Brueckner v. Norwich University

• Decision Date: 05 February 1999
• Docket Number: No. 97-396.,97-396.
• Parties: William C. BRUECKNER, Jr. v. NORWICH UNIVERSITY.
• Court: Vermont Supreme Court

730 A.2d 1086

William C. BRUECKNER, Jr. v. NORWICH UNIVERSITY.

No. 97-396.

Supreme Court of Vermont.

February 5, 1999.

Motion for Reargument Denied March 10, 1999.

Richard T. Cassidy, Richard H. Thomas and Kerin Stackpole of Hoff Curtis Pacht Cassidy & Frame, P.C., Burlington, for Plaintiff-Appellee.

Allan R. Keyes and John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, and Arthur Makadon, Walter M. Einhorn, Jr., and Courtney L. Yeakel of Ballard Spahr Andrews & Ingersoll, Philadelphia, Pennsylvania, for Defendant-Appellant.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

Norwich University appeals from the denial of its post-trial motions for judgment as a matter of law, or in the alternative, for a new trial, following a jury verdict finding it liable and awarding compensatory and punitive damages on several tort claims arising from incidents of hazing suffered by plaintiff while a freshman. Norwich University raises numerous issues with respect to its liability, the award of lost earnings damages, and the award of punitive damages. We affirm the court's rulings on liability and lost earnings damages, but reverse the award of punitive damages because there was an insufficient showing of malice to support the award.

Viewing the evidence in the light most favorable to the plaintiff, as we must on the appeal of both a motion for judgment as a matter of law, see Silva v. Stevens, 156 Vt. 94, 101-02, 589 A.2d 852, 856 (1991), and a motion for a new trial, see Lent v. Huntoon, 143 Vt. 539, 549, 470 A.2d 1162, 1170 (1983), the facts are as follows. In August 1990, plaintiff William C. Brueckner, Jr. arrived as an incoming freshman, or "rook," at the Military College of Vermont of Norwich University (Norwich). At the time, he was a twenty-four year old, five-year veteran of the United States Navy, having been awarded a four-year naval ROTC scholarship in the amount of $80,000 to attend Norwich. Under the authority and training of Norwich and its leadership, certain upperclassmen were appointed by the university to indoctrinate and orient the incoming rooks, including plaintiff. These upperclassmen were known as the "cadre."

Plaintiff attended Norwich for only sixteen days as a result of his subjection to, and observation of, numerous incidents of hazing. In those sixteen days, plaintiff withstood a regular barrage of obscene, offensive and harassing language. He was interrogated at meals and thereby prevented from eating. He was ordered to disrobe in front of a female student, although he did not follow the order. He was prevented from studying during some of the assigned study periods and, on several occasions, cadre members destroyed his academic work with water. Members of the cadre also forced him to squat in the hall as they squirted him with water. He was forced to participate in unauthorized calisthenic sessions, despite an injured shoulder. He was slammed into a wall by a cadre member riding a skateboard in the hall. After cadre members vandalized his room by dumping water in it, plaintiff was ordered to clean up the mess. On two occasions, plaintiff was prevented from attending mandatory ROTC study hall on time, leading him to believe his scholarship status was endangered. One morning, as plaintiff walked along the corridor in the dormitory, he encountered two cadre members, one of whom asked plaintiff where plaintiff's name tag was. When plaintiff responded that he had forgotten it, one cadre member hit plaintiff hard in the shoulder, which was injured and in a sling. After the other cadre member told the hitter to stop, the hitter struck plaintiff again in the same shoulder, causing pain and bruises. After reporting the hazing problems to Norwich officials, plaintiff left the campus, believing that his situation would not improve. He returned briefly once more, then withdrew from Norwich, his scholarship terminated. Norwich investigated plaintiff's complaints and, as a result, several cadets were disciplined.

Plaintiff brought this action against Norwich for assault and battery, negligent infliction of emotional distress, intentional infliction of emotional distress and negligent supervision. By means of special interrogatories, the jury found Norwich liable on all counts and awarded plaintiff $100,000 for emotional distress, $8,600 for medical expenses, $80,000 for the lost four-year college scholarship and $300,000 to cover lost earnings (past and future). The jury also awarded $1.75 million in punitive damages. The court denied Norwich's post-trial motions for judgment as a matter of law and for a new trial. Norwich appeals.

