01/08/2010 1G:35 FAX 2024835142 FAA 

BiiFdRE UNITED STATES DEPARTMENT OF TRANS 

* DMS iOOI/011 

JAN - 7 2010 

TNTHE MA'I'lEROF 

SOUTHWEST AIRFRAME ANi:) TANK 

SERVICHS, 

Respondcm, 

FAA Investigation No.: 2008SO700215 

FAA Docket No.: CPSOOOl 0 

DMS No. FAA-2009-0723 

The Uonorable Judge Isaac D. Benkin 

PRE-TRIAL BRIEF: MEMORANDUM OF 

POINTS AND AUTHORITIES OF LAW 

(RESPONDEAT SUPERIOR) 

The following Memorandum of Points and Authorities is offered to facilitate trial in 

the above-captioned matter. It addresses the law of Respondeat Superior as it 

applies to this case. 

The reason that respondeat superior \& a key issue in this case is because there 

is a longstanding principle that the actions of ordinary employees are normally 

not Imputable to the employer. Gee v. Principi. 289 F.3d 342, 346 (5th Gir. 

2002). They are only Imputable when it is shown that respondeat superior (or 

some other analogous theory of vicarious liability) applies. 

1. Florida Law of Respondeat Superior Applies to the Case at 

Bar 

This case concerns a toolbox that was shipped via Fedex by Mr. Alex 

Pyatigorsky. At the time of the shipment, Mr. Pyatigorsky was on his way home 

to Boynton Beach, Florida after completing a job in Tampa, Florida, His route 

home took a detour, though, when he got into an automobile accident in his 

personal vehicle. After being advised by the President of the company to rent a 

car and use it to return home, Mr. F^yatigorsky decided instead to fly home. After 

deciding to fly home, he decided to ship his tools to his home via FedEx service. 

SOUTHWEST AIRFRAME AND 1 ANK-'S PRiiTRIAL POINT.S AND AUTTfORlllES 

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Law Offices of Jason A. Dicksliiin 

2233 Wisconsin Avenue, NW. Siiiie 503 

Washington, DC 20007 -Tel: 202-628-8947 
01/08/201 0 1G:35 FAX 2024935142 FAA ^ DM S @l002/0n 

The shipment reflects a potential regulatory violation because the Administrator 

of the FAA alleges that the toolbox in the shipment contained hazardous 

materials. 

One of the key issues in this case will be whether the Respondent, Southwest 

Airframe and Tank, is responsible for the alleged acts of Alex Pyatigorsky. The 

government alleges that Southwest Airframe and Tank is vicariously responsible 

under the doctrine of rsspondeat superior. 

There is no federal law of respondeat superior. E.g. Moneil v. Department of 

Soc. Svcs.. 436 U.S. 658, 693 (1978) (explaining that Congress chose not to 

create a federal law of respondeat superior in the Civil Rights Act, and indicating 

by corollary that there is no general federal law of respondeat superior). Instead, 

the courts "borrow" substantive state law from the state in which the alleged 

violation occurred. 

In this case, it is undisputed that the alleged violation (this alleged shipment) 

occurred in Florida, so Florida law applies with respect to interpretation of the 

doctrine of respondeat superior. 

2. Under Florida Law, Respondeat Superior Only Applies 

Where the Act (1) Was Within the Scope of Employment 

AND (2) Furthers a Purpose or Interest of the Employer 

Under the doctrine of respondeat superior, an employer cannot be held liable for 

the act of an employee, unless the act was committed (1) within the scope of the 

employment and (2) to further a purpose or interest of the employer, United 

Technologies Corp. v. Mazer. 556 F.3d 1260. 1271 (if^Cir. 2009V reiving on 

Iglesia Cristiana La Casa Del Senor, Inc. v. L.M.. 783 So.2d 353, 356 (Fla. 2001). 

