BEN GREGG, JR., APPELLANT,
v.
WELLER GROCERY CO., A FLORIDA CORPORATION, AND ARTHUR MATHIS, APPELLEES
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Ben Gregg appeals a summary judgment in favor of Weller Grocery Co. after being shot by a security guard during apprehension for suspected shoplifting. The court reverses, holding that a genuine issue of material fact exists regarding whether the security guard was an employee or independent contractor, which must be decided by a jury.
The trial judge erred in granting summary judgment for Weller Grocery Co. because a genuine triable issue exists regarding whether Mathis was an employee or independent contractor. The issue must be decided by a jury based on relevant factors including the degree and manner of control, the guard's equipment, whether he worked exclusively for the company, duration of employment, pay arrangements, and whether his duties were part of the company's business.
“We hold the trial judge was in error in granting summary judgment for the defendant grocery company. There was a genuine triable issue as to whether Mathis, the security guard, was an employee or was an independent contractor.”
The core holding that summary judgment was improper because a material factual dispute existed regarding the security guard's employment status.
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Join FLexlaw to unlock all legal intelligenceGregg was apprehended by the grocery store manager on suspicion of shoplifting and was detained outside the store. The manager summoned Mathis, the co…
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The plaintiff Ben Gregg, Jr., appeals from a summary judgment entered in favor of one of the defendants, Weller Grocery Co. Gregg was apprehended by the manager of the grocery company on suspicion of shoplifting, and was detained outside the store at a time when the defendant Mathis, the company’s security guard, was seated nearby in his car, eating. The manager summoned Mathis to hold Gregg. The security guard started over, but before he arrived Gregg broke away. Mathis fired certain warning shots at the fleeing Gregg, then shot him in the leg. We hold the trial judge was in error in granting summary judgment for the defendant grocery company. There was a genuine triable issue as to whether Mathis, the security guard, was an employee or was an independent contractor. In the interest of the proper disposition of the matter on remand, it would not be appropriate, at least on the basis of the record now presented, to so state the facts as to define or indicate the relationship which existed and which is to be determined by the trier of facts. There were facts and inferences reasonably to be drawn therefrom making the issue one to be decided by a jury on proper instructions, such as those relating to the degree and manner of control of the security guard by the defendant company, the guard’s equipment, whether he was in business generally or worked only for the defendant company, the period and duration of his employment, the rate and manner of his pay, provisions for vacation and for a substitute when he was absent, whether duties performed by the guard were a part of the trade or business of the company, etc. See Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503; Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858; Miami Herald Publishing Co. v. Kendall, Fla.1956, 88 So.2d 276; Farmers & Merchant’s Bank v. Vocelle, Fla.App. 1958, 106 So.2d 92. In Magarian v. Southern Fruit Distributors, supra, the Supreme Court of Florida quoted Restatement, Agency, § 220, where after listing a number of factors bearing on the issue of whether one is an employee or an independent contractor, it was said (1 So.2d at 860):
“ ‘ * * * The factors stated in Subsection (2) are all considered in determining the question, and it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relationship. Where the inference is clear that there is, or is not, a master and servant relationship, it is made by the court; otherwise the jury determines the question after instruction by the court as to the matters of fact to be considered.’ ”
Here the facts and the allowable inferences are not so clear on the questions of status and control of the security guard that the matter could be determined by the court.
The summary judgment appealed from is reversed.
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DeBOLT v. The Dep't OF Health & Rehabilitative Servs., 427 So. 2d 221 (Fla. 1st DCA 1983)…t or employer/employee relationship, the issue is one then for the court to determine. If, however, the issue is unclear, it becomes a question of fact for the trier of fact to decide based on the evidence presented. See Gregg v. Weller Grocery Co., 151 So. 2d 450 (Fla. 3d DCA 1963). In this case, although the Martins are identified in the contract as “independent contractors,” the terms of the contract appear to impose a number of conditions and limitations12 upon them which, at the [*227] very least, create…
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Foster v. LEE, 226 So. 2d 282 (Fla. 2d DCA 1969)…146 Fla. 773, 1 So. 2d 858, citing Restatement of the Law, Agency, § 220, re: factors to be considered in determining a master-servant relationship as distinguished from independent contractor. . See Gregg v. Weller Grocery Co., (Fla.App.3d 1963). 151 So. 2d 450.…
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In re the Est. OF Chad Starling. Dewayne Y. Starling & Wilma C. Starling v. Asis Saha and Barbara Saha, 451 So. 2d 516 (Fla. 5th DCA 1984)…ong-term relationship between White and Dr. Saha was a kind of partnership or joint venture, which would impose vicarious liability on Dr. Saha. I think the status of the parties should have been submitted to a jury. Gregg v. Weller Grocery Company, 151 So. 2d 450 (Fla. 3d DCA 1963), 41 Am.Jur.2d Independent Contractor § 53 (1968). Further, even if the relationship between White-Davis and Dr. Saha was one of employer — independent contractor, the record discloses disputed facts upon which a jury could find t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gulf Ref. Co. v. Wilkinson, 94 Fla. 664 (Fla. 1927)
- K. M. Magarian (Claimant) v. S. Fruit Distribs. (Employer) & Nat'l Cas. Ins. Co. (Carrier), 146 Fla. 773 (Fla. 1941)
- The Miami Herald Publ'g Co. v. Mrs. Mary Kendall, 88 So. 2d 276 (Fla. 1956)
- Farmers & Merchs. Bank v. Vocelle, 106 So. 2d 92 (Fla. 1st DCA 1958)