I. Norwich's Liability

Norwich challenges the court's denial of its motion for judgment as a matter of law on each of plaintiff's theories of liability. We find no error.

Judgment as a matter of law may be granted where "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the non-moving] party." V.R.C.P. 50(a)(1), (b). Under the rule, a trial court considers the evidence "in the light most favorable to the nonmoving party, excluding the effect of any modifying evidence." Lussier v. North Troy Eng'g Co., 149 Vt. 486, 490, 544 A.2d 1173, 1176 (1988). If evidence exists that may fairly and reasonably support all elements of the nonmoving party's claim, judgment as a matter of law is improper. On appeal from a denial or grant of judgment as a matter of law, this Court also views the evidence in the light most favorable to the nonmoving party and excludes the effects of any modifying evidence. See Center v. Mad River Corp., 151 Vt. 408, 413, 561 A.2d 90, 93 (1989). The question is whether the result reached by the jury is "sound in law on the evidence produced." Kinzer v. Degler Corp., 145 Vt. 410, 412, 491 A.2d 1017, 1018 (1985).

A. Vicarious Liability — Assault and Battery, Intentional and Negligent Infliction of Emotional Distress

i. Vicarious Liability

Norwich claims error in the court's entry of judgment on the claims of assault and battery, as well as negligent and intentional infliction of emotional distress, because those claims are premised on acts of the cadre members that were not authorized and did not occur within the scope of their employment. Norwich claims it should not be held vicariously liable for the cadre's hazing.

Under the settled doctrine of respondeat superior, an employer or master is held vicariously liable for the tortious acts of an employee or servant committed during, or incidental to, the scope of employment. See Anderson v. Toombs, 119 Vt. 40, 44-45, 117 A.2d 250, 253 (1955); Poplaski v. Lamphere, 152 Vt. 251, 257, 565 A.2d 1326, 1330 (1989). Norwich concedes that cadre members acted as its agents in "indoctrinating and orienting" rooks such as plaintiff. Norwich claims, however, that the tortious acts complained of were not committed within the cadre members' "scope of employment." Whether a given act is committed within the scope of employment is properly determined by the finder of fact after consideration of the attendant facts and circumstances of the particular case. See Anderson, 119 Vt. at 48,117 A.2d at 254.

To be within the scope of employment, conduct must be of the same general nature as, or incidental to, the authorized conduct. See Restatement (Second) of Agency § 229(1) (1958). Conduct of the servant falls within the scope of employment if: (a) it is of the kind the servant is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master; and (d) in a case in which the force is intentionally used by the servant against another, it is not unexpectable by the master. See id. § 228(1). Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time and space limits, or too little actuated by a purpose to serve the master. See id. § 228(2).

Here, the cadre were authorized by Norwich to indoctrinate and orient rooks through activities performed at various times of the day and night. A jury could reasonably find members of the cadre were acting in furtherance of their general duties to indoctrinate and orient the rooks and thus within their "scope of employment" at the time of the hazing incidents of which plaintiff complains.

Norwich argues that, because it had adopted policies against hazing and had instructed the cadre to refrain from mistreating the rooks, the tortious conduct was outside the scope of employment. Norwich contends that McHugh v. University of Vermont, 966 F.2d 67 (2d Cir.1992), supports this result. In McHugh, the Second Circuit Court of Appeals, applying Vermont law, concluded that an employee who sexually and religiously harassed a fellow employee was not acting within the scope of employment. There, a major in the United States Army and an employee at the University of Vermont's Department of Military Studies told plaintiff, a female secretary, that his definition of a "secretary" was a "paid whore." The employee repeatedly joked about plaintiff contracting AIDS, stating that he hoped she would be able to avoid infection. The employee also told plaintiff that it was "a good day to watch Catholic babies burn." Id. at 68-69. The court rejected the argument that the employee's conduct was within his scope of employment because it was within that scope for him to talk with the plaintiff, either to give instructions or to avoid the awkwardness of silence at work. It held: "It can hardly be contended that [the employee's] alleged conduct furthered the business" of his employer. Id. at 75.

The same cannot be said of this case, where the actions involved in hazing rooks may fairly be seen as qualitatively similar to the indoctrination and orientation with which the cadre members were charged. Indeed, Norwich described some of the acts of which plaintiff...