Schwartz v. Zippy Mart, Inc.

Decision Date07 May 1985
Docket NumberAN-64,Nos. AN-63,s. AN-63
Citation470 So.2d 720,10 Fla. L. Weekly 1134
Parties50 Fair Empl.Prac.Cas. (BNA) 464, 10 Fla. L. Weekly 1134 June Jacqueline SCHWARTZ, Appellant, v. ZIPPY MART, INC., etc., et al., Appellees. Carrie ESSES, Appellant, v. ZIPPY MART, INC., etc., et al., Appellees.
CourtFlorida District Court of Appeals

PER CURIAM.

Schwartz and Esses bring this consolidated appeal from identical summary final judgments in favor of defendant Zippy Mart, Inc.

The appeal turns on whether appellants' claims in tort against appellee Zippy Mart, Inc. are barred because the Workers' Compensation Act provides the exclusive remedy for their claims. We find that it does and affirm the trial court's judgment for appellee Zippy Mart.

Appellants Schwartz and Esses are former employees of Zippy Mart, Inc., a convenience store corporate chain. Bobby Adams was employed by Zippy Mart as supervisor of nine Zippy Mart stores. Schwartz and Esses were employed at stores supervised by Adams.

Each filed a complaint in circuit court against Adams and Zippy Mart for assaults and batteries alleged to have been committed by Adams in the course and scope of his employment with Zippy Mart. In their respective complaints each plaintiff alleged a count for assault and a count for battery against Zippy Mart under the doctrine of respondeat superior. Plaintiffs each alleged a third count against Zippy Mart for negligent hiring, supervision and retention of its employee Adams.

In the battery count each appellant alleged that while Adams was performing his supervisory duties over her during the course of her employment with Zippy Mart, he intentionally pinched, grabbed and patted her shoulders, buttocks and other parts of her body against her will. Esses further maintained in her complaint that Adams forcibly grabbed her about her breasts and her person against her will. According to Esses' deposition concerning this occasion, Adams attacked her while she was stocking a cooler with beer and milk. Esses testified that during this incident Adams unbuttoned her blouse, grabbed her breasts and tore the zipper on her pants. Schwartz deposed that Adams french-kissed her, unbuttoned her blouse, put his hands inside her bra and grabbed her breasts. They both testified that on a number of occasions Adams hugged, kissed, embraced, patted and pinched them against their wills.

In the assault count Schwartz and Esses realleged the battery allegations, which maintained that as a result of the batteries Schwartz and Esses endured mental suffering. They further alleged in the assault count that because of the unpermitted touchings and the suggestions for sexual intercourse they were placed in fear and endured mental suffering.

The final count alleged Zippy Mart breached its duty to provide Schwartz and Esses with a safe place to work. Appellants alleged that Zippy Mart knew or should have known of the propensities of Bobby Adams to touch female employees under his supervision against their will and that Zippy Mart was negligent in failing to properly supervise Adams and in failing to prevent the assaults and batteries. We will later address our conclusion that the pleadings, depositions, admissions and affidavits indicate that Zippy Mart could be guilty of no more than simple negligence in this regard.

Appellants concluded by alleging that as a direct result of these assaults and batteries they had endured great suffering of mind for which they sought compensatory and exemplary damages. Appellants sought to hold both Adams and Zippy Mart jointly and severally liable for these damages.

Following consolidation of these cases for trial, Zippy Mart filed a motion for summary final judgment in each of these cases. As grounds for these motions Zippy Mart alleged it could not be held vicariously liable for the alleged acts of Adams because the acts were outside the scope of Adams' employment and were not in the furtherance of Zippy Mart's business. In addition, Zippy Mart alleged that the trial court lacked jurisdiction over the cases because the Workers' Compensation Act provided appellants with an exclusive remedy.

The trial court granted Zippy Mart's motion for summary judgment in favor of Zippy Mart (only), finding that there were no genuine issues of material fact on

(1) the question of said defendant's vicarious liability under the doctrine of respondeat superior for the alleged assaults and batteries complained of; and

(2) the question of said defendant's negligence in hiring, retention and/or supervision of defendant Bobby Adams.

