You work hard to make an honest living. You own your own business, and your business includes company vehicles. One morning, you turn on the local news, take your first sip of coffee, and nearly spit it out as you see your company vehicle crashed through the window of an area business when the headline reads, “Police Arrest One Man In Connection With Burglary.” Now that you’ve actually swallowed your coffee, your jaw can drop as that one man is your employee. Bottom line: are you, as the business and vehicle owner, responsible – or liable – for his criminal actions?
First, let’s familiarize ourselves with the basic principle of vicarious liability[1]. Simply stated, this is a legal doctrine wherein the employer is on the hook for the actions of its employees[2]. “Florida law is well settled that an employer is not vicariously liable for an employee’s actions when the employee is acting outside the scope of his or her employment. See Bennett v. Godfather’s Pizza, Inc., 570 So. 2d 1351, 1353–54 (Fla. 3d DCA 1990) (holding an employer is vicariously liable to third parties when an employee’s negligent acts are committed within the scope and course of his or her employment). An employee is not acting within the scope of his or her employment “if it can be found that the employee had ‘stepped away’ from or abandoned the employer’s business at the time the tort was committed.” Johnson v. Gulf Life Ins. Co., 429 So. 2d 744, 746 (Fla. 3d DCA 1983). Campo v. Uber Techs., Inc., 407 So. 3d 503, 506 (Fla. Dist. Ct. App. 2025), reh’g denied (Mar. 27, 2025), review denied sub nom. Campo v. Uber Techs., No. SC2025-0581, 2025 WL 2993494 (Fla. Oct. 24, 2025).” Here, if the employer had no idea that its employee stole the company vehicle and engaged in a personal crime spree, this would be an open and shut case and absolve the employer from liability. This would also be a brief and boring article if those were all the facts. Instead, let’s assume the following information: the employee recently fell on hard times, his own personal vehicle was repossessed, and a good-natured employer offered the company vehicle to the employee to use at all times until he got back on his feet. Additionally, the employer knew that the employee was a known drug user, had a prior DUI, or had a prior theft, for example. A strong argument can then be made that the employer is liable for any resulting conduct. Importantly, the analysis starts to tip based upon employer’s knowledge regarding employee.
To that end, another legal principle steps in: negligent hiring and/or negligent retention. “The principal difference between negligent hiring and negligent retention as bases for employer liability is the time at which the employer is charged with knowledge of the employee’s unfitness. Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee’s unfitness, and the issue of liability primarily focuses upon the adequacy of the employer’s pre-employment investigation into the employee’s background. See, e.g., Williams v. Feathersound, Inc., 386 So.2d 1238 (Fla. 2d DCA 1980), petition for review denied, 392 So.2d 1374 (1981); Abbott. Negligent retention, on the other hand, occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action, such as investigating, discharge, or reassignment. See, e.g., McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419 (1947); Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12 (1943); see also, Riddle v. Aero Mayflower Transit Co., 73 So.2d 71 (Fla.1954). Garcia v. Duffy, 492 So. 2d 435, 438–39 (Fla. Dist. Ct. App. 1986).” As such, we would have to ask ourselves, did the employer have knowledge as to employee’s “unfitness” and when did this knowledge occur? If employer knew about employee’s “unfitness” prior to hire or during employment and failed to appropriately intervene, employer might want to savor that hot cup of coffee he was drinking as it might be some time before he can afford another good cup. Alternatively, if employer found out about employee’s nefarious history after this criminal action despite due diligence (i.e. employer conducted appropriate background checks, etc.), this employer might very well be in the clear.
To simplify: Courts will weigh whether the employee’s action at the time of the crime was within the scope of employment. Generally speaking, legally sound businesses are not in the business of crime, so that is often a quick analysis. It should go without saying that if the employer is found to have participated in the employee’s crime, then criminal exposure is certainly on the table. More often than not, employers are left to contend with civil exposure where the legal analysis hinges on whether an employer knew or should have known about the “unfitness” of the employee. This latter analysis is where employers might find themselves in trouble.
To that end, this article would be incomplete without offering legal advice. If you are an employer, you must protect yourself and your business. Specific to this scenario, where a business has its own company vehicles, protection is two-fold. It starts with prevention and ends with mitigation. Prevention is your sword, and mitigation is your shield.
First, hire the right folks. Do your due diligence: spend the extra time and money in conducting comprehensive background checks on potential employees. Do the database searches, ask for prior addresses so you can search county criminal records, and take the time to call and speak with former employers/co-workers. These background checks that you perform serve as your protection. Additionally, retain the right folks. If new information comes to light during an employee’s employment with your company that is or could be adverse to your company, speak directly with that employee. Was it an accident, could it be reasonably explained, are they taking steps to remedy, or is the employee drinking on the job, committing crimes, etc.? If the latter, the employer should terminate the employee, given the employee’s commitment to perpetuate criminal or potentially criminal behavior. Again, the employer’s knowledge as to employee’s action is the hook that Courts look to when examining an employer’s liability.
As for mitigation, get insurance coverage. This is not an area to go cheap. If your business utilizes fleet vehicles to conduct company business and you allow your employees to operate these vehicles, those vehicles need appropriate coverage. Oftentimes, when a Plaintiff files a lawsuit, they may get “excited” knowing there is a company or corporation involved because most companies have higher policy coverage limits than private citizens. These higher policy coverage limits are aimed at protecting and insulating you as the business owner from excess judgments. Employers might also want to install GPS trackers to monitor an employee’s speed and driving patterns. If noncompliant driving is observed, an employer needs to take swift action to correct. Further, where your company vehicles are parked matters. Ensure they are locked at the end of the workday and consider parking them in a secure, fenced-in area, which creates another tier of security. Another layer of mitigation is completely free: communicate with your employees. Set clear rules and policies, in writing. For example, establish that vehicles are for company use only, during business hours only, and for business purposes. Also, consider storing company vehicle keys in a locked box that is controlled by you, the owner.
As with any legal matter, facts are case-specific and those facts and details matter tremendously. As such, it is recommended you consult with counsel if you ever find yourself being sued due to the actions of your employee.
[1] In the employment setting, this is also known as Respondeat Superior.
[2] An important note, this article addresses employer’s liability as to employees, not independent contractors (“IC”). ICs trigger nuanced and potentially distinct categories of liability.