04-0357 FERNANDEZ V. FL NATL COLLEGE

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State: Florida

Court: Florida Southern District Court

Docket No: 3d04-0357

Case Date: 03/29/2006

Plaintiff: 04-0357 FERNANDEZ

Defendant: FL NATL COLLEGE

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, 2006

BARBARO FERNANDEZ, etc., et al., ** Appellants, vs. FLORIDA NATIONAL COLLEGE, INC., et al., Appellees. ** ** ** ** ** LOWER TRIBUNAL NO. 00-2722 CASE NO. 3D04-357

Opinion filed March 29, 2006. An Appeal from the Circuit Court for Miami-Dade County, Michael B. Chavies, Judge. Lauri Waldman Ross; and Friedman & Friedman and John S. Seligman, for appellants. Kubicki Draper and Caryn L. Bellus, for appellee Florida National College, Inc.

Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ. ON MOTION FOR REHEARING AND REQUEST TO ISSUE WRITTEN OPINION ROTHENBERG, J. We grant the appellants' request to issue written opinion,

withdraw our per curiam affirmance filed on September 14, 2005, and substitute the following in its place. Based upon the

substitution of a written opinion, we make no ruling as to the appellants' motion for rehearing. The from an plaintiffs, order Barbaro Fernandez, summary etc., et al., in appeal of

granting

final

judgment

favor

defendant Florida National College, Inc. ("FNC"). The plaintiffs filed a Second

We affirm. Complaint

Amended

("Complaint") against Jorge Luis Cisneros ("Mr. Cisneros"), FNC, and others. The Complaint alleges that on August 13, 1999, Mr.

Cisneros was negligently operating a motor vehicle when it was involved in an accident, and that as a result of the accident, Iris Yadira Fernandez ("Mrs. Fernandez") was injured and her daughter, Complaint Cisneros accident, function" Claudia further was he and Lorena alleges by a Fernandez that, FNC, at and ("Claudia"), all that material at the died. times, time of The Mr. the

employed "was was on

college "in

and/or

quasi-college and scope

related of his

acting

the

course

employment" with FNC. FNC answered the Complaint, denying all material

allegations.

FNC further asserted that it was not responsible

for Mr. Cisneros' actions because, at the time of the accident, Mr. Cisneros, who was on an excursion with Mrs. Fernandez,

Claudia, and others, was not acting within the course and scope

2

of his employment with FNC. FNC moved for summary judgment, arguing that the excursion had no educational purpose; FNC did not authorize the trip; and the term had ended the day before the accident occurred. In

opposing the motion for summary judgment, the plaintiffs argued, in part, that there were issues of material fact as to whether Mr. Cisneros was FNC's actual or apparent agent. At the summary

judgment hearing, although FNC's counsel stated that apparent agency was not pled in the Complaint, he addressed this theory. The trial court granted FNC's motion for summary judgment, and this timely appeal followed. In ruling on a motion for summary judgment, the trial court "must view the evidence and draw all inferences in favor of the opposing party." Falco v. Copeland, 31 Fla. L. Weekly D313

(Fla. 1st DCA Jan. 26, 2006); see also Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000)("The standard of review of a summary

judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party."). In

addition, a trial court is permitted to grant summary judgment only "if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Hallock v. Holiday Isle Resort & Marina, Inc., 885 So. 2d 459, 463 (Fla. 3d DCA 2004). A review of the record indicates that it is undisputed that

3

FNC is a two-year college, with its main campus located in a shopping plaza in Hialeah. One of the classes that FNC offers During

is English for Speakers of Other Languages ("ESOL").

orientation, FNC informs its ESOL students that they will be required to attend field trips so that they can learn and speak English outside of the classroom setting. During the deposition of Mr. Cisneros, he testified as to the procedure he was required to follow in order to take

students on field trips sponsored by FNC. is not contradicted by any other

His testimony, which of the record,

portion

demonstrates that prior to any field trip, he was required to submit a field trip authorization form to FNC, and that after approval is granted, each student was then required to submit a signed form releasing FNC from liability. Moreover, Mr.

