Glucksman v. Walters

• Citation: 38 Conn.App. 140,659 A.2d 1217
• Decision Date: 06 June 1995
• Docket Number: No. 12788,12788
• Court: Appellate Court of Connecticut
• Parties: Allen GLUCKSMAN et al. v. Kris WALTERS et al.

Page 1217

659 A.2d 1217

38 Conn.App. 140

Allen GLUCKSMAN et al. v. Kris WALTERS et al.

No. 12788.

Appellate Court of Connecticut.

Argued March 13, 1995.

Decided June 6, 1995.

Thomas M. Cassone, with whom, on the brief, were Christopher R. Bello, Lawrence M. Lapine and Robert S. Bello, Stamford, for appellants (plaintiffs).

Charles A. Deluca, with whom, on the brief, was Gary R. Khachian, Stamford, for appellee (defendant Young Men's Christian Ass'n of Stamford).

Before DUPONT, C.J., and O'CONNELL and SPEAR, JJ.

DUPONT, Chief Judge.

The plaintiffs, Allen Glucksman (Glucksman), and his wife, Shari Glucksman, brought this action against the defendants, Kris Walters and the Young Men's Christian Association (YMCA), to recover damages for injuries that occurred when Walters attacked Glucksman during a pickup basketball game in the gymnasium of the Stamford YMCA. The named plaintiff seeks damages in his individual capacity and Shari Glucksman seeks damages for loss of consortium.

The plaintiffs' action was brought in five counts. The first and second counts are not at issue in this appeal. The third count alleged liability on the part of the YMCA on the ground of respondeat superior. The fourth count alleged negligence on the part of the YMCA. The fifth count alleged loss of consortium based on the claims of respondeat superior and negligence.

At the close of the plaintiffs' case-in-chief, the YMCA moved for a directed verdict on the third count of the complaint. The trial court reserved judgment on that motion, and then granted the motion prior to the court's charge to the jury. The remaining counts were fully tried and presented to a jury. On the fourth and fifth counts, the jury found for the YMCA. The plaintiffs filed a motion to set aside the verdict, which the trial court denied. The plaintiffs appeal from the judgment for the YMCA and the denial of the plaintiffs' motion to set aside the verdict underlying the judgment on the fifth count.

On appeal, the plaintiffs argue that the trial court improperly (1) directed the verdict in favor of the YMCA on the respondeat superior count of the plaintiffs' complaint, (2) permitted the YMCA's experts to testify concerning industry custom or practice, and then charged the jury that it could consider the common practices of other YMCAs, and (3) refused to charge the jury with regard to the YMCA's failure to comply with its own policies, procedures and guidelines. We reverse the judgment in part and affirm it in part.

There are certain facts that the jury reasonably could have found if it found the plaintiffs' evidence credible. At the Stamford YMCA, weekday pickup basketball games occur regularly at lunchtime. These games are aggressive and competitive. Confrontations or disagreements between players, including physical challenges, occur frequently.

On the afternoon of July 7, 1994, a pickup basketball game took place in the gymnasium of the YMCA. The plaintiff Glucksman and the defendant Walters were guarding one another. Glucksman was a member of the YMCA and Walters was a part-time employee. Glucksman had possession of the ball and moved toward the basket. As Glucksman progressed, he charged into Walters, knocking him backward, which was a foul. Walters responded by punching Glucksman in the head. Other players moved to intercede and Glucksman stumbled away from Walters toward the basket. Walters then attacked Glucksman again, hitting him repeatedly in the head and the back.

As a result of the attack, Glucksman suffered a subarachnoid hemorrhage of the brain, a heart attack and a focal seizure. He spent thirteen days in the hospital, seven of which were in intensive care. Glucksman exhibits mood swings, memory loss and a lack of patience. His work and personal life have suffered because of the attack.