SOUTHWEST AlKFKAMli AND TANK'S PRETRIAL POl>jrS AND AUTHORITIES 

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Washington Aviation Group, PC and tfic 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, MW, Suite 503 

Wa.shineton. DC 20007 -Tel: 202-628-8947 
01/08/201 0 1G:35 FAX 2024935142 FAA * DMS Eioos/on 

a. Under Florida Law, "Scope of Employment" Has Three 

Elements 

Under Florida law, an action falls within the scope of employment if the conduct: 

(1) is of the kind the employee was employed to perfonm; (2) occurred within the 

time and space limits of the employee's employment; and (3) was activated at 

least in part by a purpose to serve the employment. Spencer v. Assurance Co. of 

Am.. 39F.3d 1146. 1150 (11th Cir. 1994): Iglesia Cristiana. 783 So.2d at 357. In 

order to show prevail at trial, the Administrator must prove each of these three 

elements. 

Southwest Airframe and Tank only needs to show that the government has failed 

to make its case on one of the three elements of "scope of employment." 

However, in this case, the government is a triple loser - the government cannot 

support its case on any of the three elements. 

The first element to be analyzed is whether the conduct was "of the kind the 

employee was employed to perform." United Technologies Corp. v. Mazer, 556 

F.3d 1260. 1271 (11* Cir. 2009). In this case, Mr. Pyatigorsky was hired to ***. 

Shipping is not within his job description. He does not have general authority to 

ship article on behalf of the company, and he did not receive specific authority to 

make the shipment from Tampa that is at issue in this case. With neither general 

nor specific authority, he was not authorized to make a shipment. 

SOUTHWEST AIRFRAME AND TAMK'S PRETRIAL POINTS AND AUTHORITIES 

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Washington Aviation Group, PC and the 

Law Offices of Ja-son A. Dickstein 

2233 Wi.sconsin Avenue, NW. Suiie 503 

Washington, DC 20007 • Tel: 202-628-8947 
01/08/201 0 1G:35 FAX 2024935142 FAA + DMS 0004/01 1 

In examining whether conduct was "of the kind the employee was employed to 

perform," the Florida Courts have held that the employers reasonable ability to 

anticipate the employee's conduct is a key consideration. Weiss v. Jacobson, 62 

So.2d 904, 906 (Fla. 1953) (whether the employee's act was something which 

the employment contemplated). 

The liability of the master for intentional acts which constitute legal wrongs 

can only arise when that which is done Is within the real or apparent scope 

of the master's business. It does not arise where the servant has stepped 

aside from his employment to commit a tort which the master neither 

directed in fact, nor could be supposed, from the nature of his 

employment, to have authorized or expected the sen/ant to do. Id. at 906. 

The second element to be examined in determining whether an act falls within 

the scope of employment is to examine whether the act occurred within the time 

and space limits of the employee's employment. United Technologies Corp. v. 

Mazer. 556 F.3d 1260. 1271 (1V^ Cir. 2009). 

In this case, the evidence will show that Mr. Pyatigorsky had already left the job 

site in his own car and was driving home when he got into an automobile 

accident. His brother-in-law picked him up. He spoke to his boss about renting a 

car and driving home. Under the fact pattern, there was no need for him to ship 

anything, and there was no way that a reasonable employer could anticipate that 

he would ship anything to anywhere. 

The facts will clearly show that it was Mr. Pyatigorsky who unilaterally decided to 

ship his tools home. He did this for his own convenience, when the employer 

thought that he would be driving the tools home. 

SOUTHWEST AIRFRAME AND TANK'S PRETRIAL POINTS AND AUTHORHIE S 

I*age 4 

Washington Aviation Group. PC and the 

I.aw Offices of.ra.5on A. Diclc.stein 

2233 Wisconsin Avenue, NW, Suire 503 

Washington, DC 20007 -Tel: 202-628-8947 
01/08/201 0 1G:35 FAX 2024835142 FAA + DMS 0005/01 1 

When Mr. Pyatigorsky chose to ship his tools home, he had already left the job 

site. He diverted from his expected route - returning home - after he had an 

accident in his personal vehicle. The shipment at issue in this case did not 

occur within the time and space limits of Mr. Pyatigorsky's employment. 

