Torts — Battery — Vicarious liability — Employer’s
liability for intentional acts of employee — Plaintiff alleging he was battered
by store employee in an altercation which arose when employee began reshelving
items in plaintiff’s shopping cart, which employee thought was abandoned, and
culminated in employee shoving plaintiff, causing him to fall to the floor —
Real or apparent scope of employment — Error to grant summary judgment in favor
of employer on ground that employee acted outside scope of his employment where
there was factual issue as to whether employee’s purpose was, at least in part,
to serve employer — Employee’s purpose in committing battery was jury
question

NICHOLAS TRABULSY, Appellant, v. PUBLIX SUPER MARKET, INC., etc., et al.,
Appellee. 5th District. Case No. 5D12-4667. Opinion filed April 30, 2014. Appeal
from the Circuit Court for Orange County, Robert J. Egan, Judge. Counsel: R.
Barry Morgan of Morgan Law Office, P.A., Orlando, for Appellant. Eric J.
Eisnaugle of Rumberger, Kirk & Caldwell, Orlando, for Appellee.

(TORPY, C.J.) We review the propriety of a summary judgment in favor of
Appellee, Publix Super Market, Inc., in this action for injuries arising from an
alleged battery committed by its employee, Appellee, Almonzo Blanton. Appellant
alleged that he was battered by Blanton during an altercation that occurred
while he was shopping in a Publix grocery store. The trial court granted summary
judgment for Publix, concluding that Blanton acted outside the scope of his
employment when he allegedly battered Appellant. We reverse, because fact
questions precluded summary judgment on this issue.

While Appellant was shopping in Publix, he momentarily left his grocery cart
unattended. Blanton noticed the unattended cart and assumed it had been
abandoned. He retrieved the cart and began to re-shelve the items. When
Appellant discovered that his cart had been moved, he confronted Blanton and the
two got into an altercation that culminated in Blanton shoving Appellant,
causing Appellant to fall to the floor. The two gave conflicting accounts of the
dispute, both claiming that the other was the aggressor. Blanton claimed he
pushed Appellant in self-defense. Appellant denied threatening Blanton and
claimed Blanton overreacted to his complaint.

An employer’s liability for an employee’s intentional acts may arise when the
acts are “within the real or apparent scope” of employment. Weiss v.
Jacobson, 62 So. 2d 904, 906 (Fla. 1953) (emphasis added). Therefore, to
obtain summary judgment, Publix had the burden to conclusively negate
Appellant’s allegation that Blanton had acted within the course and scope of his
employment when he battered Appellant. Lawrence v. Pep Boys-Manny Moe &
Jack, Inc., 842 So. 2d 303, 304-05 (Fla. 5th DCA 2003). “Conduct is within
the scope of employment if it occurs substantially within authorized time and
space limits, and it is activated at least in part by a purpose to serve the
master. The purpose of the employee’s act, rather than the method of
performance thereof, is said to be the important consideration.” Hennagan
v. Dep’t of Highway Safety & Motor Vehicles, 467 So. 2d 748, 751 (Fla.
1st DCA 1985) (emphasis added),1 cited
with approval in McGhee v. Volusia Cnty., 679 So. 2d 729, 732 (Fla.
1996). Stated another way, only when the employee “steps aside from his
employment to . . . accomplish some purpose of his own,” is the act not within
the scope of employment. City of Miami v. Simpson, 172 So. 2d 435, 437
(Fla. 1965). This is generally a question of fact for the jury. Id.

