Aloff v. Neff-Harmon, Inc.

463 So. 2d 291, 10 Fla. L. Weekly 338, 1984 Fla. App. LEXIS 16725
CourtDistrict Court of Appeal of Florida
DecidedDecember 11, 1984
DocketAR-279
StatusPublished
Cited by18 cases

This text of 463 So. 2d 291 (Aloff v. Neff-Harmon, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aloff v. Neff-Harmon, Inc., 463 So. 2d 291, 10 Fla. L. Weekly 338, 1984 Fla. App. LEXIS 16725 (Fla. Ct. App. 1984).

Opinion

463 So.2d 291 (1984)

Cheryl Sue ALOFF, Appellant,
v.
NEFF-HARMON, INC., Appellee.

No. AR-279.

District Court of Appeal of Florida, First District.

December 11, 1984.
Rehearing Denied February 7, 1985.

*292 Jeff Tomberg of Tomberg & Tomberg, Boynton Beach, and John R. Young of Hamilton, James, Merkle & Young, West Palm Beach, for appellant.

Toby S. Monaco of Dell, Graham, Willcox, Barber, Henderson, Monaco & Cates, Gainesville, and William Pierson, Gainesville, for appellee.

ZEHMER, Judge.

Cheryl Sue Aloff, plaintiff in this personal injury action, appeals a summary judgment entered for her employer, Neff-Harmon, Inc., on the grounds that the plaintiff's exclusive remedy lies under the workers' compensation law pursuant to section 440.11, Florida Statutes (1977). We reverse.

At the time of this incident, plaintiff was employed as a cocktail waitress at the Gainesville Sea Fox, a restaurant and lounge. She reported for the evening shift on December 10, 1977, punched in on the time clock around 7 p.m., and worked throughout the evening. Her normal working hours extended some fifteen to thirty minutes past the closing hour of 2 a.m. in order to permit her to finish accounting for customer checks and to put her station in order. She was not required to do any heavy cleaning after closing and was expected by the owner to be out of the premises by 2:30 a.m. It was customary for all cocktail waitresses, including plaintiff, *293 to leave together once they had finished their duties. On the night in question, plaintiff completed her work and punched out around 2:30 a.m. The other cocktail waitresses left at that time to attend a party at plaintiff's house. The manager of the bar, a personal friend of plaintiff, asked her to remain behind to talk with him, and she did so. Occasionally, employees remained after finishing their work and punching out to have a drink or socialize with one another.

The manager and plaintiff were personal friends; and on this particular evening, they talked about matters ranging from his problems with his job to problems with his girlfriend. The members of the band which had been playing in the lounge completed packing and left about 4 a.m. The manager then set the alarm to the bar's back door, turned out the lights, and handed plaintiff a key, asking her to put it in the door lock and open the door when the buzzer sounded about thirty seconds later. When told that plaintiff was unable to get the key into the lock in the dark, the manager went over and unlocked the door. Upon opening the door, the manager and plaintiff were surprised by five armed black men "right outside the door," one of whom directed the manager and plaintiff to go back inside the lounge. Plaintiff was subsequently robbed of $150, assaulted, raped by three of the intruders, and suffered serious injuries. Plaintiff sued her employer, Neff-Harmon, and others, claiming negligence regarding the use and operation of the security system installed at the restaurant, which should have notified police — but did not — in time to prevent the assault and rape of plaintiff, which occurred some twenty to thirty minutes after the intruders first entered.

The trial court granted Neff-Harmon's motion for summary judgment on the sole ground that the immunity provisions of section 440.11 limited plaintiff's remedy exclusively to benefits under the workers' compensation law. In the order, the court expressly stated that "the issue of whether an injury falls under the protective cloak of the law relating to Workers' Compensation is a question of law to be determined only by the Court, and not by a jury" (R. 591). The court concluded that there were no material disputed facts, and, relying upon Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla. 1980), granted summary judgment for the employer.

