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September 1, 2017
Amendments to civil jury instructions (Preliminary Issues—Vicarious Liability)

The Supreme Court Committee on Standard Jury Instructions in Civil Cases proposes amendments to Standard Jury Instruction in Civil Cases 402.9 (Preliminary Issues—Vicarious Liability). The amendments will add clarity and remove any possible ambiguity or confusion.

Interested parties have until October 1, 2017, to submit comments electronically or by mail to the Civil Committee at [email protected], or to the chair of the Civil Committee, Rebecca Mercier Vargas, Kreusler-Walsh, Compiani & Vargas, P.A., 501 S. Flagler Drive, Suite 503, West Palm Beach 33401-5913, [email protected], and a copy to the Florida Bar liaison for the committee, Heather Savage Telfer, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-6523, [email protected].



402.9 PRELIMINARY ISSUES — VICARIOUS LIABILITY

On (claimant’s) claim there is a preliminary issue for you to decide. That issue is:

a. Agency:

(1). Employment, including independent contractor and exceptions:

whether (name) was an employee of (defendant) and was acting within the scope of [his] [her] employment at the time and place of the incident in this case. An employee is a person who is hired by (defendant) to act on behalf of (defendant), and whose actions are controlled by (defendant) or are subject to (defendant’s) right of control. An employer is responsible for the negligence of an employee if the negligence occurs while the employee is performing services which [he] [she] was employed to perform or while the employee is acting at least in part because of a desire to serve [his] [her] employer and is doing something that is reasonably incidental to [his] [her] employment or something the doing of which was reasonably foreseeable and reasonably to be expected of persons similarly employed.

[But a person is not responsible for the negligence of an independent contractor or of the agents or employees of an independent contractor. An independent contractor is a [person] [business] engaged by another to perform specific work according to [his] [her] [its] own methods and whose methods of performing the work are not controlled by the person engaging [him] [her] [it] and are not subject to that person’s right of control. Whether a [person] [business] is an independent contractor is to be determined on the basis of all of the circumstances of the parties’ dealings with each other and not on the basis of the labels used by them.

A person is, however, responsible for the negligence of an independent contractor if [the independent contractor is an [actual] [or] [apparent] agent of that person], [the employer did not exercise due care in the [selection] [or] [retention] of the independent contractor] [or] [the employer undertook to perform the services resulting in the injury to (claimant).]*

*The bracketed language contained in the last two paragraphs is only to be used when there is a claim of independent contractor status. See Carlisle v. Carnival Corp., 864 So. 2d 1 (Fla. 3d DCA 2003); Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842 (Fla. 2003). If an exception to independent contractor status is claimed, then the applicable portions of the following provisions should also be given.

[(Name) is an agent if (defendant) authorized [him] [her] to act on (defendant’s) behalf.] [(Name) is an apparent agent if, by words or conduct, (defendant) caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant).] A person is responsible for the negligence of [his] [her] independent contractor if, at the time and place of the incident, the independent contractor was an [agent] [or] [apparent agent] of the employer and was acting within the scope of his or her [apparent] authority.*

*If the court determines that issues on both actual agency and apparent agency should be submitted to the jury, both bracketed sections should be used with appropriate transitional language.

[In [hiring] [or] [retaining] another to perform services, the employer must exercise due care to assure that the person is competent to perform the services. A person is responsible for the negligence of [his] [her] independent contractor if, in [hiring] [or] [retaining] the independent contractor, the employer failed to exercise due care.]

Insigna v. LaBella, 543 So. 2d 209 (Fla. 1989); F.S. 766.110.

[When a [person] [facility] undertakes to perform services, [he] [she] [it] cannot transfer the obligation to perform those services to an independent contractor and remains responsible for the negligence of [his] [her] independent contractor.]

As to nondelegable duties for treatment, see Wax v. Tenet Health Systems Hospital, Inc., 955 So. 2d 1 (Fla. 4th DCA 2006); Pope v. Winter Park Healthcare Group, 939 So. 2d 185 (Fla. 5th DCA 2006); Shands Teaching Hospital Clinic, Inc. v. Juliana, 863 So. 2d 343 (Fla. 1st DCA 2003); Irving v. Doctors Hospital of Lake Worth, Inc., 415 So. 2d 55 (Fla. 4th DCA 1982). There is, however, no civil liability under F.S. 458.320(2)(b) to ensure that staff physicians are financially responsible. Horowitz v. Plantation General Hospital Limited Partnership, 959 So. 2d 176 (Fla. 2007).

(2). Agency without claim of independent contractor:

whether (name) is an agent of (defendant) [(name) is an agent of (defendant) if (defendant) authorized [him] [her] to act on (defendant’s) behalf.] [(name) is an apparent agent if, by words or conduct, (defendant) caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant).] A person is responsible for the negligence of an [agent] [or] [apparent agent] if at the time and place of the incident complained of the [agent] [or] [apparent agent] is acting within the scope of [his] [her] [apparent] authority.



NOTE ON USE FOR 402.9a(2)

Roessler v. Novak, 858 So. 2d 1158 (Fla. 2d DCA 2003); Orlando Regional Medical Center v. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990). If the court determines that issues on both actual agency and apparent agency should be submitted to the jury, both bracketed sections should be used with appropriate transitional language.

b. Joint venture:

whether at the time and place of the incident complained of, (name) was engaged in a joint venture with (defendant) and was acting on behalf of the joint venture and within the scope of its business at the time and place of the incident in this case. A joint venture exists when two or more persons combine their resources or efforts and agree to undertake some particular business transaction in which they have common interests in the purposes to be accomplished, joint control or right of control of the venture, joint ownership interest in the subject matter of the venture and a common right and duty to share in profits and losses. Each member of a joint venture is responsible for the negligence of another member if the other member’s negligence occurs while [he] [she] is acting on behalf of the joint venture and to further the purpose of the joint venture.



NOTE ON USE FOR 402.9b

Arango v. Reyka, 507 So. 2d 1211 (Fla. 4th DCA 1987).

[Revised: 12-15-2017]