Winn Dixie Stores, Inc. v. Parks

• Decision Date: 23 June 1993
• Docket Number: No. 92-3426,92-3426
• Citation: 620 So.2d 798
• Parties: 18 Fla. L. Weekly D1488 WINN DIXIE STORES, INC., a Florida corporation, Appellant, v. Bernard F. PARKS and A. Gayle Parks Gunn, as Personal Representatives of the Estate of Jerome F. Parks, Deceased, Appellees.
• Court: Florida District Court of Appeals

Page 798

620 So.2d 798

18 Fla. L. Weekly D1488

WINN DIXIE STORES, INC., a Florida corporation, Appellant, v. Bernard F. PARKS and A. Gayle Parks Gunn, as Personal Representatives of the Estate of Jerome F. Parks Deceased, Appellees.

No. 92-3426.

District Court of Appeal of Florida,

Fourth District.

June 23, 1993.

Richard N. Blank of Richard N. Blank, P.A., Fort Lauderdale, for appellant.

Edward A. Perse of Perse, P.A. & Ginsberg, P.A., and J. James Donnellan III, Miami, for appellees.

STONE, Judge.

We reverse an order denying Appellant's motion for summary judgment. That order determined that Winn Dixie is not entitled to worker's compensation immunity as a matter of law in this action for the wrongful death of its employee. Winn Dixie claims immunity under chapter 440, Florida Statutes. ¹ The decedent, Jerome F. Parks, an assistant manager in one of Winn Dixie's retail supermarkets, was kidnapped while driving home after work. The assailant, employed by Winn Dixie at the same supermarket as the decedent until his transfer to another store, forced Parks to return and open the safe before stabbing him to death.

Parks' parents, as personal representatives of his estate, sued Winn Dixie for negligence in providing for their son's safety. They alleged that Winn Dixie negligently made no effort to prevent the assailant from learning about the handling of the store's money and about who had access to the store and the safe after hours. Appellees also assert that the murder was not "work-connected."

Winn Dixie reasons that if decedent's wrongful death is compensable by workers' compensation, then, as the employer, it is immune from tort suit under the exclusivity provision of the Florida Workers' Compensation Law, Fla.Stat. Sec. 440.11 (1991), absent an intentional tort on the employer's part. Pursuant to that provision, the sole remedy available against an employer for an injury to an employee generally is through the workers' compensation system.

A work-related assault is covered by workers' compensation. Cf. Sullivan v. Atlantic Fed. Sav. and Loan Ass'n, 454 So.2d 52 (Fla. 4th DCA1984), rev. denied, 461 So.2d 116 (Fla.1985); McDaniel v. Sheffield, 431 So.2d 230 (Fla. 1st DCA), rev. denied, 440 So.2d 352 (Fla.1983). In Sullivan, the plaintiff's wife, a bank manager, was killed while on duty by a robber who had robbed the bank on two prior occasions and had threatened to come back and kill her. This court found that the trial court had correctly granted the employer's motion for summary judgment. In McDaniel, an employee was shot while working at a gas station. The court determined that the sole remedy available to the dependents of the decedent was their workers' compensation claim and affirmed summary judgment in favor of defendants in a wrongful death action.

Winn Dixie principally relies on Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980). The issue in that case was whether the injury was covered by workers' compensation when the assault took place outside the time and space limits of the worker's employment. The employee, a cafeteria cashier, on two previous occasions had driven the manager to the bank with the day's receipts. At the end of her shift on the day of the incident, she drove directly home, where she was assaulted and her purse was stolen. The industrial claims judge ruled that the woman's injuries were compensable. The Industrial Relations Commission reversed and denied her claim because it found her injuries were not sustained "in the course of " her employment. The Florida Supreme Court then quashed the commission's order and reinstated the order of the industrial claims judge.

The court discussed its earlier decision, Bituminous Casualty Corp. v. Richardson, 148 Fla. 323, 4 So.2d 378 (1941), in which it set up a two-prong test, requiring that a work related injury must both (1) arise out of and (2) occur in the course of employment. If the origin or cause of the accident was the employment, then it arose out of the employment; if...