The third and final element to be examined was whether the act was motivated at 

least in part by a purpose to serve the employer. United Technolooies Corp. v. 

Mazer, 556 F.3d 1260. 1271 (11'^ Cir. 2009). 

In this case, Mr. Pyatigorsky was sending his tools to his own home at 1112 

Renaissance Way, Boynton Beach, FL 33426. The tools were not addressed to 

any Southwest Airframe and Tank facility nor to any Southwest Airframe and 

Tank job site. It is clear that Mr. Pyatigorsky's motivation was to get his tools 

home - not to serve the interests of his employer. 

Thus, Southwest Airframe and Tank received no benefit from the shipment of Mr. 

Pyatigorsky's tools, and there was no contemplation of direct benefit to 

Southwest Airframe and Tank. 

In addition to the fact that all three of the elements of "scope of employment" 

suggest that this act was outside the scope of employment, it is also well settled 

that an employee is not acting within the scope of his 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., 429 So.2d 

744, 746 (Fla. DCA 1983) (relying on Miami v. Simpson. 172 So.2d 435 

(Fla. 1965) and Weiss v. Jacobson, 62 So.2d 904 (Fla. 1953)). Mr. Pyatigorsky 

was on his way back home - his employer had advised him on a method to get 

home and he chose another method. After Mr. Pyatigorsky chose to take a route 

home that was explicitly contrary to that recommended by his employer, he then 

embarked upon the course of action that led him to make the shipment at issue 

SOUTI IWl-:s |- AIRIRAMIi AND TANK'S PRE- Washington Aviation Group, PC and the 

TRIAL POINTS AND AUTHORITIES Law Offices of Ja-son A. Dicksicin 

Page 5 2233 Wisconsin Avenue, NW, Suiie 503 

Washington, DC 20007 -TeL 202-628-8947 
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in this case. Clearly, he had stepped away from his employer's business during 

his trip home, in light of the fact that he made commuting choices contrary to the 

employer's instructions. 

For each of the three reasons described, the act at issue in this case - the 

shipping of the tools - did not fall within the scope of employment. 

b. The Shipment Did Further a Purpose or Interest of the 

Employer 

In this case, Mr. Pyatigorsky was sending his tools to his own home at 1112 

Renaissance Way, Boynton Beach, FL 33426. The tools were not addressed to 

any Southwest Airframe and Tank facility nor to any Southwest Airframe and 

Tank job site. As discussed previously, Mr. Pyatigorsky's actions suggest that 

the sole motivation for the shipment was to facilitate Mr. Pyatigorsky's return 

home. 

In addition, though, Southwest Airframe and Tank received no benefit from the 

shipment of Mr. Pyatigorsky's tools, and there was no contemplation of direct 

benefit to Southwest Airframe and Tank. No interest of Southwest Airframe and 

Tank was furthered by shipping the tools to Mr. Pyatigorsky's home. 

Even if one were to argue that Southwest Airframe and Tank indirectly benefits 

from the preservation of the tools, such a claimed benefit is insufl^icient to truly 

serve the employer's interests because the tools were shipped to Mr. 

Pyatigorsky's home and not to the next Southwest Airframe and Tank job site. If 

any action that serves in a chain of activities designed to make Mr. Pyatigorsky 

ready to work in the future can be construed to "further a purpose or interest of 

the employer," then this would be tantamount to a finding that any action of Mr. 

Pyatigorsky that was in his personal interest will further the interests of 

SOUTHWEST AIRIRAME AND TANK'S PRE- Washington Aviation Group, PC and the 

TRTAT, P0I>JTS AND AUTHORIIILS Law Offices of Jason A. Dicksicin 

Page 6 2233 Wiscon.sin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-8947 
01/08/201 0 1G;3G FAX 2024835142 FAA * DMS 0007/01 1 

Southwest Airframe and Tank. Such an interpretation would be at odds with the 

traditional interpretation of respondeat superior, which holds that an act in 

furtherance of the employer's personal interests is a divergence from the 

purposes of the employer, sufficient to negate respondeat superior See, e.g.. 

