Kensington Associates v. West

• Citation: 234 Va. 430,362 S.E.2d 900
• Decision Date: 25 November 1987
• Docket Number: No. 841524,841524
• Parties: KENSINGTON ASSOCIATES v. Harry W. WEST. Record
• Court: Supreme Court of Virginia

Page 900

362 S.E.2d 900

234 Va. 430

KENSINGTON ASSOCIATES v. Harry W. WEST.

Record No. 841524.

Supreme Court of Virginia.

Nov. 25, 1987.

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.

Present: All the Justices.

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.

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 when he committed the act complained of, and ... if the evidence leaves the question in doubt it becomes an issue to be determined by the jury." Broaddus 211 Va. at 653-54, 179 S.E.2d at 504 (emphasis added); Alvey v. Butchkavitz, 196 Va. 447, 453, 84 S.E.2d 535, 539 (1954); McNeill, 191 Va. at 695, 62 S.E.2d at 18. Accord Bivens v. Manhattan Car Corp., 156 Va. 483, 159 S.E. 395 (1931); Crowell v. Duncan, 145 Va. 489, 134 S.E. 576 (1926). Moreover, when the undisputed evidence shows that an employee's deviation from his employer's business is slight and not unusual, or, on the other hand, great and unusual, a court shall determine, as a matter of law, whether the employee was acting in the scope of his employment. When, however, the evidence places the case between these two extremes, the issue is for a jury. E.g., Broaddus, 211 Va. at 653-54, 179 S.E.2d at 504; Alvey, 196 Va. at 454, 84 S.E.2d at 539; McNeill, 191 Va. at 695, 62 S.E.2d at 18; Bivens, 156 Va. at 495, 159 S.E. at 399; Drake v. Laundry Corp., 135 Va. 354, 363-64, 116 S.E. 668, 671 (1923).

Applying the foregoing principles, we held in Broaddus that the trial court properly submitted to the jury the issue of whether a security guard had acted within the scope of his employment when he shot a person whom a policeman was attempting to subdue. 211 Va. at 655-56, 179 S.E.2d at 505-06. The evidence presented in Broaddus did not show as a matter of law that the guard's deviation from his assigned duties was either slight or marked and unusual. Id. at 655, 179 S.E.2d at 505. We said the jury reasonably could have found that the guard's shooting of the person was either an independent venture of his own or done from some impulse or emotion that naturally grew out of or was incident to an attempt to perform his master's business. Id. at 656, 179 S.E.2d at 506. Accord United Brotherhood v. Humphreys, 203 Va. 781, 787-88, 127 S.E.2d 98, 102-03 (1962), cert. denied, 371 U.S. 954, 83 S.Ct. 509, 9 L.Ed.2d 501 (1963) (question whether assaults committed by striking union members were personally motivated or incident to performance of strike activities directed by international union properly left to jury's resolution); Slaughter v. Valleydale Packers, 198 Va. 339, 345, 94 S.E. 2d 260, 265 (1956) (reversing and remanding on ground, inter alia, that instruction did not permit jury to consider whether defamatory statements were made out of impulse or emotion that naturally grew out of or was incident to attempt to perform master's business); Tri-State Coach Corp., 188 Va. at 308-09, 49 S.E.2d at 368 (question whether bus driver's use of "vocal insistence and physical force" to clear a path to move his bus resulted from impulse or emotion arising out of prosecution of master's business properly submitted to jury). Cf. Davis, 133 Va. at 77-78, 112 S.E. at 630-32 (jury could reasonably conclude that railroad gateman was acting within scope of employment when he shot plaintiff following dispute over raising gates at late hour of night).

In a similar vein, we held in Alvey that conflicts in the evidence presented a jury question about whether the night manager of a service station was engaged in the owner's business when the manager accidentally shot the plaintiff while cleaning a loaded pistol. 196 Va. at 454, 84 S.E.2d at 539. The evidence concerning ownership of the gun was in direct conflict, and we said the jury reasonably could have inferred that the owner provided the manager with the gun for "protection." Id. at 455, 84 S.E.2d at 540. See also Bryant v. Bare, 192 Va. 238, 247, 64 S.E.2d 741, 747 (1951) (question whether employee permitted to use employer's truck for both personal benefit and employer's benefit had abandoned employer's business at time of accident properly submitted to jury); Crowell, 145 Va. at 505, 134 S.E. at 580 (question whether taxi driver engaged in personal or master's business one for jury's resolution where evidence showed driver, who had complete discretion in operation of owner's taxi, was operating marked taxi during business hours in usual field of operations at high rate of speed when he ran into plaintiff).

On the other hand, we upheld a trial court's ruling in McNeill that the undisputed evidence established a deliveryman's deviation from his employer's business so great that, as a matter of law, the deliveryman was not acting within his scope of employment at the time he collided with another vehicle. 191 Va. at 695-96, 62...