Brittini Zuppardo was talking with one of her employer’s court reporters, Michelle Halkett, while driving home from her boyfriend’s house late one evening. Ms. Zuppardo was still on the phone when her vehicle crashed into Plaintiff Jessica Ayon, a pedestrian. Ms. Ayon sustained significant injuries. The police report indicated that Ms. Zuppardo was on the phone with “one of her court reporters” when the collision occurred.
Ms. Zuppardo was a scheduling manager for Esquire Deposition Solutions (Esquire) at the time of the accident. She generally worked from 8:30 a.m. to 5:00 p.m. Using a phone to schedule court reporters for depositions during work hours was an integral part of Ms. Zuppardo’s job. However, calling court reporters after normal business hours was not within Ms. Zuppardo’s job description. Most calls were handled on a land line during the day, but after office hours, Ms. Zuppardo used her cell phone to find a replacement only on rare occasions. Esquire also had a policy forbidding employees from using a cell phone for work-related purposes while driving.
On the evening of the accident, Ms. Zuppardo and Ms. Halkett both testified that they were speaking on the phone for strictly personal reasons because the two women were close friends.
At issue in this case was whether Esquire could be held liable for Ms. Ayon’s injuries under a theory of respondeat superior. Ayon v. Esquire Deposition Solutions, LLC, 4th Dist. Case No. G054578, G055396 (filed September 21, 2018). The trial court found that there was no evidence that Ms. Zuppardo was driving in the course and scope of employment at the time of the accident. Ms. Zuppardo was not performing an errand for work and not talking on the phone about a work-related issue. Thus, the trial court granted Esquire’s Motion for Summary Judgment on the grounds that Esquire was not vicariously liable for any of the injuries that Ms. Zuppardo caused. Ms. Ayon appealed.
Under the doctrine of respondeat superior, an employer is vicariously liable for torts committed by its employees in the course and scope of employment. The incident leading to the injury must be an outgrowth of the employment and the risk of injury must be foreseeable. Here, Ms. Ayon contended Esquire was liable because Ms. Zuppardo was calling Ms. Halkett concerning a scheduling issue. The court conceded that a cell phone call could give rise to respondeat superior liability in some cases. In this case, Ms. Ayon argued that a jury could infer that Ms. Zuppardo and Ms. Halkett were discussing a work-related matter based on circumstantial evidence. However, the court decided the circumstantial evidence was insufficient and that denying summary judgment on the basis of credibility of the moving party’s witnesses was not enough.
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