DOROTHY MAE WILLIAMS, APPELLANT,
v.
FLORIDA REALTY & MANAGEMENT CO., A FLORIDA CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in granting summary judgment because the record did not conclusively demonstrate the absence of a genuine issue of material fact regarding the manager's scope of employment.
[1] A motion for summary judgment must be denied if the record raises the slightest doubt as to the existence of genuine issues of material fact.
[2] The moving party bears the burden of conclusively demonstrating the absence of genuine issues of material fact to prevail on a motion for summary judgment.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceAn apartment resident was shot by the apartment manager. The resident sued the apartment operator, alleging negligence in allowing the manager to use …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Employer Liability For Employee Actions cases and more on FLexlaw
The appellant alleged in her complaint that she was negligently shot by the manager of the apartment house in which she resided. She further alleged that the defendant, the operator of the apartment house, was negligent when it knowingly allowed the manager to use a firearm in the performance of his duties when it knew or should have known that the manager did not possess the requisite skill and temperament for the proper use of a firearm. After the answer and discovery papers were filed, the trial court granted the defendant’s motion for a summary final judgment. The plaintiff has appealed. We reverse upon a holding that the pleadings, depositions and affidavit before the trial court did not conclusively demonstrate the absence of a genuine issue of material fact.
On appeal from summary final judgment, the appellant is entitled to have the record reviewed so that every reasonable inference is drawn in his favor. Conversely, the moving party has the burden of conclusively showing the absence of genuine issues of material fact. If the existence of such issues, or the possibility of their existence, is reflected in the record, or the record even raises the slightest doubt in this regard, the summary final judgment must be reversed. See Visingardi v. Tirone, Fla. 1966, 193 So.2d 601; Holl v. Talcott, Fla.1966, 191 So.2d 40; Lampman v. City of North Miami, Fla.App.1968, 209 So.2d 273.
Before entering summary judgment, the trial court considered the following discovery items: (1) the deposition of the appellant, (2) the deposition of the manager, and, (3) the affidavit of an officer of the appellee “[t]hat Florida Realty & Management Company, its officers or agents never supplied Mr. Willie McGriff with a firearm in order to enforce regulations, protect or defend the premises at 3201 Douglas Road, Miami, Dade County, Florida.”1
The appellant and the manager gave widely divergent accounts of the incident. The appellee therefore does not urge in this court that there were no issues of fact. It does urge that the issues were not “genuine issues of material fact.” In so arguing, the appellee states that it accepts, for the purpose of argument, the appellant’s version of the incident and argues that this version clearly shows that the manager was not acting within the scope of his employment when the shooting occurred. In Atlantic Coast Line Railroad Company v. Burquest, Fla.App.1958, 101 So.2d 828, the appellate court adopted the following statement from 35 Am.Jur. Master and Servant, § 553, page 987: 2
“ ‘ * * * If the employee, being engaged about the business of the employer, adopts methods which he deems necessary, expedient or convenient, and the methods adopted prove hurtful to others, the employer may be held liable. The purpose of the employee’s act, rather than the method of performance thereof, is said to be the important consideration. He * * > »
The question thus becomes whether or not the defendant’s allegation that the manager was not engaged about the business of the employer is shown con*178clusively to be true. The mere nonexistence of evidence to prove that the agent was about his master’s business is an inadequate showing at this stage of the proceedings. When a defendant moves for summary judgment, the trial court does not determine whether the plaintiff can prove her case but only whether the pleadings, depositions and affidavits conclusively show that she cannot prove her case.
The appellant stated in her deposition as follows:
1. At the time of the incident she had been living in an apartment a few doors down from the manager with her three children and brother. She has three other brothers who live elsewhere.
2. On the evening in question, two of her brothers and an aunt were visiting with her. At about 8:30 p. m. appellant and her visitors were sitting out in front of her apartment talking and playing a phonograph. At that time the manager came down from upstairs and asked a lady standing nearby to dance with him. She told him to go on because she didn’t want to be bothered. The manager then asked appellant to turn off the phonograph because it was too loud. The appellant turned it off. The appellant and her brothers had no argument with the manager at that time.
3. About an hour later one of appellant’s brothers left to go home. To reach the exit he had to walk past the manager’s apartment. Appellant was standing in her doorway. Shortly thereafter, the manager fired five shots, three of which struck appellant and severely injured her. Appellant didn’t hear any argument between the manager and her brother.
4. The manager was in a habit of carrying his gun around the premises, playing with it and showing it off to the residents of the apartment complex.
We conclude that the defendant did not carry the burden of conclusively demonstrating the absence of a genuine issue of material fact.
Reversed and remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (25 total)
-
Mejiah v. Olivio Rodriguez & Integon Indem. Corp., 342 So. 2d 1066 (Fla. 3d DCA 1977)…reflected in the record, or the record even raises the slightest doubt in this respect, the summary judgment must be reversed. Furlong v. First National Bank of Hialeah, 329 So. 2d 406 (Fla.3d DCA 1976); Williams v. Florida Realty & Management Co., 272 So. 2d 176 (Fla.3d DCA 1973). The pleadings and the deposition in the instant case did not meet the standard necessary to establish defendants’ right to summary judgment. Therefore, the summary judgment is reversed. Inasmuch as we find that the summary judgme…
-
Furlong v. First Nat'l Bank OF Hialeah, 329 So. 2d 406 (Fla. 3d DCA 1976)…uch issues or the possibility of their existence is reflected in the record or the record even raises the slightest doubt in this respect, the summary judgment must and will be reversed. Williams v. Florida Realty & Management Company, Fla.App.1973, 272 So. 2d 176. The defendants in their affirmative defenses raise genuine issues of material fact with regard to the oral and documentary evidence presented in support of their contention that the Bank, upon inducing Furlong to execute the April 13, 1973 mortgage…
-
Gonpere Corp. v. Rebull, 440 So. 2d 1307 (Fla. 3d DCA 1983)…the methods adopted prove hurtful to others, the employer may be held liable. The purpose of the employee’s act, rather than the method of performance thereof, is said to be the important consideration. Williams v. Florida Realty & Management Co., 272 So. 2d 176, 177 (Fla. 3d DCA 1973) (citation omitted). Whether the employee’s act was committed within the scope of his employment or in furtherance of the employer’s interest presents a question for jury determination. Simpson; Weiss v. Jacobson, 62 So. 2d 9…
Previewing 3 of 25 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966)
- Lampman v. City OF N. Miami, 209 So. 2d 273 (Fla. 3d DCA 1968)
- Atl. Coast Line R.R. Co. v. Burquest, 101 So. 2d 828 (Fla. 2d DCA 1958)