NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MARGARETT FIELDS, )
)
Appellant, )
)
v. ) Case No. 2D16-3558
)
THE DEVEREUX FOUNDATION, INC., )
JAMAR PLUMMER, and HEARTLAND )
FOR CHILDREN, INC., )
)
Appellees. )
)
Opinion filed May 4, 2018.
Appeal from the Circuit Court for Polk
County; Keith P. Spoto, Judge.
Margarett Fields, pro se.
Janice L. Merrill of Marshall, Dennehey,
Warner, Coleman & Goggin, Orlando,
for Appellee The Devereux Foundation, Inc.
No appearance for remaining Appellees.
SALARIO, Judge.
Margarett Fields appeals from a final summary judgment in favor of The
Devereux Foundation on her claims for assault, battery, abuse of process, intentional
infliction of emotional distress, negligent hiring, and negligent supervision. Because
Devereux failed to meet its initial burden to establish the nonexistence of a genuine
issue of material fact with respect to the assault and battery claims, we reverse as to
those claims. In all other respects, we affirm without comment.
The undisputed facts for summary judgment purposes are these. Ms.
Fields is the paternal grandmother of D.F., a juvenile who was removed from his
parents' care but later reunified with his father. D.F. and his father lived with Ms. Fields
at her home. D.F.'s mother sought and was granted visitation with D.F. Devereux—an
organization that provides families with behavioral and social services—was hired to
facilitate the visitations. An employee of Devereux named Jamal Plummer was
assigned as case manager. One of his duties was to conduct periodic home visits with
D.F.
Mr. Plummer failed in the performance of those duties and, to make
matters worse, submitted fake documents to Devereux stating that he had completed
visits that never really happened. It appears that he visited the home only once. On
that occasion, he was greeted at the door by Ms. Fields. He informed her that he was
there to take D.F. for court-ordered visitation with his mother. When, upon Ms. Fields'
request, he was unable to provide anything to show her that he was in fact authorized to
do that, Ms. Fields refused to allow him to take D.F. from the home.
When Ms. Fields resisted Mr. Plummer's efforts to take her grandson, he
grew frustrated and began acting aggressively. She alleges that he cocked his fist as if
he was going to strike her, causing her to feel startled and, as a result, to fall backward
into the door frame. She sued Devereux for assault and battery, asserting that
Devereux was liable for Mr. Plummer's conduct under a theory of respondeat superior.
Devereux moved for summary judgment. In its motion, Devereux argued
that it could not be held vicariously liable for assault or battery because Mr. Plummer's
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alleged conduct was outside the scope of his employment with Devereux. It offered no
affidavits or other summary judgment evidence, however, that bore either on the precise
details of Mr. Plummer's conduct during the incident or on the scope of his employment
with Devereux. Instead, it argued simply that "there is no evidence [Mr. Plummer] was
acting in the course and scope of his employment when" he allegedly assaulted and
battered Ms. Fields. The trial court granted Devereux's motion and entered a final
judgment in its favor, from which Ms. Fields filed this timely appeal.
We review an order granting summary judgment de novo. Deep S. Sys.,
Inc. v. Heath, 843 So. 2d 378, 379 (Fla. 2d DCA 2003). Summary judgment is proper
where "the pleadings and summary judgment evidence on file show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law." Fla. R. Civ. P. 1.510(c). "Summary judgment evidence" consists of
"any affidavits, answers to interrogatories, admissions, depositions, and other materials
as would be admissible in evidence." Id.
Determining whether the pleadings and summary judgment evidence
show that there is no genuine issue of material fact is a two-step process. First, "[i]t is
the movant's burden to prove the nonexistence of genuine issues of material fact."
Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc.,
928 So. 2d 1272, 1274 (Fla. 2d DCA 2006). Once the movant carries that initial burden,
the burden shifts to the party opposing summary judgment to show that there actually is
an issue of material fact remaining to be tried. McNabb v. Taylor Elevator Corp., 203
So. 3d 184, 185 (Fla. 2d DCA 2016). The burden does not shift to the opposing party,
however, unless and until the movant carries its initial burden of demonstrating that no
genuine issue of material fact exists. Bryson v. Branch Banking & Tr. Co., 75 So. 3d
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783, 786 (Fla. 2d DCA 2011). The movant cannot satisfy that initial burden merely "by
showing that up until the time of his motion his adversary has not produced sufficient
evidence in support of his pleadings to require a trial." Derogatis v. Fawcett Mem'l
Hosp., 892 So. 2d 1079, 1083 (Fla. 2d DCA 2004) (quoting Matarese v. Leesburg Elks
Club, 171 So. 2d 606, 607 (Fla. 2d DCA 1965)).
The only summary judgment issue Devereux argued in the trial court
concerning Ms. Fields' assault and battery claims was that it could not be held
vicariously liable for Mr. Plummer's intentional torts. In Florida, an employer is
vicariously liable for an employee's tortious conduct where the conduct occurs within the
scope of the employment. Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA 1986). In
the case of intentional torts, a plaintiff's mere showing that an employee was on duty at
the time he assailed someone is not sufficient to establish that the conduct occurred
within the scope of employment. Id. Rather, the employee's conduct must be "of the
kind he was employed to perform," must occur "substantially within the time and space
limits authorized or required by the work to be performed," and must be "activated at
least in part by a purpose to serve the master." Iglesia Cristiana La Casa Del Señor,
Inc. v. L.M., 783 So. 2d 353, 357 (Fla. 3d DCA 2001). Thus, an employer can generally
be held vicariously liable for an intentional tort where the employee's tortious conduct is
undertaken in furtherance of the employer's interests. Perez v. Zazo, 498 So. 2d 463,
465 (Fla. 3d DCA 1986); see also, e.g., Columbia By The Sea, Inc. v. Petty, 157 So. 2d
190, 192 (Fla. 2d DCA 1963) (holding that jury could conclude that maitre d' of
restaurant acted within scope of employment when he battered customer with an
ashtray during an attempt to get him to pay thirty-five-cent upcharge for roquefort salad
dressing); Jax Liquors, Inc. v. Hall, 344 So. 2d 247, 247 (Fla. 1st DCA 1976) (holding
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that armed security guard who removed unruly bar patron and shot him in the parking
lot was within the scope of his employment despite the fact that the shooting was
"entirely unnecessary to any legitimate purpose of [his] employment" because the
confrontation was initiated to serve his employer's interests and escalated "with
unbroken continuity" to the shooting).
In this case, Ms. Fields alleges that Mr. Plummer both assaulted and
battered her while trying to take D.F. to visit his mother, a task Mr. Plummer was hired
by Devereux to perform. On its face, Ms. Fields' claim is of the type for which a jury
could permissibly find Devereux vicariously liable because it could determine that the
tortious conduct was undertaken in the performance of a job duty and motivated by a
purpose to serve Devereux. See Iglesia Cristiana, 783 So. 2d at 357. Devereux,
however, did not offer any affidavits, deposition testimony, interrogatory answers, or
other summary judgment evidence to show that Mr. Plummer's conduct did not happen
as Ms. Fields said it did, that Mr. Plummer's job duties were something other than she
said they were, that Mr. Plummer's purpose was something other than serving
Devereux, or that there was some other fact that would show that it could not be
vicariously liable in this case. It simply asserted, without offering evidence of its own,
that there was "no evidence" that it could be liable for the alleged assault or battery.
That showing was insufficient to shift the summary judgment burden from Devereux to
Ms. Fields. See Derogatis, 892 So. 2d at 1083; see also Bernhardt v. Halikoytakis, 95
So. 3d 1006, 1008 (Fla. 2d DCA 2012) ("The movant's burden is to come forward with
competent evidence to demonstrate the nonexistence of a material issue of fact."). For
that reason, the trial court improperly granted summary judgment on the assault and
battery claims.
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Accordingly, although we affirm in all other respects, we reverse the final
summary judgment as to Ms. Fields' claims for assault and battery and remand this
case to the trial court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
SILBERMAN and VILLANTI, JJ., Concur.
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