Fla. Atl. Univ. Bd. of Trustees v. Lindsey

• Citation: 263 Ed. Law Rep. 997,50 So.3d 1205
• Decision Date: 22 December 2010
• Docket Number: Nos. 4D09-4006, 4D09-4149.,s. 4D09-4006, 4D09-4149.
• Parties: FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES and Scott Rubin, Appellants, v. Jason LINDSEY, Appellee.
• Court: Court of Appeal of Florida (US)

50 So.3d 1205

263 Ed. Law Rep. 997

FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES and Scott Rubin, Appellants,

v.Jason LINDSEY, Appellee.

Nos. 4D09-4006, 4D09-4149.

District Court of Appeal of Florida,

Fourth District.

Dec. 22, 2010.

Adam M. Balkan of Balkan & Patterson, L.L.P., Boca Raton, for appellant Scott Rubin.

Joan Carlos Wizel, Stephen Hunter Johnson, and Shaun Koby of Lydecker Diaz, Miami, for appellant Florida Atlantic University Board of Trustees.

Rhea P. Grossman of Rhea P. Grossman, P.A., Fort Lauderdale, for appellee.

HAZOURI, J.

Scott Rubin sued Florida Atlantic University Board of Trustees (FAU) for injuries he sustained in a wrestling accident while participating in an FAU wrestling club practice on campus.

In addition to FAU, Rubin also sued FAU's wrestling club's president, Jason Lindsey, alleging he was negligent in failing to inspect the equipment and correct a dangerous condition in the gymnasium where the practice took place, and negligently maintained the equipment by inadequatelytaping or fastening the wrestling mats together. Rubin alleged the dangerous condition was the proximate cause of his injuries.

After much discovery, Lindsey moved for summary judgment, asserting he was an agent of FAU and that the claim against him was barred by section 768.28(9)(a) ¹, Florida Statutes (2008). Lindsey contended that as an agent of FAU, he was entitled to the sovereign immunity exemption of an employee or agent of the state university. The trial court granted the motion for summary judgment, determining there were no material issues of fact that would dispute that Lindsey was an agent of FAU and, therefore, could not be a named party and was entitled to immunity. FAU and Rubin both assert that the trial court erred and that there are genuine material issues of fact that are in dispute, thereby precluding summary judgment. We agree and reverse.

"The standard of review of an order granting summary judgment is de novo." Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (quoting Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)). Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in 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).

When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action. Rather, the court's function is solely to determine whether the record conclusively shows that the moving party proved a

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