George Dukas is a delivery man for Poquito Banana Company. He is also a big jokester. One day, while delivering bananas to the Shoppers Food Mart in Hialeah, Florida, he decides to play a trick on Carol Lombardi, a customer walking through the parking lot. Ms. Lombardi is 7 months pregnant. While sitting in the Poquito Banana truck, George takes out a toy gun, points it at Ms. Lombardi and says, “Stick up your hands and give me your money.” Ms. Lombardi does not realize it is a toy gun. She is so frightened she passes out, hurts her back, and goes into premature labor. She is confined to bed rest for the rest of her pregnancy but the baby is born healthy. Ms. Lombardi has many emotional problems from this incident and her back will need numerous surgeries. Ms. Lombardi files suit against George Dukas, Poquito Banana Company, and Shoppers Food Mart.

You work for the law firm representing Poquito Banana Company. Your boss tells you to file a motion for summary judgment showing that there are no facts at issue for a jury to decide in that at the time of the incident, the delivery man was not within the scope of his employment, and his act was criminal rather than negligent, thus the company could not, as a matter of law, be liable under a respondeat superior theory.

Click here to visit a Web site that provides information about the FRCP Rule 56, which deals with summary judgment. You can use the following case law on point to begin your research to support your claims and defenses:

Iglesia Cristiana La Casa Del Señor, Inc. v. L.M., 783 So. 2d. 353 (Fla.App. 3 Dist.,2001)