ALLAN JOEL WEISS, APPELLANT,
v.
EDWARD ESTERBROOK CULPEPPER ET AL., APPELLEES
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Plaintiff appealed a summary judgment dismissing his negligence claim against the employer and insurer of the driver who hit his motorcycle. The court affirmed, holding that the employee was on his way home from work when the accident occurred, falling squarely within the "going and coming rule" which precludes vicarious liability absent an exception.
Summary judgment was properly entered. The employee was traveling home from work in his own automobile with no evidence of performing employment duties, placing the accident squarely within the "going and coming rule" which excludes such travel from the scope of employment. The plaintiff failed to meet the burden of proving an exception to this rule.
[1] A master is civilly liable to third persons for injury or damage occasioned by the negligent act of his employee when committed within the scope of his employment.
[2] The mere going to or from work in one's own automobile is not in the course of employment.
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Join FLexlaw to unlock all legal intelligence“A master is civilly liable to third persons for injury or damage occasioned by the negligent act of his employee when committed within the scope of his employment.”
Establishes the general rule for vicarious liability that requires conduct to be within the scope of employment.
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Join FLexlaw to unlock all legal intelligenceOn February 5, 1970, at approximately 1:20 a.m., plaintiff-appellant was injured when his motorcycle collided with an automobile owned and operated by…
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Plaintiff-appellant seeks review of an adverse summary judgment entered in favor of the defendant Hyatt House/19201 Corporation and Continental Casualty Company.
At approximately 1:20 a. m. on the morning of February 5, 1970, plaintiff-appellant sustained serious injuries when the motorcycle he was riding collided with an automobile owned and operated by the defendant Edward Culpepper. In addition to Cul-pepper, the plaintiff filed suit against Hyatt House/19201 Corporation and its liability insurer, Continental Casualty Company, on the grounds that Culpepper, an employee of Hyatt House, was acting in the course and scope of his employment at the time of the accident. On the date of the accident, Culpepper held the position of southern sales manager which on occasion did *373require some evening work entertaining hotel guests. The court below granted the motion of defendants, Hyatt House/19201 Corporation and Continental Casualty Company for summary judgment on the grounds that Culpepper was not acting in the course and scope of his employment at the time of the accident and, therefore, these defendants could not be held vicariously liable. The issue as to the liability of Culpepper is not a subject of this appeal.
Plaintiff-appellant contends the trial court erred in holding that the record fails to reflect the existence of genuine issues of material fact relating to whether Cul-pepper was acting in the course and scope of his employment at the time of the subject accident and, therefore, erred in finding appellees were entitled to judgment as a matter of law. We find no such error.
A master is civilly liable to third persons for injury or damage occasioned by the negligent act of his employee when committed within the scope of his employment. 21 Fla.Jur. Master & Servant § 69 (1958). Nevertheless, it has been established in this jurisdiction that the mere going to or from work in one’s own automobile is not in the course of employment. Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So.2d 773 (1946) and Southern Life & Health Insurance Company v. Smith, Fla.App.1969, 218 So.2d 784. There are exceptions to this “going and coming rule”,1 but the burden of proof is upon the party desiring to invoke such an exception.
Turning to the case sub judice, the record on appeal clearly reflects that at the time of the accident defendant Culpep-per was on his way home from the hotel in his own automobile and there is no showing that on the evening or at the time of the accident he was performing any duties of his employment. It follows then that plaintiff has failed to meet the requisite burden of proof of demonstrating an exception to the “going and coming rule” and, therefore, we find his contention lacking in merit.
Accordingly, the judgment is affirmed.
Affirmed.
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Jaar v. The Univ. OF Miami, 474 So. 2d 239 (Fla. 3d DCA 1985)…and the ^University were obligated to perform. Thus, the University is liable for the negligent acts of its agent, Dr. Ward, see Weiss v. Jacobson, 62 So. 2d 904 (Fla.1953); Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (Fla.1922); Weiss v. Culpepper, 281 So. 2d 372 (Fla.3d DCA 1973), cert. denied, 290 So. 2d 62 (Fla.1974), and appellants are entitled to a directed verdict against the University as a matter of law. There is additional support for our holding that the University is liable for Dr. Ward’s neglige…
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Freeman v. Manpower, Inc., 453 So. 2d 208 (Fla. 1st DCA 1984)…from work is not within the scope of employment so as to impose liability on the employer. Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So. 2d 773 (1946); Standley v. Johnson, 276 So. 2d 77 (Fla. 1st DCA 1973); Weiss v. Culpepper, 281 So. 2d 372 (Fla. 3rd DCA 1973). And this is true even though the vehicle was used in the work and partly maintained by the employer. Foremost Dairies, Inc. of the South v. Godwin, supra. In urging reversal, appellants rely heavily upon Eady v. Medical Personn…
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Weiss v. Culpepper, 290 So. 2d 62 (Fla. 1974)…Certiorari denied. 281 So. 2d 372. CARLTON, C. J., and ROBERTS, ADKINS and BOYD, JJ., concur. ERVIN, J., dissents.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Foremost Dairies, Inc. v. Godwin, 158 Fla. 245 (Fla. 1946)
- Blount v. State Rd. Dep't of Fla. & Fla. Indus. Comm'n, 87 So. 2d 507 (Fla. 1956)
- Krause v. W. Lumber Co., 227 So. 2d 486 (Fla. 1969)
- Merwin v. Kellems, 78 So. 2d 865 (Fla. 1955)
- S. Life & Health Ins. Co. & James D. Lewis v. Smith, 218 So. 2d 784 (Fla. 1st DCA 1969)
- E. Projects, Inc. v. Blate, 218 So. 2d 784 (Fla. 4th DCA 1969)