FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Keith P. Spoto,
Margarett Fields, pro se.
L. Merrill of Marshall, Dennehey, Warner, Coleman &
Goggin, Orlando, for Appellee The Devereux Foundation, Inc.
appearance for remaining Appellees.
Fields appeals from a final summary judgment in favor of The
Devereux Foundation on her claims for assault, battery, abuse
of process, intentional infliction of emotional distress,
negligent hiring, and negligent supervision. Because Devereux
failed to meet its initial burden to establish the
nonexistence of a genuine issue of material fact with respect
to the assault and battery claims, we reverse as to those
claims. In all other respects, we affirm without comment.
undisputed facts for summary judgment purposes are these. Ms.
Fields is the paternal grandmother of D.F., a juvenile who
was removed from his parents' care but later reunified
with his father. D.F. and his father lived with Ms. Fields at
her home. D.F.'s mother sought and was granted visitation
with D.F. Devereux-an organization that provides families
with behavioral and social services-was hired to facilitate
the visitations. An employee of Devereux named Jamal Plummer
was assigned as case manager. One of his duties was to
conduct periodic home visits with D.F.
Plummer failed in the performance of those duties and, to
make matters worse, submitted fake documents to Devereux
stating that he had completed visits that never really
happened. It appears that he visited the home only once. On
that occasion, he was greeted at the door by Ms. Fields. He
informed her that he was there to take D.F. for court-ordered
visitation with his mother. When, upon Ms. Fields'
request, he was unable to provide anything to show her that
he was in fact authorized to do that, Ms. Fields refused to
allow him to take D.F. from the home.
Ms. Fields resisted Mr. Plummer's efforts to take her
grandson, he grew frustrated and began acting aggressively.
She alleges that he cocked his fist as if he was going to
strike her, causing her to feel startled and, as a result, to
fall backward into the door frame. She sued Devereux for
assault and battery, asserting that Devereux was liable for
Mr. Plummer's conduct under a theory of respondeat
moved for summary judgment. In its motion, Devereux argued
that it could not be held vicariously liable for assault or
battery because Mr. Plummer's alleged conduct was outside
the scope of his employment with Devereux. It offered no
affidavits or other summary judgment evidence, however, that
bore either on the precise details of Mr. Plummer's
conduct during the incident or on the scope of his employment
with Devereux. Instead, it argued simply that "there is
no evidence [Mr. Plummer] was acting in the course and scope
of his employment when" he allegedly assaulted and
battered Ms. Fields. The trial court granted Devereux's
motion and entered a final judgment in its favor, from which
Ms. Fields filed this timely appeal.
review an order granting summary judgment de novo. Deep
S. Sys., Inc. v. Heath, 843 So.2d 378, 379 (Fla. 2d DCA
2003). Summary judgment is proper where "the pleadings
and summary judgment evidence on file show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Fla. R. Civ. P. 1.510(c). "Summary judgment
evidence" consists of "any affidavits, answers to
interrogatories, admissions, depositions, and other materials
as would be admissible in evidence." Id.
whether the pleadings and summary judgment evidence show that
there is no genuine issue of material fact is a two-step
process. First, "[i]t is the movant's burden to
prove the nonexistence of genuine issues of material
fact." Estate of Githens ex rel. Seaman v. Bon
Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d
1272, 1274 (Fla. 2d DCA 2006). Once the movant carries that
initial burden, the burden shifts to the party opposing
summary judgment to show that there actually is an issue of
material fact remaining to be tried. McNabb v. Taylor
Elevator Corp., 203 So.3d 184, 185 (Fla. 2d DCA 2016).
The burden does not shift to the opposing party, however,
unless and until the movant carries its initial burden of
demonstrating that no genuine issue of material fact exists.
Bryson v. Branch Banking & Tr. Co., 75 So.3d
783, 786 (Fla. 2d DCA 2011). The movant cannot satisfy that
initial burden merely "by showing that up until the time
of his motion his adversary has not produced sufficient
evidence in support of his pleadings to require a
trial." Derogatis v. Fawcett Mem'l Hosp.,
892 So.2d 1079, 1083 (Fla. 2d DCA 2004) (quoting Matarese
v. Leesburg Elks Club, 171 So.2d 606, 607 (Fla. 2d DCA
only summary judgment issue Devereux argued in the trial
court concerning Ms. Fields' assault and battery claims
was that it could not be held vicariously liable for Mr.
Plummer's intentional torts. In Florida, an employer is
vicariously liable for an employee's tortious conduct
where the conduct occurs within the scope of the employment.
Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA
1986). In the case of intentional torts, a plaintiff's
mere showing that an employee was on duty at the time he
assailed someone is not sufficient to establish that the
conduct occurred within the scope of employment. Id.
Rather, the employee's conduct must be "of the kind
he was employed to perform, " must occur
"substantially within the time and space limits
authorized or required by the work to be performed, "
and must be "activated at least in part by a purpose to
serve the master." Iglesia Cristiana La Casa Del
Señor, Inc. v. L.M., 783 So.2d 353, 357 (Fla. 3d
DCA 2001). Thus, an employer can generally be held
vicariously liable for an intentional tort where the
employee's tortious conduct is undertaken in furtherance
of the employer's interests. Perez v. Zazo, 498
So.2d 463, 465 (Fla. 3d DCA 1986); see also, e.g.,
Columbia By The Sea, Inc. v. Petty, 157 So.2d 190,
192 (Fla. 2d DCA 1963) (holding that jury could conclude that
maitre d' of restaurant acted within scope of employment
when he battered customer with an ashtray during an attempt
to get him to pay thirty-five-cent upcharge for roquefort
salad dressing); Jax Liquors, Inc. v. Hall, 344
So.2d 247, 247 (Fla. 1st DCA 1976) ...