523 F.3d 477 (5th Cir. 2008), 06-60030, Foradori v. Harris

Docket Nº:06-60030.
Citation:523 F.3d 477
Party Name:Mike FORADORI, etc.; et al., Plaintiffs, Michael Foradori, Jr., Plaintiff-Appellee, v. Garious L. HARRIS, etc.; et al., Defendants, Captain D'S, L.L.C., Defendant-Appellant.
Case Date:April 01, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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523 F.3d 477 (5th Cir. 2008)

Mike FORADORI, etc.; et al., Plaintiffs,

Michael Foradori, Jr., Plaintiff-Appellee,


Garious L. HARRIS, etc.; et al., Defendants,

Captain D'S, L.L.C., Defendant-Appellant.

No. 06-60030.

United States Court of Appeals, Fifth Circuit.

April 1, 2008

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Joseph Cashe Langston, R.H. Burress, III, The Langston Law Firm, Booneville, MS, John G. Corlew (argued), Joseph Collins Wohner, Jr., Charles Clark, Kathy K. Smith, Watkins & Eager, Jackson, MS, David Zachary Scruggs, Scruggs Law Firm, Oxford, MS, for Plaintiff-Appellee.

W. Scott Welch, III (argued), Bradley S. Clanton, Bradley Clayton Moody, Baker, Donelson, Bearman, Caldwell & Berkowitz, Jackson, MS, Lamar Bradley Dillard, Mitchell, McNutt & Sams, Tupelo, MS, Bradley Farel Hathaway, Campbell, DeLong, Hagwood & Wade, Greenville, MS, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:03-CV-669

Before DAVIS, DENNIS and PRADO, Circuit Judges.

DENNIS, Circuit Judge

The principal issue in this case is whether the evidence supports a reasonable jury's findings that the defendant fast food restaurant operator's negligent failures to regulate, train, supervise, and control its off-duty employees on its premises were proximate causes of the plaintiff customer's quadriplegia. We conclude that it does. The jury reasonably could have found from the evidence that the restaurant operator negligently failed to train and regulate its employees so as to prevent the undue risk of harm to customers by off-duty employees on its premises; that the manager in charge of the restaurant premises negligently failed to supervise and control a hostile off-duty employee who subjected the plaintiff customer to an altercation inside the restaurant; that the manager, rather than defusing the altercation, ordered the participants to take the angry disturbance outside; that the exeunt of protagonists, fellow employees and excited spectators led directly to the plaintiff being assaulted and severely injured by one of the employees in the restaurant parking lot; and that the negligence of the restaurant company and its manager in these respects were proximate causes of the plaintiff's injury and disability.

I. Factual Background

The plaintiff, Michael Foradori, a 150-pound fifteen-year-old customer in a Captain D's restaurant in Tupelo, Mississippi was challenged to a fight by Al Cannon, an older teenage restaurant employee, who

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was off-duty but dressed in his restaurant uniform. Cannon was angry because he thought Foradori had been hitting on his girlfriend. As a group of young spectators gathered, Cannon's insistence that Foradori go outside to fight grew louder and sharper. The testimony is in dispute as to whether Garious Harris, another restaurant employee, as well as other employees, joined Cannon in confronting Foradori. After berating Foradori for fifteen to twenty minutes, Cannon emphasized his taunts by throwing a small object into Foradori's face or head. Foradori testified that he felt insulted, humiliated, and bullied during the incident; he said he did not want to fight but at the same time did not want to be seen as "chicken."

The evidence is in conflict as to whether Peggy King, the restaurant manager who was in the dining area near the cash registers, should have known that the escalating altercation created the risk of a fight and bodily harm to Foradori. Jeremy Shells, a cook working in the kitchen further from the disturbance than Ms. King, testified that it was apparent that a fight was in the offing. He characterized the confrontation between Cannon and Foradori in the dining area as including "fussing and fighting," "loud voices . . . in an argument," "arguing inside the store," and "arguing on their way out of the store." He also testified that when the dispute moved outside, he followed because "they was already in the store arguing, so the next thing in my mind was, hey, they fixing to fight." On the other hand, Ms. King, the parent of a teenager, testified that the commotion was loud and distracting but that she thought it was only teenage horse-play. She did not investigate, intervene, or exercise her authority to control the off-duty workers and protect Foradori from the risk of harm. Instead, she called out to the noisy teenagers to take the disturbance outside. Cannon responded by walking out the front door with a group of teenagers and Foradori close behind. Foradori followed, he said, because he could no longer endure the humiliation, even though he did not want to fight. Garious Harris, still in his work uniform, clocked out and joined the crowd that flowed outside to be near the fight.

