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Nicholas Trabulsy v. Publix Super Market, Inc., et al., Case No. 5D12-4667 (5th DCA)

In Trabulsy, summary judgment was entered in favor of the defense in a case by a plaintiff who was allegedly battered by an employee of Publix while the plaintiff was shopping at Publix. “An employer’s liability for an employee’s intentional acts may arise when the acts are within the real or apparent scope of employment.” “Conduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master. The purpose of the employee’s act, rather than the method of performance thereof, is said to be the important consideration.” In other words, if an employee steps aside from his employment to accomplish some purpose of his own, he is not acting within the scope of employment.

It was undisputed that the altercation occurred on Publix’s premises while the employee was engaged in Publix’s business. Therefore, the case turned on whether the employee’s purpose was to serve Publix. The employee testified in deposition that the encounter was motivated by a purpose to serve his employer. Publix asserted, nevertheless, that the employee’s motive for pushing the plaintiff was personal – self-defense from an attack by the plaintiff. The court noted that an employer has an interest in protecting its employees from attack, at least to the same extent as it has in protecting its merchandise and property. The court further noted that several courts have held that battery by an employee in protecting the employer’s property is within the scope of employment. In this case, it was the business of the employer that put the employee in harm’s way. Accordingly, the court reversed the summary judgment.


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