Costa v. Roxborough Memorial Hosp.

• Decision Date: 08 May 1998
• Citation: 708 A.2d 490
• Parties: Lisa M. COSTA, Appellant, v. ROXBOROUGH MEMORIAL HOSPITAL and Ronald Krier, Appellee.
• Court: Pennsylvania Superior Court

Page 490

708 A.2d 490

Lisa M. COSTA, Appellant, v. ROXBOROUGH MEMORIAL HOSPITAL and Ronald Krier, Appellee.

Superior Court of Pennsylvania.

Argued Jan. 14, 1998.

Filed Feb. 27, 1998.

Reargument Denied May 8, 1998.

Arthur B. Keppel, Philadelphia, for appellant.

L. Rostaing Tharaud, Philadelphia, for Roxborough Memorial Hosp., appellee.

Before KELLY, J., MONTEMURO ^*, Judge, and CIRILLO, President Judge Emeritus.

MONTEMURO, Judge:

Appellant, Lisa Costa, appeals from the April 23, 1997 Order of the Philadelphia Court of Common Pleas granting summary judgment in favor of Appellee, Roxborough Memorial Hospital, for claims of vicarious and direct liability arising from injuries Appellant sustained during an altercation with a hospital employee. Because we find that Appellant has failed to present evidence of facts essential to her causes of action, we affirm.

The underlying negligence claim stems from an incident which took place at Roxborough Memorial Hospital between Appellant and hospital employee, Ronald Krier, on October 21, 1993. At that time, Appellant was employed by Stanley Smith Security, Inc. and assigned to Roxborough Hospital as chief of security. As part of her job, Appellant was to provide security services to the Hospital by "observing and reporting" events and conducting investigations. In the months prior to the October 1993 incident, Appellant and her security staff were investigating the behavior of Ronald Krier, a laundry worker at the Hospital. Although she never directly observed such conduct, Appellant suspected that Krier was using illegal drugs at work based upon his "erratic" behavior and demeanor; e.g., he would reportedly leave the Hospital during working hours and later return exhibiting "apparent alterations in his mood." (Appellant's Brief at 5).

On October 21, 1993, Appellant received information suggesting that Krier would engage in a drug transaction later that day. Upon observing Krier's actions, Appellant and her staff saw Krier execute what was believed to be a drug deal outside the hospital. Following Krier's return to the Hospital, Appellant notified William Kaiser, the Hospital's vice president of support services, who instructed Appellant to bring Krier to the office of Carol Brill, director of personnel, where Krier would be asked to submit to a urinalysis. Krier was accompanied by his supervisor Kim Taylor, Appellant, and two other security personnel. Appellant directed one of the security men to remain in the corridor outside of Brill's office, and, as the four remaining individuals entered the small office, Brill requested that the second security person wait outside; this was done out of concern for Krier's privacy, as well as the limited space available in the office. To further limit any distraction, Brill also requested that Appellant turn off her two-way radio which was continually broadcasting reports from other security personnel in the Hospital.

Once in the office, Brill took her seat behind the desk, as Krier and Taylor settled into the two remaining seats opposite Brill across the desk. Because of the tight quarters, Appellant stood by the door behind Taylor and Krier. After explaining to Krier the circumstances and the observations made by the security personnel, Brill asked Krier to undergo a urine test for drug screening. Krier immediately became agitated, and, after initially protesting, he reluctantly agreed to take the test. After Brill exited the office to make arrangements, Krier began to verbally abuse Taylor and Appellant, and accused Appellant of being out to get him. Krier then stood from his chair, and with both hands, grabbed Appellant who was standing in front of the door. Appellant told Krier to remove his hands, and Krier responded by pushing Appellant against the door and shoving her into a book shelf before fleeing the office; he never returned to work at the Hospital. Although it is not detailed in her brief, Appellant allegedly "suffered serious and permanent injury as a result of this contact," (Appellant's Brief at 8), and commenced suit against the Hospital by writ of summons on August 28, 1995. ¹ Appellant filed a complaint in September 1995 alleging vicarious and direct liability, as well as a claim for punitive damages. ² Appellee filed a number of preliminary objections, and, by Order dated December 1, 1995, the trial court sustained the preliminary objections as to Appellant's claim for punitive damages, dismissing that claim with prejudice. On March 19, 1997, Appellee filed a motion for summary judgment, which was granted by Order dated April 23, 1997. Following the denial of her petition for reconsideration, Appellant filed the instant appeal. ³

