Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1968
Lower Tribunal No. 20-9490
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Yarelys Ibarra,
Appellant,
vs.
Ross Dress for Less, Inc., etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Charles K.
Johnson, Judge.
Best & Menendez, Virginia M. Best and Johanna M. Menendez, for
appellant.
Gaebe, Mullen, Antonelli & DiMatteo, Emily C. Smith and Miriam R.
Merlo, for appellee.
Before EMAS, GORDO and BOKOR, JJ.
GORDO, J.
Yarelys Ibarra appeals a trial court order granting final summary
judgment in favor of Ross Dress For Less, Inc. (“Ross”). We have
jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Because Ibarra fails to
demonstrate any genuine dispute of material fact, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 9, 2019, Ibarra was shopping in a Ross store in Coral
Gables, Florida. At approximately 5:29PM, Ibarra was hit by Maria Rosario’s
shopping cart. Rosario was a Ross employee, who came into the store
before her shift to shop. At the time of the incident, she was wearing her
work clothes and employee badge but was not scheduled to start work until
6:00PM. Rosario clocked in for work at 5:58PM.
On May 1, 2020, Ibarra filed a complaint for damages against Ross
alleging it breached its duty of care under the doctrine of respondeat superior
when Rosario pushed the loaded shopping cart into her. Ross filed its
answer and affirmative defenses. Ibarra filed a reply. On April 29, 2021,
Ross filed a motion for summary judgment arguing it could not be held liable
as the record clearly showed Rosario was off duty at the time the incident
occurred.
In June 2021, Ibarra filed a response and memorandum in opposition
to the motion for summary judgment arguing there was a genuine dispute of
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material fact over whether Rosario was acting as an employee of Ross when
the incident occurred because Rosario was wearing her work clothes and
badge and her shopping cart was full. The trial court held a hearing on the
motion on July 16, 2021. The trial court subsequently entered an order
granting Ross’ motion for summary judgment and final summary judgment
finding there was no genuine dispute that Rosario was not working as a Ross
employee when the incident occurred and therefore Ross was not liable for
Ibarra’s injuries under the doctrine of respondeat superior. This appeal
followed.
STANDARD OF REVIEW
“The standard of review on orders granting final summary judgment is
de novo.” Orozco v. McCormick 105, LLC,
276 So. 3d 932, 935 (Fla. 3d
DCA 2019). As the hearing on Ross’ motion for summary judgment was held
on July 16, 2021, the new summary judgment standard applies. See In re
Amends. to Fla. R. of Civ. P. 1.510,
317 So. 3d 72, 77 (Fla. 2021) (stating
the effective date of the new rule is May 1, 2021, and the amendments shall
“govern the adjudication of any summary judgment motion decided on or
after that date”).
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LEGAL ANALYSIS
Summary judgment is appropriate where the “movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). Genuine disputes are
those in which “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” In re Amends. to Fla. R. of Civ. P. 1.510,
309 So. 3d 192, 194 (Fla. 2020) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.”
Id. (quoting
Anderson,
477 U.S. at 249–50 (citations omitted)).
The doctrine of respondeat superior provides that “an employer cannot
be held liable for the tortious or criminal acts of an employee, unless the acts
were committed during the course of the employment and to further a
purpose or interest, however excessive or misguided, of the employer.”
Iglesia Cristiana La Casa Del Senor, Inc. v. L.M.,
783 So. 2d 353, 356 (Fla.
3d DCA 2001). “An employee’s conduct is within the scope of his
employment, where (1) the conduct is of the kind he was employed to
perform, (2) the conduct occurs substantially within the time and space limits
authorized or required by the work to be performed, and (3) the conduct is
activated at least in part by a purpose to serve the master.”
Id. (citing
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Sussman v. Fla. E. Coast Props., Inc.,
557 So. 2d 74, 75–76 (Fla. 3d DCA
1990)). Ibarra asserts the trial court improperly entered summary judgment
in Ross’ favor because there was a genuine dispute of material fact whether
Rosario was acting on behalf of Ross when the incident occurred.
The Florida Supreme Court has emphasized that one “of the principal
purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses.” In re Amends. to Fla. R. of Civ. P. 1.510,
309 So. 3d 192, 194 (Fla. 2020) (quoting Celotex Corp. v. Catrett,
477 U.S.
317, 327 (1986)). Under the new summary judgment rule, “[w]hen opposing
parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007). As such, when
contesting a motion for summary judgment, an opposing party “must do more
than simply show that there is some metaphysical doubt as to the material
facts.” In re Amends. to Fla. R. of Civ. P. 1.510, 309 So. 3d at 193 (quoting
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586
(1986)).
Here, Ibarra fails to demonstrate more than some metaphysical doubt
as to the material facts. Based on the record evidence produced through
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depositions, testimony and affidavits no genuine dispute of material fact
exists that Rosario was not on duty or acting on Ross’ behalf when the
incident occurred. While Ibarra asserts several arguments to the contrary,
none are significantly probative or supported by the evidence. Accordingly,
based on the record evidence, we find the trial court properly awarded Ross
summary judgment.
Affirmed.
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