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VIII.C. Outside the Scope of Employment? - Intentional Torts
  • 1 Kuehn v. Inter-city Freight--"The Road Rage Case"

    How should courts distinguish between employee's personal outbursts and their work on behalf of the company?

    1
    24 Wn. App. 274 (1979)
    2
    600 P.2d 679
    3
    ELZEAR J. KUEHN, ET AL, Appellants,
    v.
    RICHARD K. WHITE, ET AL, Defendants, INTER-CITY AUTO FREIGHT, INC., Respondent.
    4
    No. 6801-1.
    5

    The Court of Appeals of Washington, Division One.

    6
    September 17, 1979.
    7

    Kennedy, Moore & Twisselman and James D. Twisselman, for appellants.

    8

    Lane, Powell, Moss & Miller and C. William Bailey, for respondent.

    9

    CALLOW, C.J.

    10

    The issue presented is whether the Washington rule which holds that an employer is not liable for an assault committed by an employee for his own purposes should be abandoned in favor of a rule which would impose liability on an employer when the employee injures a third party in a dispute arising out of the employment.

    11

    The facts are agreed upon by the parties. On July 23, 1976, Elzear Kuehn was driving his wife's automobile southbound on Interstate 5. At approximately 6:30 p.m., the Kuehns were a short distance south of Seattle, in the traffic lane next to the outside lane. As the Kuehns' automobile proceeded down a hill, a truck tractor-semitrailer combination in the outside lane started to pass them. The truck was owned by Inter-City Auto Freight, Inc., and 276*276 operated by Richard K. White. When the trailer of the combination pulled even with the Kuehns' automobile, the rig swerved left into the Kuehns' traffic lane. Mrs. Kuehn screamed, "He's going to crash us. He's going to crash us." Mr. Kuehn applied his brakes and drove into the lane to his left.

    12

    Thereafter, Mr. Kuehn stepped on the gas, caught up with the truck, and motioned to White to pull over onto the shoulder of the highway. White shook a fist in the direction of the Kuehns' automobile and weaved towards the Kuehns, forcing them over into the third lane. Mr. Kuehn again accelerated to catch up with the truck. White, followed by the Kuehns, drove onto the right-hand shoulder of the road. White crammed on the brakes of the truck and Kuehn had to brake hard to keep from driving into the rear of the truck. When the truck stopped, Kuehn parked behind it so that both he and Mrs. Kuehn could see the driver's door of the truck.

    13

    White got out of the cab of the truck and walked towards Kuehn's car carrying a 2-foot-long metal pipe owned by Inter-City. Mr. Kuehn got out of his car and asked White why he was carrying the pipe. White replied, "That's my equalizer." Mr. Kuehn asked White why he had attempted to force the Kuehns' automobile off of the road, to which White replied, "There is no son of a bitch going to give me the finger." White then swung the pipe at Kuehn's head, grazing the side of his face and knocking off Kuehn's glasses. As Kuehn bent over to pick up his glasses White hit him on the side of the head with the pipe, knocking Kuehn to his hands and knees, and when Kuehn tried to get up White hit him again on the head.

    14

    Mrs. Kuehn got out of the automobile and asked White, "What are you trying to do? Kill him?" White replied, "There's no son of a bitch going to give me the finger." White then got back into the truck and drove off, and Mrs. Kuehn took Mr. Kuehn to a hospital. Before this incident, White's record with his employer, Inter-City, had been good.

    15

    277*277 Later, White was convicted of assault. Mr. and Mrs. Kuehn then filed a civil action against White and Inter-City Auto Freight, Inc. Inter-City's subsequent motion for summary judgment of dismissal was granted. The Kuehns appeal.

    16

    [1] A master is responsible for the servant's acts under the doctrine of respondeat superior when the servant acts within the scope of his or her employment and in furtherance of the master's business. Where a servant steps aside from the master's business in order to effect some purpose of his own, the master is not liable. Kyreacos v. Smith, 89 Wn.2d 425, 429, 572 P.2d 723 (1977) (murder); Hein v. Chrysler Corp., 45 Wn.2d 586, 599, 277 P.2d 708 (1954) (interference with contract); Langness v. Ketonen, 42 Wn.2d 394, 399, 255 P.2d 551 (1953); Westerland v. Argonaut Grill, 185 Wash. 411, 414-15, 55 P.2d 819 (1936); Nolan v. Fisher Co., 172 Wash. 267, 269, 19 P.2d 937 (1933); Estes v. Brewster Cigar Co., 156 Wash. 465, 473, 287 P. 36 (1930); De Leon v. Doyhof Fish Prods. Co., 104 Wash. 337, 343, 176 P. 355 (1918); Matsuda v. Hammond, 77 Wash. 120, 123, 137 P. 328 (1913). As stated in Hein v. Chrysler Corp., supra at page 600:

