In McKee v. Crestline Hotels & Resorts, LLC, No. 4D2022-3428 (Fla. 4th DCA Jan. 10, 2024), Kubicki Draper’s own Sharon C. Degnan argued—and the Fourth District Court of Appeal held—that an employee was not engaged in the course and scope of employment when he struck two pedestrians while driving his personal vehicle home and, around that same time, used his personal cell phone to make what might have been a work-related phone call. In holding the driver’s employer was not vicariously liable for the employee’s conduct at the time of loss, the court applied the vicarious liability test outlined in Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74, 76 (Fla. 3d DCA 1990), concluding that the “act of using a personal cellular phone while driving home from work is not the kind of act [the employee] was hired to perform,” nor was driving or using a personal cell phone an integral part of the employee’s job. The court explained that “[t]he cost of negligence in such circumstances should be imposed on the owner or operator of the vehicle—not the employer.” See the full opinion here. 

For more information about this case and/or to discuss similar matters, do not hesitate to reach out to Sharon C. Degnan at (407) 419-3812 | scd@kubickidraper.com.