In order for an employee's injury to be covered by the workers' compensation act, "the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something identical to it." Evans v. Food Fair Stores, Inc., 313 So.2d 663, 664 (Fla. 1975). In Grady v. Humana, Inc., 449 So.2d 984 (Fla. 1st DCA 1984), reversing summary judgment on the same issue as presented here, the pertinent law was summarized at page 985 as follows:

Whether an injured workman is an employee whose injury arose out of and in the scope of his employment is ordinarily a question of fact to be decided by the trier of fact, be that judge, jury, or deputy commissioner. E.g., Rogers v. Barrett, 46 So.2d 490 (Fla. 1950); Adams v. Wagner, 129 So.2d 129 (Fla. 1961). Accordingly, it is reversible error to grant a summary judgment in favor of an employer on grounds that chapter 440 provides the exclusive remedy to the employee where `an issue of fact exists as to whether plaintiff was in the course and scope of his employment at the time of the injury.' Lemoine v. Flanigan's Enterprises, Inc., 445 So.2d 414 (Fla. 4th DCA 1984). Genuine issues of fact may arise on undisputed facts where different inferences may reasonably be drawn therefrom. Aldridge v. Yellow Cab of Gainesville, Inc., 448 So.2d 1129 (Fla. 1st DCA 1984); Gravas v. The Mackle Company, 444 So.2d 1159 (Fla. 3d DCA 1984).

Furthermore, "where the evidence before the trial court is susceptible of more than one inference, one of which will support the plaintiff's view of the facts, a summary *294 judgment for the defendant should not be entered." Burkett v. Parker, 410 So.2d 947, 948 (Fla. 1st DCA 1982). A summary judgment is appropriate only when "the facts are so crystalized that nothing remains but questions of law" and there is not the "slightest doubt" as to any issue of material fact. Harris v. Lewis State Bank, 436 So.2d 338, 340 (Fla. 1st DCA 1983).

Whether plaintiff's remaining at the lounge after completing her work and punching out on the time clock was in the scope and course of her employment, or whether her activity was, as she contends, purely a personal social undertaking beyond the course and scope of her employment, was a question of fact for the jury. Grady v. Humana, Inc., supra. In its order granting summary judgment, the trial court supported its conclusions of law by referring to portions of the evidence which indicated that plaintiff, after punching out, talked to the bar manager about "professional things that had to do with the lounge" and assisted the manager "in actually closing the business establishment" by attempting to insert the key into the door. The court apparently overlooked additional evidence showing that plaintiff's conversations with the manager primarily concerned personal matters — the manager's personal problems with the business and with his girlfriend — and that after she had punched out the plaintiff did absolutely nothing for an hour and a half to assist in closing the business except attempt to insert the key into the door lock as they were ready to depart.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Scottsdale Insurance v. GFM Operations, Inc.
789 F. Supp. 2d 1278 (S.D. Florida, 2011)
Ex Parte Sunbelt Transport, Inc.
23 So. 3d 1138 (Court of Civil Appeals of Alabama, 2009)
Futch v. Wal-Mart Stores, Inc.
988 So. 2d 687 (District Court of Appeal of Florida, 2008)
Floyd v. DEPARTMENT OF CHILDREN AND FAMIL.
855 So. 2d 204 (District Court of Appeal of Florida, 2003)
Vance v. Barton-Malow Thatcher, Inc.
680 So. 2d 492 (District Court of Appeal of Florida, 1996)
Sky Chefs, Inc. v. Davenport
664 So. 2d 1038 (District Court of Appeal of Florida, 1995)
Lee v. Treasure Island Marina, Inc.
620 So. 2d 1295 (District Court of Appeal of Florida, 1993)
Ball v. Florida Podiatrist Trust
620 So. 2d 1018 (District Court of Appeal of Florida, 1993)
McDonough v. First Coast Community Bank
617 So. 2d 766 (District Court of Appeal of Florida, 1993)
Bloempoort v. Regency Bank of Florida
567 So. 2d 923 (District Court of Appeal of Florida, 1990)
Staniszeski v. Walker
550 So. 2d 19 (District Court of Appeal of Florida, 1989)
Warehouse Foods, Inc. v. CORPORATE RISK MGMT. SERVICES, INC.
530 So. 2d 422 (District Court of Appeal of Florida, 1988)
STATE, DEPT. OF ENVIRON. REGULATION v. CP Developers, Inc.
512 So. 2d 258 (District Court of Appeal of Florida, 1987)
Williams v. Bevis
509 So. 2d 1304 (District Court of Appeal of Florida, 1987)
American Legion Post 30 v. Gailey
498 So. 2d 1321 (District Court of Appeal of Florida, 1986)
Loznicka v. Flexitallic Gasket Co.
489 So. 2d 1229 (District Court of Appeal of Florida, 1986)
Johns v. State, Dept. of Health and Rehab.
485 So. 2d 857 (District Court of Appeal of Florida, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
463 So. 2d 291, 10 Fla. L. Weekly 338, 1984 Fla. App. LEXIS 16725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aloff-v-neff-harmon-inc-fladistctapp-1984.