
    Allen MASCONI, et al., Appellants, v. Alberto C. REGUEIRO, et al., Appellees.
    No. 3D00-1027.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2001.
    Roy D. Wasson; and Raul E. Garcia, Jr., Miami, for appellants.
    
      Richard B. Adams, Jr., and Joel V. Lu-mer, Miami, for appellees.
    Before SCHWARTZ, C.J., and SORONDO, and RAMIREZ, JJ.
   RAMIREZ, J.

Appellants Allen Masconi and Denise Masconi Krause appeal the entry of an adverse final summary judgment in a personal injury case filed against their landlord, Appellees Alberto C. Regueiro and Teresa V. Regueiro. Because we find that the Regueiros vicariously breached their duty of care owed to Masconi, we reverse.

The Regueiros authorized their tenant, Armando Sosa, to collect rent and maintain their property. On June 3, 1998, Allen Masconi went to Sosa’s unit to pay his rent. As they were speaking about a maintenance problem in Masconi’s unit, Sosa heard the smoke alarm sound off and smelled smoke. He asked Masconi to wait and proceeded into his kitchen where he found overheated cooking oil and the kitchen filled with smoke. Sosa grabbed the pot of oil and attempted to throw the oil outside. Masconi, while waiting for Sosa at the front door of Sosa’s unit, was doused with cooking oil.

Masconi sued the Regueiros alleging that they breached a duty of care owed to him by improperly instructing or directing him to pay rent to Sosa who did not have the skill, knowledge, or facilities available to carry out his duties; failing to install, monitor, and maintain smoke detectors in kitchen areas; and failing to inform or warn Masconi of a known dangerous condition. He also alleged that the Regueiros were vicariously liable for Sosa’s acts because Sosa was the Regueiros’ agent acting in the course and scope of his agency in the collection of rent and maintenance of the Regueiros’ property when Sosa doused Masconi with oil.

The trial court found that Sosa acted within the scope of his employment as the Regueiros’ agent, but that he stepped away from that duty when he went to retrieve the pot of oil. We disagree. As the Second District stated in Burroughs Corp. v. American Druggists’ Ins. Co., 450 So.2d 540 (Fla. 2d DCA 1984):

Concerning scope of employment, only where the facts are completely settled and the inferences to be drawn from the facts lead to but one conclusion can it be said that the issue is one which may' be decided by the court as a matter of law. Where there are varying inferences to be made and conclusions to be drawn, the matter is one which should be submitted to a jury.-

Id. at 544. In determining whether an agent’s action is within the scope of employment, factors to consider include: the type of work for which the employee is employed; whether the specific action is performed substantially within the time and space limits of the employment; whether the action was, to some degree, activated by a purpose to serve the master; whether the employee stepped aside from his/her employment to perform an act which the employer did not authorize or expect the employee to perform; whether there was a slight deviation or departure from the employment; and whether the employer could have expected or foreseen the employee’s conduct. See Burroughs Corp., supra, 450 So.2d at 544; see also Johnson v. Gulf Life Ins. Co., 429 So.2d 744 (Fla. 3d DCA 1983); Morrison Motor Co. v. Manheim Serv. Corp., 346 So.2d 102 (Fla. 2d DCA 1977). We cannot agree that, after reviewing these factors, a jury could not find that Sosa was acting within the scope of his agency.

When the Regueiros appointed Sosa as their tenant/agent, they authorized Sosa to act for them while residing on the premises. Sosa was thus allowed to cook in his unit and the Regueiros could have foreseen Sosa’s use of the kitchen stove for cooking. There was no evidence presented that the Regueiros did not authorize or expect Sosa’s conduct. Sosa interrupted one task, collecting rent and discussing maintenance, to resolve a more urgent task, dousing a fire that could potentially destroy the Regueiros’ property. A jury could very well conclude that Sosa’s retrieval of the pot of oil was at least partially motivated by his intent to minimize damage to the Regueiros’ property. When Sosa doused Masconi, he did so within the time and space limits of his employment as Masconi visited Sosa to deliver his rental payment and discuss maintenance. Thus, the trier of fact could find that Sosa acted within the scope of his employment when Masconi’s injuries occurred and did not step away or abandon the Regueiros’ business.

For these reasons, we reverse the final summary judgment entered in favor of the Regueiros.

SORONDO, J., concurs.

SCHWARTZ, Chief Judge

(specially concurring).

While I regard the issue as very close, I concur in reversal on the ground assigned by the court: that a jury could find that Sosa’s negligence in hurling the burning oil served the interest of his employer by preventing damage to his property and was thus itself within the scope of his employment. I believe, however, that the decision should also be based upon an additional ground which I think is actually stronger. 30 C.J.S. Employer-Employee § 221 (1992) states:

Where ... the act complained of is not so separated by time and logical sequence from the business of the master as to make it a separate and independent transaction, the master is not relieved of liability.... [A]n employee while at work for his employer may do those things which are necessary to his own health and comfort, even though they are personal to himself, and such acts will be considered incidental to his employment, (e.s.)

As reflected by several similar cases which so hold, I believe this rule directly applies to Sosa’s conduct, even if it is separately viewed as serving only his own interest in self-preservation. See Adams v. American President Lines, 23 Cal.2d 681, 146 P.2d 1 (1944) (where seaman required to sleep or otherwise remain on vessel, necessary incidents of life such as eating are within scope of employment); Interstate Co. v. McDaniel, 178 Miss. 276, 173 So. 165 (1937) (where injurious act of employee in assaulting a customer consumes only a few moments and constitutes one continuous occurrence employer is not relieved of liability because employee stepped outside of authority); Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 528, 66 S.W.2d 903, 907 (1933) (“Cessation of work for eating, drinking, and other like necessities ... does not sever [the employee’s] relation from his work .... ”); see also Schaeffer v. Duvall, 421 So.2d 262, 265 (La.App.1982) (“If the [employee’s] conduct is closely related in time, place and causation to his employment duties, the resultant harm is attributable to the employer’s business .... ”), writ denied, 427 So.2d 1209 (La.1983). See generally Martin v. Cavalier Hotel Corp., 48 F.3d 1343 (4th Cir.1995), and cases and authorities cited.  