    17
    An employee who willfully and for his own purposes violates the property rights of another ... is not acting in the furtherance of his employer's business. Consequently, his employer cannot be held liable under the doctrine of respondeat superior for the employee's wrongful act. The same rule should apply to any tort, regardless of its nature.
    18

    See also Annot., 34 A.L.R.2d 372 (1954); F. Harper & F. James, Law of Torts § 26.9 (1956); W. Prosser, Law of Torts § 70 (4th ed. 1971); W. Seavey, Handbook of the Law of Agency § 89C (1964).

    19

    If the assault by the servant is occasioned solely by reason of the servant's ill will, jealousy, hatred, or other ill feelings, independent of the servant's duty, then the master is not liable. E.g., Linck v. Matheson, 63 Wash. 593, 596, 116 P. 282 (1911). To fall within the scope of employment, 278*278 the assault must be committed by authority of the employer, such authority being either expressly conferred or fairly implied from the nature of the employment and the duties incidental thereto as where the servant is authorized to maintain discipline or the character of the employment is liable to create disputes and result in breaches of the peace. An abuse or excessive exercise of the servant's authority in such situations does not relieve the master of liability. Langness v. Ketonen, supra at 399-400; Brazier v. Betts, 8 Wn.2d 549, 556-60, 113 P.2d 34 (1941).

    20

    Where the servant's intentionally tortious or criminal acts are not performed in furtherance of the master's business, the master will not be held liable as a matter of law even though the employment situation provided the opportunity for the servant's wrongful acts or the means for carrying them out. In Kyreacos v. Smith, supra, a Seattle police detective killed a man whom he suspected of murdering a complaining witness in a case in which the detective had arrested the decedent for a credit card forgery. The detective's conviction of first-degree murder was affirmed on appeal in State v. Smith, 85 Wn.2d 840, 540 P.2d 424 (1975). In the subsequent wrongful death action brought by the decedent's widow, it was held that the City of Seattle was not liable under the doctrine of respondeat superior as a matter of law and that summary judgment was appropriate. The court stated that "if a servant steps aside from his master's business and, in order to effect some purpose of his own, commits an assault, the master is not liable." Kyreacos v. Smith, supra at 429. The court reasoned that the commission of premeditated murder by a policeman precluded any possibility that he was acting within the scope of his employment.

    21

    Recovery against the master has uniformly been denied in those instances where a servant-truck driver and the plaintiff collided, an altercation followed, and the driver lost his temper and struck the plaintiff. F. Harper & F. James, supra § 26.9, at 1392 n. 16; W. Prosser, supra § 70, 279*279 at 464. Accord, Restatement (Second) of Agency § 245, comment f, illustration 8 (1958).

    22

    The plaintiffs urge an abandonment of these enunciated principles of respondeat superior. In their stead, the plaintiffs would have us embrace the rule adopted in California. Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684, 172 A.L.R. 525 (1947); Pritchard v. Gilbert, 107 Cal. App.2d 1, 236 P.2d 412 (1951). In those cases involving a servant's intentional assault, the California rule extends a master's liability to include risks inherent in or created by the enterprise for the reason that the master is thought to be best able to assume and spread the risk. A risk may be said to inhere in or be created by a business when "an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business," or it is typical of the employer's business. Rodgers v. Kemper Constr. Co., 50 Cal. App.3d 608, 124 Cal. Rptr. 143, 148-49 (1975). The risks of an employer's enterprise include those faults of human nature which may surface when a servant has contact with a third party. Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5, 7-8 (1946).[1] We note that the California rule is based in large part upon section 2338 of the California Civil Code, which makes a principal liable for the wrongful acts of the agent committed in and as a part of the principal's business. We 280*280 find no comparable statutory directive in Washington and decline to impose a rule, the ramifications of which would be far-reaching and which would rearrange, across the state, the responsibility of employers for the conduct of their employees. Such a redirection of social policy is, more appropriately, the function of the legislature.[2]

    23

    [2] A party is entitled to summary judgment when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963). Considering all of the evidence submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party, we must determine if reasonable people might reach different conclusions from the evidence and inferences therefrom. If so, summary judgment must be denied. CR 56(c); Jacobsen v. State, 89 Wn.2d 104, 108-09, 569 P.2d 1152 (1977). Whether a tortious act was one performed within the scope of the servant's employment for which the master would consequently be held liable is a determination which necessarily depends upon the particular circumstances and facts of the case. This question is ordinarily one for the trier of 281*281 fact, although certain fact patterns may establish as a matter of law that the master is not liable. See Kyreacos v. Smith, supra; Restatement (Second) of Agency § 228, comment d (1958).

