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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15109
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-22708-RLR
MANUEL MORERA,
as Personal Representative of the Estate of Maria Josefa Morera,
Plaintiff-Appellant,
versus
SEARS ROEBUCK AND CO.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 13, 2016)
Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
Manuel Morera, as the personal representative of Maria Morera, appeals the
summary judgment against his complaint that Sears Roebuck and Company was
vicariously liable for the wrongful death of his mother, see Fla. Stat. § 768.16 et
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seq. Luis Antonio Valdivia, a Sears employee, drove his personal vehicle to a bank
during his morning break, failed to put the vehicle in park before climbing out, and
hit Ms. Morera when, in attempting to stop the vehicle, he pressed the accelerator
instead of the brake. The district court ruled that Sears was not vicariously liable
for Valdivia’s conduct because it occurred outside the scope of his employment.
We affirm.
Sears employed Valdivia as an assistant manager at its auto center in
Hialeah, Florida. Valdivia’s salaried position entailed “managing the Auto Center
and Associates” to “ensure[] consistent, timely and accurate service delivery to
customers.” On December 18, 2012, Valdivia arrived at the auto center earlier than
usual, about ten minutes after 6:00 a.m., to help admit a crew to clean the store
before it opened for customers around 8:00 a.m.
Around 7:20 a.m., Valdivia took a morning break and drove approximately
one-half a mile to a bakery to purchase breakfast. He drove to the parking lot of a
bank and ate his breakfast while listening to the radio. Valdivia failed to shift the
transmission to park, and when he climbed out of his vehicle, it began to roll
forward. Valdivia returned to his vehicle, but pressed the gas pedal inadvertently
and struck Ms. Morera.
We review a summary judgment de novo. Williams v. Obstfeld, 314 F.3d
1270, 1275 (11th Cir. 2002). Summary judgment is appropriate when “there is no
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genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
Under Florida law, which the parties agree applies, “[a]n employer may be
vicariously liable to third parties under the principle of respondeat superior for
damages and injuries caused by its employee’s negligent acts which are committed
within the scope and course of his employment.” Bennett v. Godfather’s Pizza,
Inc., 570 So. 2d 1351, 1353–54 (Fla. Dist. Ct. App. 1990). An employee acts
“within the scope of his employment . . . only if (1) the conduct is of the kind the
employee is hired to perform, (2) the conduct occurs substantially within the time
and space limits authorized or required by the work to be performed, and (3) the
conduct is activated at least in part by a purpose to serve the master.” Sussman v.
Fla. E. Coast Props., Inc., 557 So. 2d 74, 75–76 (Fla. Dist. Ct. App. 1990). “[F]or
an employer to be vicariously liable . . ., the employee’s conduct must in some way
further the interests of the employer or be motivated by those interests.” Bennett,
570 So. 2d at 1354.
The district court did not err by entering summary judgment in favor of
Sears. Sears was not vicariously liable for Valdivia’s conduct because it was not
“something [his] employment contemplated.” See Weiss v. Jacobson, 62 So. 2d
904, 906 (Fla. 1953). As the district court stated, “[t]he act of eating breakfast and
listening to the radio in his personal vehicle while on a personal break
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approximately one-half mile away from the Auto Center was not the kind of
conduct Mr. Valdivia was hired to perform as Auto Center Assistant Manager, did
not occur within the time and space limits authorized or required by the work to be
performed and was not activated by a purpose to serve [Sears].” Similar to the spa
employee in Sussman who was acting outside the scope of her employment when
she struck a pedestrian after deviating five blocks from her normal route to work to
purchase a birthday cake at her manager’s request, 557 So. 2d at 76, Valdivia’s
accident occurred during a personal break. Morera argues that Sears is liable
because Valdivia was “on call at all times . . . during business hours,” but
Valdivia’s accessibility did not place the accident within the scope of his
employment. Valdivia’s supervisor, Jesus Santos, testified, without dispute, that if
contacted about an emergency at the auto center, Valdivia would finish “whatever
he was doing . . . [before] go[ing] back [to] take care of the customer.” Santos
testified that when managers and assistant managers are at lunch or on a break,
they are “on [their] own time” and “[t]he customer has to wait.” Because Valdivia
hit Ms. Morera while acting outside the scope of his employment, Sears was not
legally responsible for the tragic mishap.
We AFFIRM the summary judgment in favor of Sears.
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