Foremost Dairies of the South v. Godwin. 158 Fla. 245 (Fla. 1946) (finding that 

the employer was not liable for the employee's driving tort while the employee 

was driving to work, because the employee was not yet directly serving the 

employer's interests - this is analogous to the case at bar, in which Mr. 

Pyatigorsky had already finished his work and had left the job site to return 

home). 

3. M r Pyatigorsky's Act s Are Subject to the "Going an d 

Coming " Rule 

Mr. Pyatigorsky's acts fall are subject to the "going and coming rule." In Florida, 

the "going and coming rule" generally holds that an employee is not within the 

scope of his employment on his way to or from work, and thus the employer is 

not liable for the employees actions during these times Foremost Dairies of the 

South v. Godwin, 158 Fla. 245, 247 (Fla. 1946). 

As a matter of policy, the reason for the "going and coming rule" is that the 

employee has the power to select the method of commuting, not the employer. 

Siostrom v. Sproule. 210 N.E.2d 209, 211 (111.1965). 

The Florida courts have declined to find respondeat superior liability when an 

employee was going to or coming from work even when the employer paid for 

the licenses, repairs, tires, and fuel of a car owned by the employee and used for 

the business of collection of the employers' bills and accounts, or when the 

employee was a police officer operating a city provided "take-home" vehicle and 

was required to be armed and in uniform while operating said vehicle, or when 

SOUTHWEST AIRFRAME AND TANK'S PRE- Washington Aviation Group, PC and the 

TRIAL POIN IS AND AUTHORITIES Law Offices of .Jason A. Dickstein 

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the employee worked for a temp agency and was reporting to a new job site, 

despite the employee's unfamiliarity with the site Garcia v. Citv of Hollywood. 

966 So. 2d 5 (District Court of Appeals 4^^ Circuit 2007); Freeman v. Manpower. 

Inc., 453 So.2d 208, 210 (Fla.App.1 Dist 1984); Foremost Dairies of the South v. 

Godwin, 158 Fla. 245, 247 (Fla. 1946). 

In the case at hand, Mr. Pyatigorsky was expected to drive his own vehicle 

containing his toolbox to his home. Southwest Airframe and Tank did not own the 

vehicle Mr. Pyatigorsky was to drive, nor did they pay for repairs on it. It was an 

expectation of Mr. Pyatigorsky's job that he would drive to job sites, and also, like 

most employees, to commute home again at the conclusion of the job. 

When Mr. Pyatigorsky wrecked his car, Mr. Stewart discussed with him renting a 

car to get home. This telephone conversation was witnessed by Joel Ramirez. 

Despite this conversation with Mr, Stewart, Mr. Pyatigorsky took it upon himself 

to call Ms. Gensler and to obtain an unauthorized plane ticket from her, in 

violation of the understanding of Southwest Airframe and Tank management. 

While Ms. Gensler may have arranged for Mr. Pyatigorsky's plane ticket, she did 

not arrange for the shipment of Mr. Pyatigorsky's toolbox, nor did Mr. Pyatigorsky 

inform Ms. Gensler that he needed his tools sent to his home (nor even that he 

had tools with him). Rather, Mr. Pyatigorsky unilaterally decided that he was 

going to ship the tool box to his home. 

Southwest Airframe and Tank did not dictate the method by which Mr. 

Pyatigorsky commuted home. In fact, they attempted to do so and Mr. 

Pyatigorsky chose to go home another way. Because Southwest Airframe and 

Tank did not (and could not) control the manner in which Mr. Pyatigorsky 

returned home, the return home was subject to the same level of employer 

.sou FHWEST AIRFR AML AND TANK'S PRETRIAL POINTS A"ND AUTHORl 1 Its 

Pages 

Washington Aviation Group, PC and tlie 

Law OITices of Jason A. DJckstoin 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-8947 
01/08/201 0 1G:3G FAX 2024835142 FAA * DMS 0009/01 1 

control normally exercised in commuting decisions, and the "going-and-coming" 

rule must therefore apply to this travel. 

