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Unformatted text preview: regulations.
Apparently, the test reported to CF MotorFreight was not a drug test completed pursuant
to D.O.T. regulations. Due to the positive drug test, CF MotorFreight refused to hire
Tracz. In his complaint against Wal-Mart, Tracz alleged that Wal-Mart's actions were
negligent per se or, in the alternative, prima facie evidence of negligence.
Tracz later moved for summary judgment on the issue of liability, contending that WalMart had violated the federal regulations which only allow Wal-Mart to release drug test
information that is authorized by the employee. Plaintiff's counsel submitted that Tracz
had only authorized the release of D.O.T.- compliant tests. Wal-Mart disagreed and made
this pertinent point:
I would command [sic] Your Honor's attention to the authorization. It is signed by the
Plaintiff and attached to the complaint. There is nothing in the authorization that supports
the very strict interpretation advanced by [plaintiff's counsel] as to the limitations on the
scope of the authority given by the employee.
The trial court agreed with Tracz and entered partial summary judgment in Tracz's favor;
from this order Wal-Mart timely appealed.
The party moving for summary judgment has the burden to prove conclusively the
nonexistence of any genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43
(Fla.1966). "If the evidence raises any issue of material fact, if it is conflicting, if it will
permit different reasonable inferences, or if it tends to prove the issues, it should be
submitted to the jury as a question of fact to be determined by it." Id. at 43. The trial
court may not determine factual issues or consider either the weight of the conflicting
evidence or the credibility of witnesses in determining whether a genuine issue of
material fact exists in a summary judgment proceeding. Security First Federal Savings &
Loan Assoc., v. Broom, Cantrell, Moody & Johnson, 560 So.2d 304, 307 (Fla. 1st DCA
1990), disapproved on other grounds, Garden v. Frier, 602 So.2d 1273, 1277 n. 10
 Summary judgment proce...
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- Spring '08