484 F.3d 1343 (11th Cir. 2007), 06-12967, Locke v. SunTrust Bank

Docket Nº:06-12967.
Citation:484 F.3d 1343
Party Name:Martha LOCKE, f.k.a. Martha Villareal, Plaintiff-Appellant, v. SUNTRUST BANK, Defendant-Appellee.
Case Date:April 23, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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484 F.3d 1343 (11th Cir. 2007)

Martha LOCKE, f.k.a. Martha Villareal, Plaintiff-Appellant,

v.

SUNTRUST BANK, Defendant-Appellee.

No. 06-12967.

United States Court of Appeals, Eleventh Circuit.

April 23, 2007

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Peter W. van den Boom, John W. Frost, II, Frost, Tamayo, Sessums & Aranda, P.A., Bartow, FL, for Locke.

Monterey Campbell, Kristie Hatcher-Bolin, Mark N. Miller, Gray, Harris, Robinson, Lane, Trohn, P.A., Lakeland, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HULL and MARCUS, Circuit Judges, and BARZILAY, [*] Judge.

HULL, Circuit Judge:

Plaintiff-appellant Martha Locke filed suit against her employer, SunTrust Bank, for injuries she sustained when a robber shot her during a bank robbery of the SunTrust branch where she worked. The district court dismissed Locke's complaint with prejudice, concluding: (1) that Locke's negligence claim against her employer was barred by the exclusivity provisions of Florida's workers' compensation laws; and (2) that Locke's complaint failed to state a claim for an intentional tort by her employer. After review and oral argument, we affirm.

I. BACKGROUND 1

A. Locke's complaint

Locke's complaint alleges that on January 8, 2002, she was working as a manager at SunTrust's Recker Highway bank branch in Winter Haven, Florida (the "bank"). Two men entered the bank--one armed with a can of mace and one armed with a handgun--and proceeded to rob the bank. The gunman stood by the teller's window, while the other robber stood by the vault door. The gunman eventually fired twice at two women behind the teller's window. Because the teller's window glass was bulletproof, the bullets ricocheted off the glass. According to Locke's complaint, this "enraged" the gunman, and he walked toward Locke in anger and shot Locke point-blank in the face. The gunman then stepped on Locke and stole her purse.

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Locke's complaint also alleges that prior to the January 8, 2002, date she was shot, SunTrust was aware that a teller at the same bank had been pistol-whipped by a bank robber. Locke asserts that several unspecified "incidents of aggravated assault had taken place at" this bank branch prior to January 8, 2002. Locke further alleges that after the pistol-whipping incident, SunTrust hired a security guard for the bank branch. Locke was told that SunTrust had hired a security guard and that the security guard would be in place at the bank branch. On January 8, 2002, there was no security guard in place at the branch, because SunTrust had decided to eliminate the security guard for "economic reasons."

Locke's complaint contains two counts: (1) negligence and (2) intentional tort. Count 1 alleges that SunTrust had a duty to protect Locke and breached its duty by failing to provide sufficient security at its bank branch. Count 2 alleges that SunTrust knew of the presence of unsafe working conditions at its bank branch, failed to provide sufficient security despite that knowledge, and thereby engaged in conduct so "outrageous as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community."

B. Dismissal order

SunTrust filed a motion to dismiss Locke's complaint, which the district court granted with prejudice. As to Count 1 (negligence), the district court concluded that Locke's claim was barred by the exclusivity provisions of the Florida workers' compensation laws because her injuries were causally related to her employment as a bank manager. As to Count 2 (intentional tort), the district court concluded that Locke's allegations, even if proven, would not support an intentional tort claim against SunTrust. The district court determined that because Locke did not allege "any additional facts to support a cause of action ... leave to amend ... would be futile." Locke appealed.

II. DISCUSSION

A. Jurisdiction

Preliminarily, we address our jurisdiction over Locke's appeal. The parties do not dispute that Locke's Notice of Appeal was filed more than thirty days after the entry of the district court's dismissal order on April 10, 2006. See Fed. R.App. P. 4(a)(1)(A) (thirty-day rule). Locke's Notice of Appeal was due on or before May 10, 2006.

On May 15, 2006, Locke filed a Motion to Extend Time to appeal, in which her counsel asserted that a legal assistant at his firm had miscalculated the thirty-day deadline. On May 22, 2006 (seven days later), the district court granted Locke's Motion to Extend Time, finding "excusable neglect." Locke then filed this appeal on the same day.

Under Fed. R.App. P. 4(a)(5)(A), a district court may extend the time to file a Notice of Appeal if: (i) a party moves to extend no later than thirty days after the time originally prescribed expires; and (ii) the movant "shows excusable neglect or good cause." Locke moved for an extension five days after the original deadline expired. This Court previously has recognized that the phrase "excusable neglect" may include, when appropriate, late filings caused by inadvertence, mistake, or carelessness under certain circumstances. See Advanced Estimating Sys. v. Riney, 77 F.3d 1322, 1324 (11th Cir.1996). Further, SunTrust does not explain on appeal why it contests the district court's finding of excusable neglect. 2 Accordingly, we conclude

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that SunTrust has not established that the district court abused its discretion in granting Locke an extension of time to file her appeal or that we lack jurisdiction over Locke's appeal.

B. Count 1 (negligence)

Under Florida law, an employer shall pay an employee workers' compensation benefits "if the employee suffers an accidental injury or death arising out of work performed in the course and the scope of employment." Fla. Stat. Ann. § 440.09 (2001). 3 As a general matter, the workers' compensation liability of an employer "shall be exclusive and in place of all other liability of such employer ...." Id. § 440.11. This is sometimes known as the workers' compensation exclusivity bar. See Fla. Power & Light Co. v. Huwer, 508 So.2d 489, 490 (Fla.Dist.Ct.App.1987).

The Florida courts have established a two-part, work-connectedness test for whether the exclusivity bar applies, which requires that a work-related injury must both (1) arise out of and (2) occur in the course of employment. Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099, 1104 n. 7 (Fla.1989); Strother v. Morrison Cafeteria, 383 So.2d 623, 624 (Fla.1980); Bituminous Cas. Corp. v. Richardson, 148 Fla. 323, 4 So.2d 378, 378 (1941). "[T]o be compensable, an injury must arise out of employment in the sense of causation and be in the course of employment in the sense of continuity of time...

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