Brown v. Argenbright Sec., Inc.
| Decision Date | 04 October 2001 |
| Docket Number | No. 99-CV-1603.,99-CV-1603. |
| Citation | 782 A.2d 752 |
| Parties | Carla BROWN, as Next Friend of Octavia Brown, Appellant, v. ARGENBRIGHT SECURITY, INC., and Safeway Stores, Inc., Appellees. |
| Court | D.C. Court of Appeals |
Gregory L. Lattimer for appellant.
David D. Hudgins, with whom Kevin A. Kernan, Alexandria, VA, was on the brief, for appellee Argenbright Security, Inc.
Stephen M. Schaefer, with whom Jerome C. Schaefer, Washington, DC, was on the brief, for appellee Safeway Stores, Inc. Before TERRY, RUIZ, and GLICKMAN, Associate Judges.
This is an appeal from two orders granting summary judgment to appellees Argenbright Security, Inc., and Safeway Stores, Inc. Carla Brown, on behalf of her twelve-year-old daughter Octavia, sued Argenbright and Safeway for negligence, intentional infliction of emotional distress,1 and negligent infliction of emotional distress. The complaint alleged that Joseph Hunter, a security guard employed by Argenbright, stopped Octavia on suspicion of shoplifting just as she left a Safeway store and, in the course of searching her, touched her in a sexually improper manner. The complaint also alleged that Octavia's picture was taken and posted in the Safeway store to identify her as a shoplifter, causing her emotional distress.
On this appeal, Ms. Brown argues that the trial court erred in ruling that Argenbright and Safeway were not vicariously liable for Hunter's actions as a matter of law, in dismissing the negligence claims against Safeway, and in dismissing her emotional distress claims against both parties based on the alleged posting of her picture on the bulletin board. As to Safeway, we affirm the judgment in its entirety. As to Argenbright, we conclude that the trial court erred when it ruled that Argenbright could not be held vicariously liable for Hunter's actions as a matter of law. Accordingly, we reverse in part the trial court's order granting summary judgment to Argenbright and remand the case for further proceedings.
Safeway operates a supermarket on Martin Luther King Avenue in Southeast Washington. Argenbright provides unarmed personnel to work as security guards in that supermarket, pursuant to a contract between Safeway and Argenbright's corporate predecessor.
On October 15, 1997, a Safeway employee informed Joseph Hunter, an Argenbright security guard assigned to the supermarket, that he had seen Octavia Brown and her friends steal some candy from the store. Octavia testified in her deposition that she had just left the store when Hunter asked her to come back inside and "pulled" her into the store's security booth. Hunter then emptied the pockets of her jacket2 and began to search her, first touching the upper part of her arm and then the upper portion of her chest between her neck and breasts. Octavia described the search as follows:
Despite her request that a female security guard conduct the search, Octavia testified that no other Safeway or Argenbright employee was present while Hunter searched her. After she was searched, a "female security lady" took a Polaroid photograph of her inside the security booth. Octavia never saw the photograph, but she said she had been teased by friends who later saw her picture posted on the wall of the store.
In his deposition testimony, Hunter admitted questioning Octavia about the stolen candy, but he said he did not search her or touch her in an improper manner. Hunter also stated that he called a female Safeway employee over to the security booth as he was trained to do, and that she was present during the questioning.3 He said that he took one photograph of Octavia, but he placed it in the store's files with his report of the incident and did not post it on the wall of the store, as Octavia asserted.
On November 2, 1998, one year and eighteen days after the incident, Carla Brown filed a complaint against both Argenbright and Safeway alleging negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.4 She sought $250,000 in compensatory damages and $250,000 in punitive damages on each count. Both Argenbright and Safeway filed motions for summary judgment, which the trial court granted, holding (1) that Argenbright and Safeway could not be held liable under a theory of respondeat superior because, as a matter of law, Hunter was not acting within the scope of his employment when engaging in the alleged improper sexual conduct,5 (2) that Ms. Brown did not present sufficient evidence supporting her claim that either Argenbright or Safeway was negligent in hiring, supervising, or training Mr. Hunter,6 and (3) that no jury question was presented on the claim of negligent infliction of emotional distress based on the posting of Octavia's photograph on the wall of the store, since the only evidence of that posting was inadmissible hearsay.
"In reviewing the trial court's summary judgment ruling, it is not the function of this court to resolve factual issues, but rather merely to determine whether any relevant factual issues exist." Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346, 348 (D.C.1987) (citation omitted); accord, e.g., Murphy v. Army Distaff Foundation, Inc., 458 A.2d 61, 62 (D.C. 1983); see Super. Ct. Civ. R. 56(c) (). On the record before us, we hold that summary judgment was properly granted to Safeway, but that issues of material fact remain with respect to Argenbright.
"Under the doctrine of respondeat superior, an employer may be held liable for the acts of his employees committed within the scope of their employment." Boykin v. District of Columbia, 484 A.2d 560, 561 (D.C.1984) (citation omitted). As a general rule, whether an employee is acting within the scope of his employment is a question of fact for the jury. "It becomes a question of law for the court, however, if there is not sufficient evidence from which a reasonable juror could conclude that the action was within the scope of the employment." Id. at 562 (citations omitted). In this case we conclude that summary judgment in favor of Argenbright on the respondeat superior issue was unwarranted because, on the evidence presented, a reasonable juror could have concluded that Hunter's actions—as described by Octavia—were, at least in part, within the scope of his employment.
In Johnson v. Weinberg, 434 A.2d 404 (D.C.1981) ("Johnson I"), we addressed a respondeat superior claim brought by a laundromat customer who was shot by a laundromat employee. After the two men had argued over some missing laundry, the employee drew a gun and shot the customer. The trial court directed a verdict in favor of the laundromat's owner, ruling that the employee's action was outside the scope of his employment. We reversed and remanded the case for a new trial, holding that "[r]easonable minds could find that the shooting arose out of and was related to [the employee's] employment. . . and the court committed error by taking the question from the jury." Id. at 409.
A second trial resulted in a verdict for the customer. The laundromat owner appealed, arguing inter alia that the trial court should have directed a verdict in his behalf because the shooting was not within the employee's scope of employment. He maintained that there had been a substantive change in the law resulting from our decision in Boykin v. District of Columbia, supra.7 We held that Boykin had not changed the law, and stated:
The employer does not avoid liability for the employee's intentional torts . . . if the tort is committed partially because of a personal motive, such as revenge, as long as "the employee [is] actuated, at least in part, by a desire to serve his principal's interest."
Weinberg v. Johnson, 518 A.2d 985, 988 (D.C.1986) ("Johnson II") (citations omitted).
Applying Johnson I and Johnson II, we must reject as too broad the statement in the trial court's order that "sexual assaults are, as a matter of law, solely for the employee's benefit." While it is probable that the vast majority of sexual assaults arise from purely personal motives, it is nevertheless possible that an employee's conduct may amount to a sexual assault and still be "actuated, at least in part, by a desire to serve [the employer's] interest." Jordan v. Medley, 228 U.S.App. D.C. 425, 428, 711 F.2d 211, 214 (1983) (emphasis added) (cited in Johnson II, 518 A.2d at 988); see RESTATEMENT (SECOND) OF AGENCY § 228 (1958).8 The conduct at issue in this case, ostensibly a physical search of a suspected shoplifter, is particularly susceptible to this interpretation, especially when the search was initiated by Hunter only after he had reason to believe that his employer's interests had been affected (i.e., that merchandise had been stolen by the person he was about...
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