes, the Eleventh Circuit affirmed that CVS owed no legal duty to the Cichowskis for Kes’s off-duty stalking. By drawing a clear line around the scope of employment and reinforcing the stringent requirements for negligent hiring and supervision claims, the court provided important guidance on the limits of employer liability in Florida. This ruling will serve as a touchstone for future negligence disputes involving employees who engage in unrelated, private misconduct outside their official roles.