Jones v. Latex Constr. Co., 10-10681

• Decision Date: 28 February 2012
• Docket Number: D.C. Docket No. 3:07-cv-00941-HES-TEM,No. 10-10681,10-10681
• Parties: ELVA JONES, as Personal Representative of the ESTATE OF WENFORD KILLINGS, Plaintiff - Appellant, v. LATEX CONSTRUCTION COMPANY, Defendant - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

ELVA JONES, as Personal Representative of the ESTATE OF WENFORD KILLINGS, Plaintiff - Appellant, v. LATEX CONSTRUCTION COMPANY, Defendant - Appellee.

No. 10-10681

D.C. Docket No. 3:07-cv-00941-HES-TEM

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Dated: February 28, 2012

[DO NOT PUBLISH]

Appeal from the United States District Court

for the Middle District of Florida

Before MARCUS, WILSON and HILL, Circuit Judges.

HILL, Circuit Judge:

Latex Construction Company's employee, Donald Cone, negligently caused the death of Wenford Killings in an automobile accident. Elva Jones, on behalf of Killings' estate, sued both Cone and the company for wrongful death. Following the close of her case, the district court granted judgment as a matter of law to the company on the issue of its respondeat superior liability to Jones, and later entered a final judgment in its favor. This appeal followed.

I.

Donald Cone, an Arkansas resident, was hired by Latex Construction Company ("Latex") to work as a heavy equipment operator helping to lay a gas pipeline extending from Savannah, Georgia, to Orange Park, Florida. Latex employees traveled along with the continuously moving jobsite. Latex and Cone entered into an agreement whereby Latex leased Cone's four-wheel drive pick-up truck for $30 a day. The agreement provided in part that:

The reimbursement paid by Latex Construction Company for the use of employee's vehicle/rig begins at the company warehouse and ends on the work site/right of way, and such reimbursement will only apply for working time on the job.

Cone was working in Callahan, Florida, in March of 2007, when he rear-ended a car driven by Wenford Killings. Both Cone and Latex admitted thatCone's negligence was the legal cause of Killings' death. Latex, however, denied that Cone was its agent at the time of the accident and, therefore, denied any liability under the doctrine of respondeat superior. The issues at trial were limited to damages and whether Cone was acting within the course and scope of his employment at the time of the accident so as to make his employer liable for his negligence.

At trial, the investigating police officer testified that Cone told her he "was on his way to work at the time of the crash." That was the sole evidence at trial as to where Cone might have been going at the time of the accident.¹

After Jones closed her evidence as to Latex's liability under respondeat superior, the district court, upon motion, granted the company judgment as a matter of law, holding that there was insufficient evidence before the jury to permit a reasonable juror to conclude that Cone was acting within the course and scope of his employment at the time of the accident. The court stated that "it would be all speculation on their part as to what was going on that day, whether or not he was on the clock or off the clock at that time."²

Jones requested leave to reopen her evidence to produce Cone to testify towhere he was going, but the district court denied this request as Jones had told the court that she had concluded her evidence on liability.³ The court stated that it would not permit Jones to reopen her evidence in response to the court's disposition of the motion for directed verdict. To do otherwise, the court suggested, would be unfair to Latex.

Shortly after the directed verdict for Latex, Jones settled with Cone. Subsequently, she filed this appeal of the directed verdict.

We review the district court's directed verdict de novo since it is a question of law. Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1246 (11th Cir. 2001). We review the denial of permission to reopen Jones' liability evidence for an abuse of discretion. See Lundgren v. McDaniel, 814 F.2d 600, 607 (11th Cir. 1987).

II.

In order for Latex to be liable for Cone's negligence, Jones had to present sufficient evidence for a reasonable juror to conclude that Cone was acting for the benefit of his employer at the time and place of the accident - either by performing the kind of work he was hired to do, by serving a purpose of his employer, or by committing the act when he was working. Sussman v. Fla. E. Coast Properties,Inc., 557 So. 2d 74, 75-76 (Fla. 3d DCA 1990). Jones sought to demonstrate that Cone committed his negligent act while he was "on a work related mission." Jones' theory was that Cone was using his truck - for which Latex paid him $30 a day - to deliver both himself and equipment to the jobsite, and that the officer's testimony that Cone said he was "headed to work" was sufficient to support a jury finding to that effect. We disagree.

The general rule is that an employee who is going to or coming from work is not acting within the scope of his employment. See Fla. Stat.§ 440.092(2) ("[a]n injury suffered while going to or coming from work is not an injury arising out of and in the course of employment . . ."). While this is a workman's compensation statute, it codifies the common law rule governing agency while the employee is traveling to or from work. In order to remove Cone's travel from this rule, Jones argues that the...