Walters, as a part-time employee of the YMCA, had permission to use the facilities during his off hours. At the YMCA, professional employees were expected to maintain order and to conduct themselves in accordance with the YMCA's policies whether on duty or not. Other part-time employees, with positions similar to Walters, considered themselves to be on duty, ready to help maintain order in the facility, during work and off hours. Employees were expected to maintain order on the basketball court where games sometimes were aggressive and unruly. At least one full-time employee expected Walters to help keep order during evening basketball games.

I RESPONDEAT SUPERIOR

The plaintiffs argue that the trial court improperly directed a verdict for the YMCA on count three of the plaintiffs' complaint, which alleged liability on the basis of respondeat superior. We agree.

"Directed verdicts are not generally favored. A trial court's decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion.... In reviewing the trial court's decision directing a verdict and denying a subsequent motion to set it aside, this court considers all the evidence, including reasonable inferences, in the light most favorable to the plaintiff." (Citations omitted.) Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979). " '[A] party has the same right to submit a weak case [to the jury] as he has to submit a strong one....' " Somma v. Gracey, 15 Conn.App. 371, 375, 544 A.2d 668 (1988).

In order to prevail on their challenge to the directed verdict, the plaintiffs must show that they presented sufficient facts to establish a prima facie case of respondeat superior. Under the doctrine of respondeat superior, "[a] master is liable for the wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business." Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967). "A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment.... While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful ... that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business.... Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable." (Citations omitted; internal quotation marks omitted.) A-G " 'The doctrine of respondeat superior focuses on the employee's conduct rather than on the employer's knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of employer business, the employer's consent or ratification of the misconduct is irrelevant ... even an innocent employer must compensate an injured party.' " Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 520, 603 A.2d 1173 (1992), quoting Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn.App. 640, 646, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990).

Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 209-10, 579 A.2d 69 (1990).

If the jury found the plaintiffs' evidence credible, it could reasonably find that, but for his position as an employee, Walters would not have been on the basketball court, that Walters had been responsible for helping to maintain order on the basketball court, that the YMCA benefited when Walters played basketball because it had an employee on the court to help keep order, that the commission of fouls disrupts a basketball game, and that Walters attacked Glucksman in a misguided effort to prevent Glucksman from committing fouls and disrupting the game.

This case is similar to Pelletier v. Bilbiles, supra, 154 Conn. 544, 227 A.2d 251, and Reilly v. DiBianco, 6 Conn.App. 556, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986). In Pelletier, an employee of a confectionery store, who was charged with keeping order in the store, assaulted a customer who had thrown a wrapper on the floor. The court, finding that the issue of respondeat superior should have reached the jury, wrote, "The beating of an unruly customer, if the plaintiff can be so characterized, is an extremely forceful, although misguided, method of discouraging patrons of the Spa, including the plaintiff, from causing disturbances on the premises in the future. The fact that the specific method a servant employs to accomplish his master's orders is not authorized does not relieve the master from liability.... A master does not escape liability merely because his servant loses his temper while he is conducting the master's business." (Citations omitted.) Id., at 548, 227 A.2d 251. Here, the plaintiffs presented sufficient evidence for a reasonable jury to infer that Walters beat Glucksman in a misguided attempt to maintain order on the basketball court.

In Reilly, we affirmed the trial court's denial of a motion to render judgment for the defendant notwithstanding the verdict where the plaintiff had been beaten by the defendant's employee after the plaintiff allegedly stole a checkbook from the defendant's service station. We found that it was appropriate for a jury to consider the issue of respondeat superior where "the assault occurred, or at least began, on the premises of the business ... the employer was present at the time, and ... the assault was committed in defense of the employer's property." In the present case, Walters was involved in an aggressive basketball game, sponsored by his employer. He would not have been in the game but for his employment with the YMCA. One of the duties of Walters, inferentially, was to help keep order on the basketball court.

The YMCA attempts to distinguish Pelletier and Reilly by noting that, in those cases, it was clear that the employee was on duty and was arguably acting to...