Key Points:
Vicarious liability requires employee negligence: Since the jury found the employee was not negligent, the employer could not be held vicariously liable for his actions.
Direct negligence claims (like negligent training/supervision) against an employer only apply if the employee acted outside the scope of employment.
Claims for negligent supervision may still apply to individual supervisors, but not the corporate employer.
The Fifth District Court of Appeal recently addressed the interplay between vicarious liability and direct negligence claims against an employer. The case arose from injuries sustained by a hotel guest during an altercation with a hotel employee, leading to claims against the hotel operator for both vicarious liability based on the employee’s conduct and direct negligence for alleged negligent training and supervision. The court ultimately clarified that these theories cannot be pursued simultaneously when the employee’s actions are within the scope of employment and the jury finds no underlying negligence.
In Gabor v. Remington Lodging & Hospitality LLC and Robert Henderson, 413 So.3d 261 (Fla. 5th DCA 2025), the plaintiff filed suit against Remington Lodging and Hospitality, LLC, the company that operated the hotel, as well as Henderson, the employee involved in the altercation. The complaint alleged two separate causes of action against Remington: (1) vicarious liability based on Henderson’s conduct and (2) direct negligence by Remington in the form of negligent training and negligent supervision of Henderson. The complaint additionally alleged a claim of action against Henderson for direct negligence.
During the course of litigation, all parties stipulated that Henderson’s actions occurred within the course and scope of his employment with Remington. Based on this fact, Remington moved for a directed verdict on the negligent training and supervision claims. They argued, because Henderson was acting within the course and scope of his employment, they could not be held liable under negligent training and supervision, a theory that is typically reserved for situations in which the employee acts outside the scope of employment. The trial court denied the motion, allowing all three claims to proceed to the jury.
The jury found there was no negligence on the part of Henderson that was the legal cause of damage to the hotel guest, the plaintiff – Michael Gabor. The jury separately found that both Remington and Gabor were the cause of Gabor’s injury, apportioning 80% fault to Gabor and 20% to Remington. Notably, the jury was not asked to specify under which theory of negligence Remington was found liable.
Remington appealed, challenging the trial court’s refusal to grant its motion for directed verdict on the negligent training and supervision claims. The Fifth District Court of Appeal addressed how these claims function when an employer is also facing a vicarious liability theory.
The appellate court first examined the vicarious liability claim. Under Florida law, an employer can be held liable for an employee’s negligent acts committed within the course and scope of employment. However, this theory is wholly dependent on the employee being found negligent. Since the jury found that Henderson was not negligent and did not cause Gabor’s injuries, Remington could not be vicariously liable for his conduct.
The court then turned to the negligent training and supervision claims. These are considered direct negligence claims against the employer and are typically viable only when an employee acts outside the scope of employment. The rationale is that if an employee is acting within the scope of their job duties, the employer’s liability, if any, should fall under vicarious liability rather than a separate claim for negligent supervision. As the parties had stipulated, and the evidence confirmed, that Henderson was acting within the scope of employment, Remington could not be held directly liable under these theories either.
Importantly, the appellate court addressed a common point of confusion in employer liability cases. It explained that, although a corporate employer cannot be held liable for negligent training or supervision where the employee’s actions fall within the scope of employment, a different rule applies when the claim is brought against an individual supervisor. In such cases, Florida law permits claims for negligent hiring, retention, supervision, or training even if the underlying conduct occurred during the course of employment. In this case, however, Gabor did not assert any claim against Henderson’s direct supervisor. As the court noted, this might have been a missed opportunity, but it had no bearing on the outcome of the appeal.
The Court of Appeal ultimately concluded that the trial court erred by denying Remington’s motion for a directed verdict on the negligent training and supervision claims. Because the jury found no negligence on Henderson’s part, and because Remington could not be liable under either theory advanced by Gabor, the appellate court reversed the final judgment and remanded the case with instructions to enter judgment in favor of Remington.
This case serves as a significant reminder of the legal distinctions between vicarious liability and direct negligence claims against employers. Plaintiffs often seek to assert both, hoping that at least one theory will succeed. However, Gabor v. Remington underscores that these claims are not always compatible, especially when an employee’s conduct is undisputedly within the scope of employment and the jury finds no underlying negligence.
Erica is an associate in our Casualty Department. She can be reached at (904) 358-4227 or ERCagan@mdwcg.com.
Defense Digest, Vol. 31, No. 3, September 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
