Jordan v. Medley, 82-1577

• Decision Date: 14 June 1983
• Docket Number: No. 82-1577,82-1577
• Citation: 228 U.S. App. D.C. 425,711 F.2d 211
• Parties: , 13 Fed. R. Evid. Serv. 1023 Estelle JORDAN, et al. v. Lawrence MEDLEY, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 211

711 F.2d 211

228 U.S.App.D.C. 425, 13 Fed. R. Evid. Serv. 1023

Estelle JORDAN, et al. v. Lawrence MEDLEY, et al., Appellants.

No. 82-1577.

United States Court of Appeals, District of Columbia Circuit.

Argued March 16, 1983.

Decided June 14, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-01757).

Dwight D. Murray, Washington, D.C., with whom David P. Durbin, Washington, D.C., was on the brief, for appellants.

Audrey F. Gorman, Washington, D.C., with whom Edward J. Gorman, Jr., Washington, D.C., was on the brief, for appellees.

Before MIKVA, EDWARDS and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

The appeal in this diversity case is taken from the district court judgment entered upon a jury verdict following the second trial; the first trial ended in a hung jury. The judgment awarded appellees, Estelle Jordan and William Graham, compensatory damages totalling $11,500, and punitive damages totalling $22,500, against appellants Kathleen and J.M. Medley, and their son, Larry, on claims of assault and intentional infliction of emotional distress. The claims rest upon the allegation that Larry Medley, while acting within the scope of his employment by Mr. and Mrs. Medley, brandished a loaded semi-automatic rifle at appellees during an argument concerning a rental increase on Mrs. Jordan's apartment. We consider three questions: (1) whether the trial court erred in instructing the jury that Larry Medley was acting within the scope of his employment at the time of the incident; (2) whether there was sufficient evidence of participation, authorization or ratification to support an award of punitive damages against Mr. and Mrs. J.M. Medley; and (3) whether Larry Medley's deposition statement that he had been charged with criminal assault in connection with the incident was properly admitted at trial.

Mrs. Jordan and Mr. Graham were tenants in an apartment building owned jointly by Mr. and Mrs. J.M. Medley. Larry Medley assisted his father and mother part-time with the management of the building, a job which included maintenance, repair work, response to complaints and other routine managerial chores. (Tr. 271). On the morning of the incident, Larry Medley and his father drove to the apartment building to deliver to Mrs. Jordan written notification that her rent was to be increased and to drop off William Ford, another employee, to cut the grass. (Tr. 280). Mr. Medley and Larry Medley delivered the notification to Mrs. Jordan, who took it inside her apartment to read. (Tr. 9). Within moments, she returned to her porch and began to question Mr. Medley about whether a mistake had been made, claiming they had earlier agreed to a rental increase below that reflected in the notification. The manner of her questioning--whether polite or bellicose--was disputed (Tr. 281-82). In any case, the elder Medley did not respond much if at all. (Tr. 85; 282). Instead, there followed a heated exchange between Larry Medley and Mrs. Jordan, including a fair amount of profanity and name-calling on both sides. At some time during the exchange, Mrs. Jordan tore up the notice and, depending upon whose testimony is believed, either dropped the pieces to the ground (Tr. 11; 85; 358), or threw them in the elder Medley's face. (Tr. 282; 400). Soon after, Larry Medley and his father left the premises.

In about an hour, they returned to pick up Mr. Ford. Mrs. Jordan emerged from her apartment to rekindle the argument, this time accompanied by her nephew and his German shepherd-collie. (Tr. 92; 146). In the course of this second exchange, Mr. Medley pointed his finger at Mrs. Jordan, uttering words to the effect that she should get back in her apartment and shut up. (Tr. 17; 291). Again depending on whose testimony is believed, Mrs. Jordan pushed his finger away (Tr. 17; 105) or slapped it until "it hurt," (Tr. 401) and smacked him in the face (Tr. 291). At this, Larry Medley took his father by the arm and walked him back to their truck, which was parked behind the apartment building. There, he took from its carrying case a semi-automatic rifle that had been left in the truck, and loaded it with one clip of ammunition. He returned to the steps of Mrs. Jordan's apartment, where he took up the argument with Mrs. Jordan (who was soon joined by appellee Graham (Tr. 199)), in the presence of other residents of the apartment building. There was conflicting evidence on whether he ever actually brandished the rifle or pointed it at appellees or any of the bystanders. (Tr. 295; 336; 348; 377). In any event a neighbor, having observed his return from the truck with the rifle, had telephoned the police. (Tr. 22; 233). The police arrived in a short time, and arrested Larry Medley.