    24

    Here, as a result of White's driving, the Kuehns attempted to catch up with White's truck. Both then drove off the road. White then assaulted Kuehn because of his personal anger towards Kuehn and not because of any intent to serve the employer.

    25

    The judgment is affirmed.

    26

    FARRIS and RINGOLD, JJ., concur.

    28

    [1] As stated in Fields v. Sanders, 29 Cal.2d 834, 839, 180 P.2d 684, 172 A.L.R. 525 (1947), quoting from Andrews v. Seidner, 49 Cal. App.2d 427, 121 P.2d 863, 864 (1942):

    29

    "Responsibility of the principal results from acts so committed even though they be contrary to the principal's explicit instructions or otherwise unauthorized, or malicious or wilful. In considering whether an unauthorized wrongful act of an agent is attributable to his principal, we cannot look to the nature of such act alone to see whether it was committed in and as part of the transaction of the principal's business, but we must consider as well the activity of the agent on behalf of the principal in connection with which the act was committed. The inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal. Of course, where the agent, for however brief a space of time, has ceased to serve his principal, he alone is responsible for his acts during the period of such cessation...."

    31

    [2] See Ira S. Bushey & Sons, Inc. v. United States, 276 F. Supp. 518 (E.D.N.Y. 1967), aff'd, 398 F.2d 167 (2d Cir.1968). In Sandman v. Hagan, 261 Iowa 560, 154 N.W.2d 113 (1967), at page 569, we find:

    32

    We are aware of the so-called modern trend to find liability in this class of cases on the basis that such wrongs are committed by the employee only because of the employment situation, and that since the employer has the benefit of the enterprise as between two innocent third parties, he is better able to bear the risk of loss. If he cannot altogether avoid such wrongs, he can at least minimize them. In those cases it is argued that a general sense of fairness requires that the employer, as the person interested and benefited by the business, rather that the persons who have no concern in or control over it, should bear the burden of such wrongs as incidental to such business. See Penas v. Chicago, M. & St. P. Ry. Co., 112 Minn. 203, 127 N.W. 926 ...; Harper, Torts, section 291, page 640; 45 Harvard Law Review 342. If employer liability is to be extended this far, we believe it should come from the legislature, and do not find that this concept has substantial support in judicial decisions.

  • 2 Sage Club v. Hunt--"The Violent Bartender"

    Can certain jobs or duties create a scope of employment that encompasses intentional torts?

    1
    638 P.2d 161 (1981)
    2
    The SAGE CLUB, Appellant (Defendant),
    v.
    David Leland HUNT, Appellee (Plaintiff).
    3
    No. 5532.
    4

    Supreme Court of Wyoming.

    5
    December 31, 1981.
    6

    162*162 Claude W. Martin of Brown, Drew, Apostolos, Massey & Sullivan, Casper, on behalf of appellant.

    7

    James R. McCarty, Casper, on behalf of appellee.

    8

    Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

    9

    BROWN, Justice.

    10

    Appellant, The Sage Club, appeals a judgment entered against it in a lawsuit arising out of an altercation between a bartender employed at the club, Mr. Thyfault, and a customer, appellee David Leland Hunt. The trial court entered a default judgment against Mr. Thyfault and held The Sage Club liable under the theories of respondeat superior and negligence in continuing to employ Mr. Thyfault. Appellant asserts that it cannot be held liable for the intentional tort of its employee because the tort was personal to Mr. Thyfault and was not within the scope of employment.

    11

    We affirm.

    13
    I
    14

    A dispute took place over money which appellee had left on the bar. Appellee thought that someone, supposedly Thyfault, had taken more money than he was entitled to take for his drinks. Mr. Thyfault undoubtedly resented the insinuation, so he jumped over the bar and attacked appellee. Thyfault hit appellee in the face, breaking his nose and inflicting other bruises, and then threw appellee down the stairs, reinjuring his back.

