362 S.E.2d 900 (Va. 1987), 841524, Kensington Associates v. West

Docket Nº:841524.
Citation:362 S.E.2d 900, 234 Va. 430
Opinion Judge:[10] Stephenson
Attorney:[7] J. Alvernon Smith, Jr. (Samuel Baronian, Jr.; Smith, Blank, Isaacs & Hinton, on briefs), for appellant.
Case Date:November 25, 1987
Court:Supreme Court of Virginia

Page 900

362 S.E.2d 900 (Va. 1987)

234 Va. 430



Harry W. WEST.

No. 841524.

Supreme Court of Virginia.

November 25, 1987.

        [234 Va. 431] J. Alvernon Smith, Jr. (Samuel Baronian, Jr.; Smith, Blank, Isaacs & Hinton, Richmond, on briefs), for appellant.

        William G. Barkley (Pickford and Barkley, Charlottesville, on brief), for appellee.

        [234 Va. 430] Present: All the Justices.

Page 901

        [234 Va. 431] STEPHENSON, Justice.

        Harry W. West sued Kensington Associates (Kensington) and its employee, Willis Chittum, to recover damages for personal injuries West incurred when he was accidentally shot by Chittum. A jury returned a verdict for West in the amount of $200,000 against both Kensington and Chittum, and the trial court entered judgment on the verdict. 1 Kensington alone appeals, contending that Chittum, as a matter of law, acted outside the scope of his employment when he shot West. 2

        West was employed by United Services Industries (United Services). Kensington, owner of the former Johnston-Willis Hospital building in Richmond, contracted with United Services to renovate the hospital building. United Services provided on-site living quarters for its construction workers, including West.

        Kensington employed Chittum as a security guard at the site. Chittum was responsible for protecting Kensington's property, securing the building, and preventing vandalism.

        [234 Va. 432] While on duty, Chittum carried a pistol in a holster. Kensington's officials knew that Chittum carried a pistol and acknowledged that he was armed for Kensington's benefit. Kensington's officials had told Chittum to call the police if any trouble arose.

        On various occasions before West was shot, Chittum had engaged in horseplay with Willie Archie, another United Services construction worker. On those occasions, Chittum had removed the pistol from the holster and waved it around to scare Archie.

        West was shot on the night of May 13, 1981. That night, while on duty and after completing his rounds through the building, Chittum stopped in the hallway outside the workers' recreation room. He believed that Archie was in the room; Chittum, however, did not know that West was there. As Chittum was in the act of removing his pistol from the holster, the pistol discharged and the bullet struck West in the foot. Chittum testified that the shooting resulted from "horseplay." He said he pulled the pistol to have "fun" with Archie, not to protect Kensington's property. Chittum also stated that he had drunk a "couple of beers" at the time, although drinking while on duty was prohibited by Kensington. Kensington's officials had instructed Chittum not to bother the construction workers and not to go into the recreation room.

        Under the doctrine of respondeat superior, an employer is liable for the tortious act of his employee if the employee was performing his employer's business and acting within the scope of his employment. McNeill v. Spindler, 191 Va. 685, 694, 62 S.E.2d 13, 17 (1950). Generally, an act is within the scope of the employment if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer's interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer's business, "and did not arise wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account." Broaddus v. Standard Drug Co., 211 Va. 645, 653, 179 S.E.2d 497, 503- 04 (1971); Cary v. Hotel Rueger, Inc., 195 Va. 980, 984, 81 S.E.2d 421, 423 (1954); Tri-State Coach Corp. v. Walsh, 188 Va. 299, 307, 49 S.E.2d 363, 367 (1948); Davis v. Merrill, 133 Va. 69, 77, 112 S.E. 628, 630-31 (1922).

        When an employer-employee relationship has been established, "the burden is on the [employer] to prove that the [employee] was not acting within the scope of his employment...

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