It is undisputed here that the altercation occurred on Publix’s premises
while Blanton was engaged in Publix’s business. The sole disputed issue is
whether Publix conclusively negated the contention that Blanton’s purpose (not
his method) was, at least in part, to serve Publix. Blanton acknowledged in his
deposition that the “entire encounter” was motivated by a purpose to serve his
employer. Publix asserted nevertheless, that Blanton’s motive for the push
itself was personal — the defense of his person from an attack by a customer.
Even assuming that this is the only inference that may be drawn from the
evidence, it does not support the trial court’s conclusion. An employer has an
interest in protecting its employees from attack, at least to the same extent as
it has in protecting its merchandise and property. The courts have consistently
held that battery by an employee in protecting the employer’s property is within
the scope of employment. See, e.g., Stinson v. Prevatt, 94 So.
656, 659 (Fla. 1922) (where employee shot plaintiff, jury should decide whether
employee’s purpose was to protect employer’s employees from solicitation by
employer’s competitor or “maliciously in pursuit of his own purpose”); Valeo
v. E. Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012)
(employee’s motivation was jury question where employee testified he attacked
plaintiff with padlock because he thought he was about to be robbed); Parsons
v. Weinstein Enters., Inc., 387 So. 2d 1044, 1045-46 (Fla. 3d DCA 1980)
(whether employees’ actions in chasing and beating with clubs bar patron they
believed damaged bar property were within scope of employment was question of
fact for jury); Lay v. Roux Labs., Inc., 379 So. 2d 451, 453 (Fla.
1st DCA 1980) (jury should resolve whether parking space dispute arose from
employee’s motivation to secure space for himself or protect designated parking
space from outsiders for employer’s benefit). In this case, it was the business
of the employer that placed the employee in harm’s way.2

The record here also supports the conclusion that Blanton did not act in
self-defense but instead overreacted to Appellant’s complaint. If the jury
accepts this version of the facts, it can still conclude that Blanton’s loss of
control was motivated by his purpose to serve Publix. In other words, although
his method might have been inappropriate, his purpose was, nevertheless, to
serve his employer. In business related disputes such as this one, particularly
when they occur on the employer’s premises, the courts have repeatedly concluded
that the employee’s purpose in committing a battery is a jury question. See,
e.g., Rivas v. Nationwide Pers. Sec. Corp., 559 So. 2d 668, 670 (Fla.
3d DCA 1990) (where supermarket security guard in physical altercation with
store manager struck intervening store employee, question of fact whether guard
was acting within scope of employment because “assault and battery sued upon
arose out of a job dispute and was therefore within the scope of [the guard’s]
employment . . .”); Gonpere Corp. v. Rebull, 440 So. 2d 1307, 1307 (Fla.
3d DCA 1983) (whether building manager’s act of shooting two tenants was within
scope of employment was question of fact for jury where shooting resulted from
dispute over eviction notice); Gordils v. DeVilliers, 402 So. 2d 1313
(Fla. 4th DCA 1981) (where nightclub entertainer battered patron during dispute
on premises, scope of employment was for jury); Dye v. Reichard, 183 So.
2d 863 (Fla. 4th DCA 1966) (whether trailer park manager was acting within scope
of employment when he hit invitee during dispute was for jury); Columbia by
the Sea, Inc. v. Petty, 157 So. 2d 190 (Fla. 2d DCA 1963) (whether maître d
acted within scope of employment when he hit patron in head with ashtray
following dispute over bill was for jury). This is not a case where the
employer’s business was merely incidental to the encounter, such as where a
domestic dispute happens to take place in the business premises. Here, the
dispute was directly related to the business of the employer.

As a final point, Publix is simply misplaced in its argument that its policy
against fisticuffs conclusively negates Appellant’s claim against it. Publix
bases this argument on Blanton’s deposition testimony. When asked by Publix’s
counsel if he thought putting his hands on Appellant was “something that
[Publix] wanted [him] to do or asked for [him] to do,” the employee replied in
the negative. This question only focuses on whether Blanton was actually acting
within the scope of employment, not whether he apparently was acting within the
scope. Under the latter theory, whether the employer authorized the act, or even
forbade it, is immaterial. See Stinson, 94 So. at 657 (an act may
be within “apparent” scope of employment even though “not authorized by, or was
forbidden by, the employer. . . .”).

REVERSED AND REMANDED. (GRIFFIN and BERGER, JJ., concur.)

__________________

1The test for “scope of employment” is the
same regardless of whether the employer is a public or private entity. City
of Miami v. Simpson, 172 So. 2d 435, 437 (Fla. 1965).

2Of course, if the jury accepts Blanton’s
testimony that he was reasonably acting in self-defense and did not use
excessive force, then Publix will prevail, not because Blanton acted outside the
scope of his employment, but because self-defense is a defense to battery. On
the other hand, if the jury determines that Blanton’s subjective purpose was
self-defense but that he acted unreasonably or excessively, Publix would be
vicariously liable.