    15

    This court has held that an employer may be held liable for the negligent acts of an employee acting within the scope of employment, Gill v. Schaap, Wyo., 601 P.2d 545 (1979); Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979); Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034 (1978); and Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189 (1933). We have not, however, had occasion to rule on whether an employer may be held responsible for the intentional tort of an employee. The majority rule, in fact the universally accepted rule, holds employers liable for the intentional torts of employees committed within the scope of employment. Prosser, Law of Torts, § 70, p. 464 (4th ed., 1971). The rule is a matter of economic and social policy, based both on the fact that the employer has the right to control the employee's actions and that the employer can best bear the loss as a cost of doing business. The Restatement (Second), Agency 2d § 245, p. 537 (1958), phrases the rule as:

    16
    "A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant's employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant."
    17

    We agree with the accepted rule and hold that an employer may be held liable for the intentional tort of an employee if the employee is acting within the scope of employment.

    18

    Appellant here contends that Mr. Thyfault was not acting within the scope of employment because the altercation which took place was a personal one between Thyfault and appellee. The question of whether an employee is acting within the scope of employment is one for the trier of fact, in this case the trial court, and becomes a question of law when only one reasonable inference can be drawn about the question from the evidence. Miller v. Reiman-Wuerth 163*163 Co., supra, at 23. We think the evidence here was sufficient to show that Thyfault was acting within the scope of employment when he attacked appellee. We said in Combined Insurance Co. of America v. Sinclair, supra, at 1041, that in general the servant's conduct is within the scope of his employment, "if it is of the kind which he was employed to perform, occurs substantially within the authorized limit of time and space, and is actuated, at least in part, by a purpose to serve the master," citing Prosser, Law of Torts, supra, p. 461 (4th ed.). Here, Mr. Thyfault's duties included collecting money for drinks, and he lost his temper over that matter. His duties also included keeping order in the bar and removing disruptive customers, which Thyfault apparently tried to do by pushing appellee down the stairs.

    19

    Appellant relies on Lombardy v. Stees, 132 Colo. 570, 290 P.2d 1110 (1956), for the proposition that since the assault was purely personal, it was not within the scope of employment. In that case, however, the evidence showed that the only express instruction to the bartender was that if anyone got too much to drink he was not to be served further. The bartender there had no authority to act as a bouncer; Thyfault did, and his employment was of such a nature as to contemplate the use of force. Indeed, the owner of The Sage Club testified that Thyfault sometimes had to remove people from the club on a daily basis.

    20

    In addition to the facts set out in Combined Insurance Co. of America v. Sinclair, supra, an important factor in deciding a principal's liability for his agent's intentional torts is whether "the use of force is not unexpectable by the master." Restatement (Second), Agency 2d § 228(1)(d), p. 504 (1958). Where the nature of the employment is such that the master must contemplate the use of force by the servant, the master will be held liable for the willful act of the servant even though he had no knowledge that the act would take place. Jones v. Herr, 39 Or. App. 937, 594 P.2d 410 (1979). The employer need not have foreseen the precise act or exact manner of injury as long as the general type of conduct may have been reasonably expected. Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979). Some who frequent grogshops are not the most docile members of society. Where an employee is serving in this type of environment as a bartender, the master is usually responsible if the employee loses his temper and willfully injures a patron because the result is foreseeable in view of the servant's job.

    21

    This court will therefore not indulge in nice distinctions to determine whether the excessive force was motivated by personal reasons. It is appellant's misfortune to have hired a quarrelsome and violent bartender who in turn attacked a plaintiff experienced at collecting on injury claims. Appellant evidently allowed Thyfault to use force at his discretion, and he was performing work of the kind he was employed to perform. The assault occurred within the authorized limits of time and space and was motivated, at least partially, by a desire to serve The Sage Club. Appellant is consequently vicariously liable to Mr. Hunt under the doctrine of respondeat superior.

    23
    II
    24

    The trial court also ruled that The Sage Club was liable under a theory of negligence in maintaining Mr. Thyfault as an employee. Since we have already affirmed on the basis of respondeat superior, we do not need to address the issue of negligence.

    25

    Affirmed.

    26

    THOMAS, Justice, dissenting.

    27

    I cannot join in the opinion of the court in this instance, even though I have no disagreement with the accuracy of the concepts of law and fact which are there set forth. The sole reason I cannot join is that in my judgment this appeal should have been dismissed.

