              Case: 15-15109     Date Filed: 06/13/2016    Page: 1 of 4


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-15109
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:14-cv-22708-RLR


MANUEL MORERA,
as Personal Representative of the Estate of Maria Josefa Morera,

                                                                  Plaintiff-Appellant,
                                       versus

SEARS ROEBUCK AND CO.,

                                                                Defendant-Appellee.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (June 13, 2016)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Manuel Morera, as the personal representative of Maria Morera, appeals the

summary judgment against his complaint that Sears Roebuck and Company was

vicariously liable for the wrongful death of his mother, see Fla. Stat. § 768.16 et
               Case: 15-15109     Date Filed: 06/13/2016    Page: 2 of 4


seq. Luis Antonio Valdivia, a Sears employee, drove his personal vehicle to a bank

during his morning break, failed to put the vehicle in park before climbing out, and

hit Ms. Morera when, in attempting to stop the vehicle, he pressed the accelerator

instead of the brake. The district court ruled that Sears was not vicariously liable

for Valdivia’s conduct because it occurred outside the scope of his employment.

We affirm.

      Sears employed Valdivia as an assistant manager at its auto center in

Hialeah, Florida. Valdivia’s salaried position entailed “managing the Auto Center

and Associates” to “ensure[] consistent, timely and accurate service delivery to

customers.” On December 18, 2012, Valdivia arrived at the auto center earlier than

usual, about ten minutes after 6:00 a.m., to help admit a crew to clean the store

before it opened for customers around 8:00 a.m.

      Around 7:20 a.m., Valdivia took a morning break and drove approximately

one-half a mile to a bakery to purchase breakfast. He drove to the parking lot of a

bank and ate his breakfast while listening to the radio. Valdivia failed to shift the

transmission to park, and when he climbed out of his vehicle, it began to roll

forward. Valdivia returned to his vehicle, but pressed the gas pedal inadvertently

and struck Ms. Morera.

      We review a summary judgment de novo. Williams v. Obstfeld, 314 F.3d

1270, 1275 (11th Cir. 2002). Summary judgment is appropriate when “there is no


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genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

      Under Florida law, which the parties agree applies, “[a]n employer may be

vicariously liable to third parties under the principle of respondeat superior for

damages and injuries caused by its employee’s negligent acts which are committed

within the scope and course of his employment.” Bennett v. Godfather’s Pizza,

Inc., 570 So. 2d 1351, 1353–54 (Fla. Dist. Ct. App. 1990). An employee acts

“within the scope of his employment . . . only if (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 v.

Fla. E. Coast Props., Inc., 557 So. 2d 74, 75–76 (Fla. Dist. Ct. App. 1990). “[F]or

an employer to be vicariously liable . . ., the employee’s conduct must in some way

further the interests of the employer or be motivated by those interests.” Bennett,

570 So. 2d at 1354.

      The district court did not err by entering summary judgment in favor of

Sears. Sears was not vicariously liable for Valdivia’s conduct because it was not

“something [his] employment contemplated.” See Weiss v. Jacobson, 62 So. 2d

904, 906 (Fla. 1953). As the district court stated, “[t]he act of eating breakfast and

listening to the radio in his personal vehicle while on a personal break


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approximately one-half mile away from the Auto Center was not the kind of

conduct Mr. Valdivia was hired to perform as Auto Center Assistant Manager, did

not occur within the time and space limits authorized or required by the work to be

performed and was not activated by a purpose to serve [Sears].” Similar to the spa

employee in Sussman who was acting outside the scope of her employment when

she struck a pedestrian after deviating five blocks from her normal route to work to

purchase a birthday cake at her manager’s request, 557 So. 2d at 76, Valdivia’s

accident occurred during a personal break. Morera argues that Sears is liable

because Valdivia was “on call at all times . . . during business hours,” but

Valdivia’s accessibility did not place the accident within the scope of his

employment. Valdivia’s supervisor, Jesus Santos, testified, without dispute, that if

contacted about an emergency at the auto center, Valdivia would finish “whatever

he was doing . . . [before] go[ing] back [to] take care of the customer.” Santos

testified that when managers and assistant managers are at lunch or on a break,

they are “on [their] own time” and “[t]he customer has to wait.” Because Valdivia

hit Ms. Morera while acting outside the scope of his employment, Sears was not

legally responsible for the tragic mishap.

      We AFFIRM the summary judgment in favor of Sears.




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