Appellant claims that the trial court erred in granting summary judgment where there was sufficient evidence to find that Appellee "was liable to her both for its direct negligence in failing to discharge its duty to provide a safe working environment and as respondeat superior for the actions of its employee." (Appellant's Brief at 10). Appellant also challenges the trial court's grant of Appellee's preliminary objections to her claim for punitive damages.

Summary judgment is properly granted "if, after the completion of discovery relevant to the motion, ... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." Pa.R.C.P. 1035.2(2). It is well established that when reviewing a grant of summary judgment, we must view the record in the light most favorable to the non-moving party, and resolve all doubts as to a genuine issue of material fact against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996). We will reverse a grant of summary judgment only where there has been an error of law or clear abuse of discretion. Troxel v. A.I. Dupont Institute, 450 Pa.Super. 71, 675 A.2d 314, 316 (1996).

First, Appellant contends that Roxborough Hospital is vicariously liable for the abusive actions of its employee, Krier, under the theory of respondeat superior.

It is well settled that an employer is held vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment. Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 410 A.2d 1270, 1271 (1979). In certain circumstances, liability of the employer may also extend to intentional or criminal acts committed by the employee. Id. The conduct of an employee is considered "within the scope of employment" for purposes of vicarious liability if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer. Id. 410 A.2d at 1272 (citing Restatement (Second) of Agency, § 228).

The determination of whether a person was acting within the scope of his employment is typically a question for the jury. Straiton v. Rosinsky, 183 Pa.Super. 545, 133 A.2d 257, 259 (1957). "Where, however, the employee commits an act encompassing the use of force which is excessive and so dangerous as to be totally without responsibility or reason, the employer is not responsible as a matter of law." Fitzgerald, 410 A.2d at 1272. See McMaster v. Reale, 177 Pa.Super. 429, 110 A.2d 831, 832 (1955)(holding that "a master is not liable for the willful misconduct of his servant, and that such willful misconduct, while it may be within the course of the employment, is not within the scope thereof."). Moreover, our courts have held that an assault committed by an employee upon another for personal reasons or in an outrageous manner is not actuated by an intent to perform the business of the employer and, as such, is not within the scope of employment. Id. See also Potter Title & Trust Co. v. Knox, 381 Pa. 202, 207, 113 A.2d 549, 551 (1955)(finding acts committed by employee in an outrageous or whimsical manner are not within the scope of employment).

In the instant case, the trial court found that since "Krier's assault was motivated by reasons personal to himself and did not further the purpose of his employment in the laundry department," he was not acting within the scope of employment. (Trial Ct. Op. at 3). Appellant argues that although at the time of the assault, Krier was not "engaged in the performance of his job as a laundry worker, he nevertheless was acting in accordance with [the Hospital's] internal policies" regarding submission to a drug test. (Appellant's Brief at 17). Therefore, Appellant essentially claims that because the Hospital had the ability to control Krier's actions in that he was asked to submit to a drug test pursuant to Hospital policy, his reaction to this request and subsequent assault were committed within the scope of his employment. For support, Appellant relies upon Iandiorio v. Kriss & Senko Enterprises, Inc., 512 Pa. 392, 517 A.2d 530 (1986).

In Iandiorio, a gas station attendant brought a vicarious liability action against a construction company-employer for injuries he sustained when, with gasoline on his clothing, he entered an area designated for smoking, and a construction worker-employee lit a cigarette which ignited the attendant's clothing and caused serious burns to his body. Id. at 396, 517 A.2d at 532. The trial court granted a compulsory non-suit, holding that as a matter of law, the employer, whose company was contracted by the gas station to complete renovations, was not liable since the personal act of smoking was not within the employee's scope of employment. Id. at 398, 517 A.2d at 533. Our Supreme Court reversed and...