Jeffrey P. Gale, P.A. /// Cause of Action Under “Assisted Living Facilities Act” Arising From Intentional Tort

The purpose of the “Assisted Living Facilities Act,” contained in Chapter 429 of the Florida Statutes, is to

“promote the availability of appropriate services for elderly persons and adults with disabilities in the least restrictive and most homelike environment, to encourage the development of facilities that promote the dignity, individuality, privacy, and decisionmaking ability of such persons, to provide for the health, safety, and welfare of residents of assisted living facilities in the state, to promote continued improvement of such facilities, to encourage the development of innovative and affordable facilities particularly for persons with low to moderate incomes, to ensure that all agencies of the state cooperate in the protection of such residents, and to ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such facilities through the efforts of the Agency for Health Care Administration, the Department of Elderly Affairs, the Department of Children and Families, the Department of Health, assisted living facilities, and other community agencies.”

Section 429.01(2), Florida Statutes (2025)

Under Florida law, it is well established that an employer is not vicariously liable for an employee’s intentional misconduct, including acts such as sexual assault or battery. Weiss v. Jacobson, 62 So. 2d 904, 906 (Fla. 1953); see Trabulsy v. Publix Super Mkt., Inc., 138 So. 3d 553, 555 (Fla. 5th DCA 2014) (quoting same).

Vicarious liability is a legal doctrine that holds one party responsible for the wrongful acts of another, even if the first party did not commit the act itself.

In employment law, it most often means:

An employer can be held liable for the negligent or wrongful acts of an employee if those acts were committed within the course and scope of employment, and in furtherance of the employer’s business.

It’s sometimes called respondeat superior (“let the master answer”).

If an assisted living facility cannot be held vicariously liable for the intentional misconduct of its employees, how then does the Act’s purpose remain fulfilled?

This question is critical because employees who commit intentional acts are typically excluded from liability insurance coverage and, in most cases, lack the personal financial means to satisfy a judgment. An alternative legal avenue must be crafted to ensure the employer is held accountable

The most direct path to liability is showing that the facility itself breached its duty to a resident by negligently hiring the offending employee, failing to properly supervise and monitor that employee, or by failing to implement adequate policies and procedures. Any such violation undermines and breaches the very purpose of the Act, and they rest on the employer’s own negligence, rather than on a theory of vicarious liability. The employer’s liability insurance will cover this tort.

A colleague recently asked for our thoughts on a lawsuit against an assisted living facility, premised on these principles, arising from the sexual assault of a resident by one of its employees. We agreed that the claim was on solid ground. The discussion reminded us of our successful lawsuit against a furniture store after one of its deliverymen brutally assaulted our client. In that case, we discovered the deliveryman had a prior history of assault and was widely regarded at work as a troublemaker. While the setting differed from an assisted living facility, the same legal principles applied.

*********************************************************

Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.