If the "going-and-coming" rule applies to this travel, then acts incidental to the 

travel, like Mr. Pyatigosky's act of shipping his tools to his home, must also fall 

outside the scope of respondeat superior ur\6er Florida law. 

Conclusion 

In order to prevail at trial, the FAA Administrator must prove that Southwest 

Airframe and Tank is liable for the alleged shipping acts of Alex Pyatigorsky 

through the doctrine of respondeat superior 

Mr. Pyatigorsky is not employed to ship goods and he had neither general nor 

specific authority to make the shipment in question in this case. The shipment 

occurred after Mr. Pyatigorsky had left the job site so it was not within the time 

and space limits of employment. It was motivated by a desire to return the tools 

to Mr. Pyatigorsky's personal home, and not for any purpose that materially 

served Southwest Airframe and Tank. For any one of these reasons, the Court 

may find that Mr. Pyatigorsky's shipment was not within the scope of his 

employment at Southwest Airframe and Tank. 

In addition, the going-and-coming rule (as well as the policy underlying that rule) 

dictates that under Florida law, the employer is not vicariously liable for side 

activities (like shipping) that occur during the commute home. 

For all of these reasons, the Court should find that Southwest Airframe and Tank 

is not responsible under respondeat superior for the shipment sent by Alex 

Pyatigorsky to his own home. 

SOUTI IWKS I AIRIRAME AND TANK'S PRETRIAL POINTS AND AUTHORlTlLS 

PaseQ 

Washington Aviation Group, PC and the 

Law Offices of .Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suiie 503 

Wa-ihington, DC 20007 -Tel: 202-628-8947 
01/08/2010 16:38 FAX 2024835142 FAA * DMS g|010/011 

RESPECTFULLY SUBMITTED this 6"^ day of January, 2010. 

WASHINGTON AVIATION GROUP, PC AND THE 

LAW OFFICES OF JASON A DICKSTEIN 

Jason Dickstein 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

Tel: (202) 628-6776 

Fax: (202) 628-8948 

Attorney for Respondent 

SOUTHWEST AlRFRAMli AND TANK'S PRLTRIAL POIMTS AND AUTHORITIES 

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Wa.shington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue. NW, Suite 503 

Washington, DC 20007 'Tel: 202-6:>.8-8947 
01/08/2010 1G:3G FAX 2024835142 FAA + DMS 1011/011 

CERTIFICATE OF SERVICE 

RE: In the Matter of Southwest Airframe and Tank Services (FAA Docket No.: 

CPSOOOl0, DMS No. FAA-2009-0723). 

The undersigned hereby certifies that she caused the attached 

• Pre-Trial Points and Authorities (Respondeat Superior) 

to be filed, at the following locations, by FedEx overnight service,-on the date indicated 

below: 

Federal Aviation Administration (Original and One Copy) 

600 Independence Avenue, SW. 

Wilbur Wright Building—Suite 2W1000 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Tel: (202) 385-8229 

And that she caused it to be served at the following locations, by FedEx overnight 

sen/ice: 

The Honorable Isaac D. Benkin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

East BIdg Ground Floor, Room E12-320 

Washington. DC 20590 

FAX: (202) 366-7536 

Gerald Ellis, Attorney 

Office of the Regional Counsel 

Federal Aviation Administration 

1701 Columbia Ave. 

College Park, GA 30337 

TEL: (404) 305-5200 

FAX: (404) 305-5223 

0 ^ :)k^\)k^'{ 2010 

Date 

SOUTHWEST AIRlKAMi: AND TANK 

CER riFlCATE OF SERVICE 

Washington Aviaiion Group, PC and the 

Law Offices of Ja-son A. Dick!;l.cin 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, OC 20007 ciTel-, 202-628-8947