(The court did not grant summary judgment in favor of Bobby Adams.)

The trial court did not address Zippy Mart's summary judgment contention that the Workers' Compensation Act provides the exclusive remedy for appellants' claims. We find that since the Act does provide the exclusive remedy, this provides sufficient basis for the summary final judgment in favor of the employer Zippy Mart.

There is no dispute between the parties that the alleged assaults and batteries occurred during the course and scope of appellants' employment with Zippy Mart. Appellants argue that a mental or nervous injury due to fright or excitement only is not an injury by accident arising out of the employment. This is true, and Section 440.02, Florida Statutes (1979), so provides. However, the injuries incurred by appellants appear not to be due to fright or excitement only, but to have been primarily caused by Adams' batteries. It appears the alleged batteries were primarily responsible for appellants' suffering. Esses testified that the "cooler" incident was "the biggest one that [stood] out in [her] mind" and Schwartz quit within a week of the time Adams allegedly unbuttoned her blouse and grabbed her breasts.

The alleged batteries suffered by Schwartz and Esses are sufficient injuries to be covered by the Workers' Compensation Act. These unpermitted touchings and grabbings were more than "mere" touchings or technical batteries.

Appellants argue that the legislature never intended sexual harassment to be covered by the Workers' Compensation Act. If this is true, it should be addressed by the legislature. We are not free to hold that if the battery is of a sexual nature that the employee is not entitled to workers' compensation coverage and benefits. Nor are we free to hold that a battery is not a battery. Our court has held that batteries of slighter touchings than these are sufficient traumas to entitle the victims to workers' compensation coverage. In Prahl Brothers, Inc. v. Phillips, 429 So.2d 386 (Fla. 1st DCA 1983), we held that a claimant's disabling psychiatric impairment which was precipitated by an employment-related robbery was compensable. There the non-disabling physical trauma, a gun placed to claimant's head and a ring physically removed from her finger, were held to be sufficient circumstances in the causal etiology of claimant's mental injury. The claimant in Prahl was held entitled to workers' compensation. If appellants Schwartz or Esses had, for example, suffered disabling psychiatric impairment, as in Prahl, supra, they would have been entitled to workers' compensation.

Appellants argue that because Schwartz and Esses suffered no medical expenses or disability as a result of Adams' acts, they have no relief available under the Workers' Compensation Law and are free to pursue their common law remedies for damages against Zippy Mart. Appellants would be free to pursue common law remedies for injuries not encompassed within the act. See Williams v. Hillsborough County School Board, 389 So.2d 1218 (Fla. 1st DCA 1980). However, if the injury is one encompassed within the act, as here, the fact that their injuries are not compensable ones does not destroy the immunity provisions of the act. It is not a prerequisite to an injury being within the purview of the act that it actually results in compensable disability or medical expenses. In Grice v. Suwannee Lumber Manufacturing Company, 113 So.2d 742 (Fla. 1st DCA 1959), our court, speaking through Chief Judge Wigginton, stated:

Every accidental injury suffered by an employee which arises out of and in the course of his employment is within the scope of the Act if it is of such character that it results, or might have resulted, in a loss or diminution of earning capacity, either temporary or permanent, or for which the employer is obligated to furnish medical or other benefits. The fact that in a particular case the injury suffered does not in fact result in a loss or diminution of earning capacity is immaterial. By accepting the benefits of the Act with the concomitant right to compensation and medical expenses irrespective of whether the employer is at fault, the employee relinquishes his common law rights to compensation for those elements of damages that normally flow from the injury but, having no relationship to earning capacity, are not compensable under the Act.

The Workers' Compensation Act affords the exclusive remedy for recovery of damages arising from compensable, or potentially compensable injuries falling within its purview. See Grice, supra, and Section 440.11, Florida Statutes (1979), which provides:

440.11 Exclusiveness of liability.--

(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer ... to the employee.... (emphasis supplied)

As basis for their complaint against Zippy Mart, appellants allege that Adams was acting within the scope of his employment. Nothing in the record except this bare allegation, which was denied, supports this.

For Adams' conduct to have been within the scope of his employment:

1. It must have been the kind he was...

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