I. J.M. and KATHLEEN MEDLEY Scope of Employment

The doctrine of respondeat superior makes an employer liable for those torts of his employees committed within the scope of their employment. According to the District of Columbia courts:

To be within the scope of employment, the conduct of the servant must be of the same general nature as that authorized or incidental to the conduct authorized.

Presley v. Commercial Credit Corp., 177 A.2d 916, 918 (D.C.Mun.App.1962) (footnote omitted); accord, District of Columbia v. Davis, 386 A.2d 1195, 1203 (D.C.App.1978).

In cases such as this, where the employee's action is alleged to involve an intentional tort, incidental to the conduct authorized, the law of the District of Columbia is less than entirely clear. In 1977 we found the rule to be as follows:

In the District of Columbia, " '[u]nless an assault, or other tort, is actuated in part at least by a purpose to serve a principal, the principal is not liable.' "

International Distributing Corp. v. American District Telephone Co., 186 U.S.App.D.C. 305, 308, 569 F.2d 136, 139 (1977), quoting from Meyers v. Nat'l Detective Agency, 281 A.2d 435, 437 (D.C.App.1971), quoting in turn from M.J. Uline Co. v. Cashdan, 84 U.S.App.D.C. 58, 59, 171 F.2d 132, 133 (1948). In more recent cases, however, the District of Columbia Court of Appeals has noted with apparent approval a "trend ... to extend liability for intentional torts to situations where the employment provides a 'peculiar opportunity and ... incentive for ... loss of temper.' " Penn Central Transportation Co. v. Reddick, 398 A.2d 27, 31 (D.C.App.1979), quoting from W. Prosser, LAW OF TORTS § 70 at 466 (4th ed. 1971).

It is possible (as the excerpt from Prosser apparently intends) to apply this "foreseeability" principle as a substitute for the requirement of intent to further the employer's business. It is also possible, however, to use it not for that purpose but rather for the purpose of liberalizing only the second independent requirement for vicarious liability--viz., that the tort committed with the intent to further the employer's business also be at least "incidental" to conduct that the employer has authorized. (Quite obviously, a bank teller who shoots a bank examiner with the intent of serving his employer's interest does not impose liability upon his principal, no matter how much the act was meant to further the bank's interest.) Thus, those sorts of altercations that are foreseeable are ipso facto "incidental to authorized conduct"--though it is still a condition of employer liability that the employee be actuated, at least in part, by a desire to serve his principal's interest. It is in the latter sense that this court (interpreting D.C. law) has applied the foreseeability principle. Compare Lyon v. Carey, 174 U.S.App.D.C. 422, 424, 533 F.2d 649, 651 (1976), with International Distributing Corp. v. American District Telegraph Co., 186 U.S.App.D.C. 305, 308, 569 F.2d 136, 139 (1977).

We think that the D.C. Court of Appeals cases subsequent to our opinion in International Distributing Corp. seek to use the foreseeability principle in the same fashion--though the latest of them is somewhat ambiguous. Thus, in Penn Central, supra, even while endorsing the foreseeability "trend" described by Prosser, the D.C. court reaffirmed that "[t]he employer will not be held liable for those 'willful acts, intended by the agent only to further his own interest, not done for the [employer] at all.' " 398 A.2d at 31, quoting from Nelson v. American-West African Line, Inc., 86 F.2d 730, 731 (2d Cir.1936), cert. denied, 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873 (1937). And in Waldon v. Covington, 415 A.2d 1070, 1074 n. 13 (D.C.App.1980), it again asserted that vicarious liability for an intentional tort requires that " 'the master's affairs were being furthered by the employee's conduct' ", quoting from Penn Central, supra, 398 A.2d at 30. The D.C. court's most recent case, Johnson v. Weinberg, 434 A.2d 404 (D.C.App.1981), contains language that seems more compatible with an approach that would substitute foreseeability for intent to further the employer's business; ¹ but that is arguably inconsistent with other language of the opinion ² and unquestionably inconsistent with the opinion's strong reliance upon our decisions in Lyon v. Carey and International Distributing Corp., supra. In a case decided last June, well after publication of the Johnson opinion, we reaffirmed our holding in International Distributing Corp. that under D.C. law "foreseeability must be combined with a purpose to further the employer's interest." Hoston v. Silbert, 681 F.2d 876, 880 (D.C.Cir.1982). That opinion did not cite Johnson, but we see no reason to depart from its conclusion.

In accordance with the above-described principle of D.C. law, the crux of J.M. and Kathleen Medley's defense at trial was that, although they were Larry Medley's employers, they were not liable for his conduct because it was motivated not by a business but by a personal interest. They moved on this ground for a directed verdict at the close both of the...