International Distributing Corp. v. American Dist. Tel. Co., s. 75-1261 and 75-1283
| Decision Date | 19 December 1977 |
| Docket Number | Nos. 75-1261 and 75-1283,s. 75-1261 and 75-1283 |
| Citation | 186 U.S.App.D.C. 305,569 F.2d 136 |
| Parties | , 3 Fed. R. Evid. Serv. 503 INTERNATIONAL DISTRIBUTING CORPORATION, a Maryland Corporation, Appellant, v. AMERICAN DISTRICT TELEGRAPH COMPANY et al., Appellees. INTERNATIONAL DISTRIBUTING CORPORATION, a Maryland Corporation v. AMERICAN DISTRICT TELEGRAPH COMPANY, a West Virginia Corporation, Appellant, v. George E. HINES, Walter T. Smith, Jr. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Francis J. O'Toole, Washington D. C., with whom Milton Eisenberg, Washington D. C., was on the brief for appellant in No. 75-1261 and appellee in No. 75-1283.
Peter Barnes, Washington D. C., for appellant in No. 75-1283 and appellee in No. 75-1261.
Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.
Opinion for the Court filed by ROBB, Circuit Judge.
This case arises from the theft of thousands of dollars worth of merchandise from a liquor store operated by International Distributing Corporation (IDC). IDC sued American District Telegraph Corporation (ADT), the company which provided a burglar alarm service to IDC. The theory of the suit was that two of ADT's employees committed the thefts.
The District Court granted summary judgment to the plaintiff (IDC) on the count of the complaint which alleged a breach of contract but granted summary judgment to the defendant (ADT) on the remaining counts. Both parties appealed.
We affirm the summary judgment on the contract count and reverse with respect to the counts sounding in tort.
The dispute in this case arises from a contract in which ADT agreed to provide burglar alarm service to IDC. The contract provided that when ADT received an alarm signal at its central monitoring station it would dispatch its employees to IDC's store. The employees would gain entry by using keys which IDC provided to ADT for this purpose. Unfortunately, this practice proved tantamount to letting the wolf into the sheepfold. Two of ADT's employees, Smith and Hines, repeatedly stole large quantities of liquor after using their keys to enter and check on real or bogus alarms.
IDC sued ADT in both contract and tort, basing the tort counts upon the theory of respondeat superior. Defendant ADT moved for summary judgment on the tort counts, and the District Court granted the motion. The court also granted summary judgment to the plaintiff sua sponte on the counts sounding in contract. However the court awarded damages of only $446.00 in accordance with a limitation of damages clause in the contract. We shall consider each of these actions briefly.
We turn first to the contract count of the complaint. Defendant ADT argues that the District Court should not have granted the motion for summary judgment. The motion, ADT argues, did not present facts which would be admissible as evidence at trial, as required by Rule 56(e) of the Federal Rules of Civil Procedure. ADT further argues that even if the evidence would be admissible, it is insufficient to support a summary judgment.
The summary judgment was based upon two documents. The first was an affidavit by the police officer who obtained confessions from Smith and Hines describing the perpetration of the thefts. The second was a transcript of Smith's and Hines' testimony at the criminal trial of one of their alleged co-conspirators. These two documents establish that Smith and Hines regularly stole from IDC by disabling the burglar alarms and misusing the keys IDC provided to ADT.
Notwithstanding ADT's assertion to the contrary, the affidavit and trial transcript proffered admissible evidence sufficient to support summary judgment on the contract claim. Smith's and Hines' incriminating statements would be admissible at trial, either through their own testimony, or if the culprits proved to be unavailable as witnesses, as statements against interest. See Fed.R.Evid. 804(b)(3). Furthermore, either an affidavit or a certified transcript of prior testimony may provide the basis for summary judgment. 6 Moore, Federal Practice, 56-203-204 (2d ed. 1976) and cases cited.
The affidavit and transcript establish prima facie a breach of ADT's contractual duty to provide continuous alarm service, and are opposed only by ADT's bare allegation that Smith and Hines did not commit the thefts. But a party may not avoid summary judgment by mere allegations unsupported by affidavit. Fed.R.Civ.P. 56(e). Hence, summary judgment for IDC on the contract count was proper.
IDC, of course, agrees that this summary judgment in its favor is proper, but maintains that the District Court improperly limited damages to $446.00. The District Court fully analyzed this contention before rejecting it, and we need not repeat that analysis, which we think is correct.
We turn next to the counts of the complaint sounding in tort. The District Court concluded that the defendant ADT was not liable on the theory of respondeat superior and granted summary judgment accordingly. We agree that ADT would not be vicariously liable. However we reverse because ADT may be directly liable under another theory: negligent supervision of its employees.
We first consider IDC's argument that ADT is liable on the theory of respondeat superior. IDC argues that ADT should be...
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