Cisneros testified that field trips can only take place during the scheduled class period; a student's participation in the field trip would affect his/her grade; and prior to any field trip, he would contact the selected destination so that he could ensure that someone who speaks English would be present to

attend to his students.

Moreover, each student was required to

pay the costs associated with the field trip and provide their own transportation. Following the field trip, he would discuss

in class what they had learned during the field trip. The undisputed facts also show that Mrs. Fernandez enrolled

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in FNC's ESOL class for the term beginning in January 1999, and ending on Thursday, August 12, 1999. This particular class met

four times a week, Monday through Thursday, from 8:30 a.m. to 1:00 p.m, and was taught by Mr. Cisneros. About a week before

the term ended, Mr. Cisneros announced in class that there would be a trip to a beach in Key West on Friday, August 13, 1999; the fare for the trip was $15; the students could bring their

friends and family members; and the trip would begin and end at the parking lot at the FNC campus. It is also undisputed that

the students paid Mr. Cisneros during a scheduled class period; only approximately ten of the seventeen to nineteen students participated in the excursion to Key West; Mr. Cisneros did not inform FNC of the trip; he did not ask the students to sign a release form; and the excursion did not affect the students' grades as Mr. Cisneros had turned in his grades on August 12, 1999. It is also undisputed that on the morning of Friday, August 13, 1999, Mr. Cisneros, Mr. Maximo Suarez, who is another FNC teacher, and Javier Aragon, who is a student at FNC, went to Thrifty Rent-A-Car, where Mr. Cisneros rented two vans using his personal credit card. One van was driven by Mr. Cisneros, and

the second van was driven by Mr. Aragon because Mr. Suarez had forgotten his driver's license. The vans left the FNC parking

lot between 7:00 and 7:30 a.m., with Mrs. Fernandez and Claudia

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riding in the van driven by Mr. Cisneros.

While attempting to

pass a pickup truck, Mr. Cisneros lost control of the van, and the van rolled over. Mrs. Fernandez sustained injuries and

Claudia died when she was ejected from the van. The plaintiffs contend that the trial court erred by

granting final summary judgment in favor of FNC.

As we conclude

that, based upon the record before this court, the plaintiffs cannot establish an agency relationship between Mr. Cisneros and FNC, we affirm the summary judgment entered in favor of FNC. In opposing the motion for summary judgment, the plaintiffs argued that there were genuine issues of material fact as to whether, at the time of the accident, Mr. Cisneros was either FNC's actual agent or apparent agent, or whether Mr. Cisneros was acting within the course and scope of his employment.

Although the existence of an agency relationship is usually a question of fact that must be resolved by the trier of fact, when a party bearing the burden of proof on an issue, fails to produce any supportive evidence, or when . . . all of the evidence presented by both parties is so unequivocal that reasonable persons could reach but one conclusion, a question that is ordinarily one of fact becomes a question of law, to be determined by the court. Gillet v. Watchtower Bible & Tract Soc'y of Pennsylvania, Inc., 913 So. 2d 618 (Fla. 3d DCA 2005)(quoting Eberhardy v. Gen. Motors Corp., 404 F. Supp. 826, 830 (M.D. Fla. 1975)); see also

6

Jaar

v.

Univ.

of

Miami,

474

So.

2d

239,

242

(Fla.

3d

DCA

1985)("The existence and scope of an agency relationship are generally questions of fact to be resolved by the factfinder, unless the evidence is susceptible of only whether one an

interpretation.")(citations

omitted).

Moreover,

employee is acting within the course and scope of his employment is also a question of law when there are no factual disputes. See Sussman v. Fla. E. Coast Props., Inc., 557 So. 2d 74, 76 (Fla. 3d DCA 1990). First, we will address whether, at the time of the

accident, Mr. Cisneros was acting within the course and scope of his employment with FNC. For the plaintiffs to establish that

Mr. Cisneros' conduct was within the course and scope of his employment with FNC, the plaintiffs must establish that: "(1)

the conduct is of the kind the employee is hired to perform, (2) the conduct occurs substantially within the time and space

limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part by a purpose to serve the master." Sussman, 557 So. 2d at 75-76; see also

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