    28

    In addition to its other findings, the district court found as follows:

    29
    "6. That the Defendant, Sage Club, was negligent in keeping the Defendant, Joe Thyfault as an employee after he had 164*164 displayed vicious and aggressive behavior and that Plaintiff's injuries are a result of said negligence.
    30
    "7. That the Defendant, Sage Club, is liable to Plaintiff for damages listed in paragraph 3 other than punitive damages as a result of said negligence.
    31
    * * * * * *
    32
    "9. If an employer is negligent in keeping an employee who exhibits aggressive and quarrelsome tendencies and the employee assaults a customer while on duty, the employer is liable for damages resulting from the employer's negligence."
    33

    In these findings the district court stated an alternative basis for the liability of The Sage Club other than respondeat superior. I cannot read into the appellant's brief any attack upon these findings of independent negligence. The tenor of the argument is only that the doctrine of respondeat superior does not justify the finding of liability in this instance. While appellant at oral argument attacked the sufficiency of the evidence to support the finding of independent negligence, that matter is not addressed in appellant's docketing statement.

    34

    In his docketing statement the appellant in part of his "Statement of the Nature of the Proceedings" said with respect to the finding of the district court: "The Court below held the employer of the bartender liable on the theory of vicarious liability." No mention is made of the independent negligence of The Sage Club. In stating the "Questions Presented by this Appeal" the appellant refers only to the tort being committed "outside the employee's employment." The brief which was submitted is consistent with the docketing statement. The issue of sufficiency of the evidence to support independent negligence on the part of the employer was waived. Roberts Construction Company v. Vondriska, Wyo., 547 P.2d 1171 (1976); Barber v. Barber, Wyo., 349 P.2d 198 (1960), and the authorities cited therein.

    35

    The case for me therefore becomes one in which even if the court had agreed with counsel's argument about respondeat superior no relief could have been afforded to the appellant, and no judgment finding error on the part of the trial court could have become effective because The Sage Club would still have been liable based upon its independent negligence.

    36

    In North Laramie Land Co. v. Hoffman, 28 Wyo. 183, 201 P. 1022 (1921), the Court said at 28 Wyo. 187, 201 P. 1022:

    37
    "* * * If it be made to appear to an appellate court that the questions involved are no longer of any practical importance to the parties the case will not be reviewed on the merits merely to determine who shall pay the costs. * * *"
    38

    In Druley v. Houdesheldt, 75 Wyo. 155, 294 P.2d 351 (1956), the Court, with respect to two questions posed by the appellees, there said at 75 Wyo. 165, 294 P.2d 351:

    39
    "These questions, while of academic interest and potentially determinative in certain instances, are not requisite to adjudication of this case and need not be discussed."
    40

    In Matter of Estate of Frederick, Wyo., 599 P.2d 550, 558 (1979), the Court said, of issues found to be moot:

    41
    "* * * While these issues are sharply drawn, no doubt significant, and somewhat intriguing, we conclude that they are illusory for adversarial purposes because of the mootness injected into this case by our disposition of Case No. 5029. Proper application of the principles of judicial restraint leads to the conclusion that we should not here address these issues because our opinion under the circumstances would be advisory only. House v. Wyoming Highway Department, 66 Wyo. 1, 203 P.2d 962 (1949); Welch v. Town of Afton, 64 Wyo. 49, 184 P.2d 593 (1947). Cf., State ex rel. Schwartz v. Jones, 61 Wyo. 350, 157 P.2d 993 (1945)."
    42

    In Northern Utilities, Inc. v. Public Service Commission of Wyoming, Wyo., 620 P.2d 139, 140 (1980), the Court in a published order dismissing appeal said:

    43
    "2. When pending appeal an event occurs which makes a determination of the question involved unnecessary the appeal should be dismissed. In the Matter of the Estate of Frederick, Wyo. 1979, 599 P.2d 550, 558; House v. Wyoming Highway 165*165 Department, 1949, 66 Wyo. 1, 203 P.2d 762."
    44

    In Reno Livestock Corporation v. Sun Oil Company, Wyo., 638 P.2d 147, 154 (1981) this court said:

    45
    "* * * When no controversy exists, courts will not consume their time deciding moot questions nor decide cases to arise in the future. Northern Utilities, Inc. v. Public Service Commission, Wyo., 617 P.2d 1079, 1085 (1980) and cases there cited. * * *"
    46

    The court at a later point, at 638 P.2d 155, said:

    47
    "* * * We will not decide questions not requisite to adjudication and being only of academic interest. Wallace v. Casper Adjustment Service, Wyo., 500 P.2d 72 (1972)."
    48

    Because I am persuaded that no attack is mounted upon the alternative basis of liability in this case which is the independent negligence of The Sage Club, it is my view that it is unnecessary to determine the question of respondeat superior. The issue presented by this appeal was moot and illusory from the time the docketing statement was filed. It is for these reasons that I would hold that the appeal should have been dismissed rather than determined.

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