In the Captain D's parking lot, Cannon continued to verbally challenge the still reluctant Foradori. Ultimately, Cannon invited Foradori to show his mettle by joining him for a fight in the parking area of the business next door, which was situated at a lower level than Captain D's. At the end of the altercation, however, Foradori was still standing above on the edge of the Captain D's parking lot while Cannon taunted him from below. At this point, Harris, a football player over six feet tall and weighing nearly 250 pounds, sprinted toward Foradori from behind and struck him with his fist in the back of his neck. Harris was running at full speed when he delivered the blow, described as a "hard punch" with a "balled-up fist" and "a punch like I never seen before." It immediately knocked Foradori unconscious, causing him to fall head first to the concrete surface below. Foradori's next memory was waking up in the hospital "after a couple of days." Foradori suffered a broken neck and severed spine and was diagnosed with pure C5 sensory loss, meaning that he has no sensation at all beneath his shoulders. His quadriplegia is permanent. According to the American Spinal Association scale of measurement, Foradori suffers from the most severe form of this disability.

II. Proceedings in The District Court

Foradori brought suit in the Circuit Court of Lee County, Mississippi, seeking damages for injuries resulting from the tortious conduct of Captain D's, LLC and

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others. Defendant Captain D's removed the case to the United States District Court for the Northern District of Mississippi based on diversity of citizenship of the parties.1

After initially denying Captain D's motion for summary judgment, the district court reconsidered its ruling and granted summary judgment in respect to plaintiff's premises liability claims.

The case proceeded to a trial by jury on October 3, 2005, and at trial, plaintiff's counsel called a number of liability-fact witnesses. Foradori, Shells, and King testified to their versions of the events. According to the testimony of Foradori and Shells, the argument between Cannon and Foradori was sufficiently loud and apparent to make it clear to any reasonably observant person in the restaurant, particularly a manager in charge, that a fight was brewing. Foradori testified that the argument, lasting "15 [to] 20 minutes," "got louder and louder as it went on," drew a crowd of spectators, and "was loud enough that [the Captain D's managers] could have heard it."2 Shells corroborated this description of the events, stating that even from his position in the kitchen he could hear the "loud voices . . . in an argument" "fussing and fighting" and that his immediate thought when the group began exiting the restaurant was that "they fixin to fight." King testified that her only concern at the time was that what she thought was the "horse-play" of a group of disruptive teenagers was disturbing her cashiers.3 Foradori also called Jerry Rhodes, the general manager of the Captain D's restaurant, who admitted that under no circumstances should restaurant employees intimidate or assault customers; that managers, such as Ms. King, are obligated to take action to stop confrontations between customers and employees; and that failure to do so is a violation of restaurant and company policy. Finally, Foradori called Phil Purcell, an attorney serving as Captain D's risk manager and corporate representative, who admitted that the Captain D's employees' conduct, if as alleged, violated Captain D's policy against on-premises customer assault; that an employee's assault on a customer likely warranted his discharge;4 and that a manager who, knowing that an employee was acting disrespectfully to a customer, failed to intervene would violate company policy. In fact, Purcell conceded that if Foradori's injury occurred as Foradori and Shells described it, Captain D's should be responsible.5

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At the close of Foradori's case, Captain D's rested without calling any witnesses. Captain D's then moved for a judgment as a matter of law dismissing all of Foradori's claims. The district court granted the motion in part, dismissing Foradori's action to hold Captain D's vicariously liable for Harris's assault upon Foradori because that intentional tort was outside the scope and course of Harris's employment. But the court also denied the motion in part, refusing to dismiss Foradori's claims based on Captain D's negligent failure to regulate, train, supervise and control its managers and employees, and submitted those negligence claims to the jury.

Following closing arguments, the district court charged the jury on the elements underlying Foradori's claims based on Captain D's alleged negligent failure to supervise, control, and train its employees in order to protect its customers from undue risk of harm. The district court noted that this court, in Williams v. United States Fidelity & Guaranty Co., 854 F.2d 106, 109 (5th Cir. 1988), indicated that Mississippi law...

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