344 So. 2d 247
Fla. Dist. Ct. App.
1976

Lead Opinion

SMITH, Judge.

Each appellant raises the pivotal question of whether it or they can be held liable for the parking lot shooting of an unruly bar patron of appellant Jax by an armed and uniformed guard, the employee of a security service operated by appellants Clark and Moore.

The firing of the pistol, viewed as an isolated event, was entirely unnecessary to any legitimate purpose of appellants and of the guard’s employment. However, both Jax and the security service operated by Clark and Moore were served by the guard’s armed presence in the bar. The confrontation began when the guard intervened, as he was expected to do, to prevent the patron from removing one of Jax’s drinking glasses from the bar. The altercation grew from that event with unbroken continuity. The wound was inflicted while both parties were still on Jax’s property. We conclude that the guard had not departed the scope of his employment when he shot the patron. Compare Columbia By the Sea, Inc. v. Petty, 157 So.2d 190 (Fla.App. 2nd, 1963); Sixty-Six, Inc. v. Finley, 224 So.2d 381 (Fla.App. 3rd, 1969). Contrast Reina v. Metropolitan Dade County, 285 So.2d 648 (Fla.App. 3rd, 1973), cert. disch. 304 So.2d 101 (Fla.1974).

There being evidence that Jax had and exercised a right of control concerning the manner in which the guard performed his duties, the jury could properly have found that the guard and appellants Clark and Moore were not independent contractors for whose tort Jax would be immune. See Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla.App. 1st, 1958). The same finding forecloses the crossclaim of Jax for indemnity against the guard service. Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla.App. 1st, 1963).

Each of appellants’ points has been reviewed and found unavailing. See Parker v. Maule Ind., Inc., 321 So.2d 106 (Fla.App. 1st, 1975).

Affirmed,

BOYER, C. J., and RAWLS, J., concur.



Concurrence Opinion

SMITH, Judge

(concurring):

I join in the court’s denial of appellants’ petitions for rehearing. Our disposition of those petitions has been delayed by lengthy reconsideration of the basic position advanced by Jax Liquors in this case, that it did not have and exercise a right to control the manner in which Williams, the guard, performed his duties. The court has been unable to agree upon an opinion on rehearing which elucidates further our decision as originally announced. However, I think it appropriate to express in terms of the evidence my own reasons, not approved by the other members of the court, for denying rehearing:

In contrast with the facts of Williams v. Wometco Ent., Inc., 287 So.2d 353 (Fla. 3d DCA 1974), cert. den., 294 So.2d 93 (Fla.1974), and Brien v. 18925 Collins Ave. Corp., 233 So.2d 847 (Fla. 3d DCA 1970), guard Williams was subject to the control of Jax not only in selecting “the result to be obtained” but also in respect to “the means to be employed.” Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla. 1st DCA 1958). See also Fruehauf Corp. v. Aetna Ins. Co., 336 So.2d 457 (Fla. 1st DCA 1976).

This is not a case in which a merchant simply hired a guard service to patrol his premises. Jax, in order to preserve order and deal with unruly patrons, sought and obtained armed, uniformed guards for its dozen establishments in the Jacksonville area. Jax, not Clark and Moore, was the source of instructions that guard Williams station himself inside the door of the lounge, which Jax’s supervisor characterized as the “hot zone,” that the guard disperse crowds from the door, that the guard “try to talk” with rowdy or intoxicated patrons, that the guard exclude minors and, most significantly for present purposes, that the guard prevent patrons from walking out of the bar with Jax’s glass tumblers. I am satisfied Jax did more than simply requisition law and order from a guard service, and that there was a jury issue whether Jax assumed important aspects of control over the means to be employed by the guard in accomplishing the desired result.





Rehearing

ON PETITIONS FOR REHEARING

PER CURIAM.

The petitions for rehearing are

DENIED.

BOYER, C. J., and RAWLS, J., concur.

SMITH, J., concurs with separate opinion.