INEZ DAVIS, APPELLANT,
v.
MAJOR OIL COMPANY, A FLORIDA CORPORATION, APPELLEE
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Inez Davis appealed a summary judgment dismissing her tort action against Major Oil Company for injuries from an alleged assault and battery committed by an employee. The court affirmed the summary judgment, finding no evidence of negligent hiring based on criminal propensities and rejecting arguments not raised in the pleadings.
The court affirmed the summary judgment, holding that the first and third contentions were not raised in the pleadings and therefore could not be entertained on appeal, and that regarding the negligent hiring claim, the record clearly showed no negligence because Demps had no known criminal propensities prior to the incident.
“In reviewing the remaining contention in a light most favorable to the appellant, as we must do on appeal [See: Pritchard v. Peppercorn, Inc., Fla.1957, 96 So. 2d 769; Keller v. Florida Power & Light Company, Fla.App.1963, 156 So. 2d 775], we fail to find wherein the trial court erred.”
Establishes the appellate standard of review for summary judgment, examining the record in the light most favorable to the non-moving party.
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Join FLexlaw to unlock all legal intelligenceOn May 20, 1962, Davis went to Major Oil Company's service station to use a pay telephone. While using the telephone, she engaged in an argument with …
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Appellant, plaintiff in the trial court, seeks review of an adverse final summary judgment entered by the trial court in a tort action. The appellant seeks damages for personal injuries sustained as the result of an alleged assault and battery committed by one Robert Demps, an alleged employee of the appellee.
The facts giving rise to the instant case are as follows: On Sunday evening, May 20, 1962, the appellant went to the appellee’s service station for the purpose of using a pay telephone located in a telephone booth on the premises. While she was using the telephone, the appellant and Robert Demps engaged in an argument over the use of said telephone. When the appellant completed her call and had stepped from the Booth, Robert Demps shot her with a gun he kept in the service station.
In an effort to reverse the final summary judgment appealed herein, the appellant contends the record on appeal reveals that there is a question of fact as to whether or not (1) Robert Demps was within the scope of his employment when he committed the act; (2) The appellee was negligent in hiring Robert Demps when it knew or should have known of his criminal propensities; (3) The appellee ratified the act of Robert Demps if said act was outside the scope of his authority.
The first and third contentions were not raised by the pleadings,1 pursuant to which the final summary judgment was entered, and we cannot entertain these points for the first time on this appeal. See: Mariani v. Schleman, Fla.1957, 94 So.2d 829; Ormsby v. Ginolfi, Fla.App.1959, 107 So.2d 272; 2 Fla.Jur., Appeals, §§ 287, 290.
In reviewing the remaining contention in a light most favorable to the appellant, as we must do on appeal [See: Pritchard v. Peppercorn, Inc., Fla.1957, 96 So.2d 769; Keller v. Florida Power & Light Company, Fla.App.1963, 156 So.2d 775], we fail to find wherein the trial court erred. The record on appeal clearly shows there was no negligence on the part of the appellee in hiring Robert Demps, as the record affirmatively shows that prior to the criminal act [resulting in the instant case] Robert Demps had no known criminal propensities.
Based on the foregoing, we find no prejudicial error on the part of the trial court and hereby affirm the final summary judgment appealed.
Affirmed.
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Nazareth v. Herndon Ambulance Serv., Inc., 467 So. 2d 1076 (Fla. 5th DCA 1985)…., 386 So. 2d 1238 (Fla. 2d DCA 1980), rev. denied, 392 So. 2d 1374 (Fla.1981); Wayne v. Unigard Mut. Ins. Co., 316 So. 2d 581 (Fla. 3d DCA 1975); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So. 2d 198 (Fla. 4th DCA 1970); Davis v. Major Oil Co., 164 So. 2d 558 (Fla. 3d DCA 1964); Stevens v. Lankard, 31 A.D.2d 602, 297 N.Y.S.2d 686 (N.Y.App. Div.1968), aff’d, 25 N.Y.2d 640, 306 N.Y.S.2d 257, 254 N.E. 2d 339 (N.Y.1969). . D.C. Transit System, Inc. v. Brooks, 264 Md. 578, 287 A. 2d 251 (1972); Restatement (…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mariani v. Schleman, 94 So. 2d 829 (Fla. 1957)
- Pritchard v. Peppercorn & Peppercorn, Inc., 96 So. 2d 769 (Fla. 1957)
- Ormsby v. Ginolfi, 107 So. 2d 272 (Fla. 3d DCA 1958)
- Hart v. France, 156 So. 2d 775 (Fla. 3d DCA 1963)