Fighting Words and Employer Liability

By Michael J. Gelfand, Esq. / Published September 2018

“Fighting Words”: As Incendiary Speech Moves From Cable News To The Meeting Rooms, is it Criminal?

     What happens if an owner or a “guest” becomes boisterous and disruptive at an association meeting? If the police are called, can the disrupter be charged with the crime of disorderly conduct? It may depend on whether the disruption involved “fighting words.”

     In a lesson for Florida community associations on the limits of law enforcement authority, a Florida appellate court recently reversed a criminal conviction for disorderly conduct because the defendant did not pose an imminent danger to others. Presenting facts that an association director or manager may find strange, but analogous to what seemingly occurs at association meetings, is Fleury v. State of Florida, 43 Fla. L. Weekly D 979 (Fla. 4th DCA, May 2, 2018).

     Not that community association meetings necessarily are reduced to the reptile levels, but the appellate court’s decision indicated that the defendant went to a pet store to purchase a lizard. After being told that the store would not sell him the lizard because the manager did not think the defendant could take care of the lizard, the defendant refused to leave. The police were called. The defendant became boisterous, cursing at the deputies. After the defendant was arrested, a jury found the defendant guilty of disorderly conduct.

     The Florida appellate court found that the evidence, instead of showing that the defendant posed an imminent danger to others, showed that the defendant did not threaten any violence or participate in any violent act until after he was arrested for disorderly conduct. The crime of disorderly conduct is set forth in Section 877.03, Fla. Stat. (2016):

                     Whoever commits such acts as are of a nature to corrupt the public morals, or outrage
                the sense of public decency, or affect the peace and quiet of persons who may witness them,
                or engages in brawling or fighting, or engages in such conduct as to constitute a breach of
                the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree.

     The court explained that “fighting words” were required to constitute a violation of the disorderly conduct statute. Mere boisterous behavior is not enough. Even if the behavior is disruptive to a business, that is not sufficient grounds for a disorderly conduct conviction.

     So how far can a disputer go in a meeting? The answer appears to be that “fighting words” are necessary before a person can be criminally charged with disorderly conduct. In other words, the person must pose an imminent danger to others or the words must incite others to breach the peace. Just disrupting a business or a meeting would not be enough for a disorderly conduct conviction.

     Do not forget that there are frequently other options to ensure decorum. Does your association have restrictions on conduct at meetings? If the disruptive person is not an owner, does that person have a right to attend the meeting, or is the “guest” actually a trespasser? How has the association treated similar situations? There are parliamentary tools that can assist. Check with your association attorney as to what you can do now to avoid problems in the future.

When Can an Employer Be Held Liable For Assault and Battery Committed by an Employee?

     What happens if an association employee commits an assault? Can the association be held liable? It may depend on whether the conduct was within the “scope” of the worker’s employment. Thus, the question is, when can an employer be liable for an employee’s conduct?

     A Florida appellate court recently addressed the issue of “vicarious liability” in a situation that could apply to a Florida community association. In an action against a company to hold it liable for an intentional assault and battery by its employee, the court ruled that the trial

court erred in granting summary judgment for the defendant where the defendant did not offer any evidence that the employee’s conduct was outside the scope of his employment.

     In Fields v. The Devereux Foundation, 43 Fla. L. Weekly D 1019 (Fla. 2nd DCA, May 4, 2018), the facts indicate that Fields was the paternal grandmother of a minor who lived with his father and grandmother. Devereux Foundation was hired to facilitate visitations with the minor’s mother. An employee of Devereux, hired as the case manager, visited Fields’ home and informed Fields that he was to take the minor for a visitation with his mother. When Fields refused to hand over the minor, the employee became aggressive and allegedly cocked his fist as if to strike Fields, causing her to fall backward into the door frame. Fields sued Devereux for assault and battery, asserting the company was vicariously liable for the employee’s conduct. The trial court granted summary judgment for Devereux.

     The Florida appellate court reversed the final summary judgment for the employer. The court explained that a Florida employer is vicariously liable for an employee’s tortious conduct when the conduct occurs within the scope of the employment. Here, Fields alleged that the employee assaulted and battered her while he was trying to take the minor to visit his mother, a task that the employee was hired by Devereux to perform. The appellate court determined that summary judgment was inappropriate because Devereux did not offer any evidence to show that the employee’s conduct did not occur in the scope of his employment.

     This case is important because it shows how an employer, i.e. an association, can be held liable for intentional torts committed by an employee if the conduct is committed within the scope of the employment. This adds another reason why it is important to confirm that you have adequate pre-employment screening, post-hiring education, and liability insurance.

Michael J. Gelfand, Esq.

Senior Partner of Gelfand & Arpe, P.A.

Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a Florida Bar Board-Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or (561) 655-6224.