Lee v. Regal, Inc.
| Decision Date | 24 January 2008 |
| Docket Number | 2008-UP-071 |
| Parties | Robert E. Lee, Respondent, v. Regal, Inc., d/b/a Diamonds, and Edward Bell, a/k/a Eddie Bell, Defendants, Of whom Regal, Inc., d/b/a Diamonds, is the Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted January 1, 2008
Appeal From Charleston County Mikell R. Scarborough, Master In Equity
John F. Martin, of Charleston, for Appellant.
Kerry W. Koon and Philip A. Middleton, both of Charleston, for Respondent.
In this tort action, Regal, Inc. (Regal) appeals the trial court's order finding Regal liable for the assault of Robert E. Lee by one of Regal's employees. We affirm. [1]
At the time of the incident on March 28, 1996, Robert E. Lee (Lee) was married to Jennifer Diane Lee (Jennifer) and had two small children. Lee was a carpenter who generally depended on government contracts for work. However, approximately six months prior to March 28, Lee faced difficulty with his primary employer and was no longer receiving work from the government. Due to the strain on the family's budget resulting from Lee's inability to find work, Jennifer decided to seek employment in the adult entertainment industry. Subsequently, Jennifer became employed by Diamonds Gentlemen's Club (Diamonds), located on Pittsburg Avenue in Charleston, South Carolina. [2]
Diamonds has standard procedures regarding exotic dancers and requires each dancer disrobe by the third song of a three song set when the exotic dancer is performing.” However Jennifer refused to follow the procedure and was suspended from her employment on March 27, 1996. Despite her suspension, Lee took Jennifer to work the next evening. When Jennifer entered the club, the assistant manager told her she had been fired and must leave the premises. Consequently Jennifer waited for [Lee] to return to their home in Summerville and called him and told him what happened and asked him to come pick her up.” Upon hearing of Jennifer's dismissal, Lee called Diamonds and asked to speak with Eddie Bell, the club manager. Following a heated discourse over the phone, Lee drove to Diamonds to pick up Jennifer.
After arriving at Diamonds, Lee told the assistant managers waiting at the entrance he wished to speak to Bell. In response, [Lee] was told on several occasions [Bell] would not speak with him, and further, it was inferred it would be unsafe for him to talk to [Bell].
Subsequently, Lee brought an action against Regal and Bell, asserting Bell assaulted him in the course of Regal's business. At trial, Regal maintained Bell was acting outside the scope of his employment, and thus, Regal was not liable for the assault. Despite Regal's contention, the trial court ruled in favor of Lee finding (1) Bell was an employee of Regal; (2) Bell committed an assault upon Lee; (3) Bell was performing the business of Regal at the time of the assault; and (4) Lee's injuries were a direct and proximate result of the assault of [Regal's] employee, [Bell].” The trial court further concluded Regal was liable for Bell's assault under the doctrine of respondeat superior and awarded Lee the sum of $116, 000 damages, both actual and punitive, plus costs. [3] This appeal followed.
When ruling on a directed verdict motion, the trial court is required to view the evidence and the inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. Sabb v. S.C. State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002). This court must follow the same standard. Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000). Accordingly, this court will only reverse the trial court when no evidence supports the trial court's ruling. Steinke v. S.C. Dep't of Labor, Licensing, & Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999).
Regal argues the trial court erred by failing to grant a directed verdict upon the dismissal of Regal's co-defendant, Bell. We disagree.
Regal was sued under a respondeat superior theory by which an employer is made liable for the acts of an employee acting within the scope of his employment. To maintain this action, it is not necessary to sue both the employer and employee. However, when a principal and servant are sued together, a principal is not responsible for punitive damages under respondeat superior when the agent was exonerated from liability.” Austin v. Specialty Transp. Servs., 358 S.C. 298, 319, 594 S.E.2d 867, 878 (Ct. App. 2004). In the case sub judice, Bell was dismissed as a party to the case, but was not exonerated from liability. [4] Accordingly, we find the trial court did not err in refusing to grant Regal a directed verdict upon Bell's dismissal from the case.
Regal also argues the trial court erred in failing to grant a directed verdict in favor of Regal because Bell was not acting within the course and scope of his employment at the time of the incident. We disagree.
As indicated, under the doctrine of respondeat superior, an employer is liable for the acts of an employee acting within the scope of employment. S.C. Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 179, 348 S.E.2d 617, 621 (Ct. App. 1986). In Jamison v. Howard, 271 S.C. 385, 388-91, 247 S.E.2d 450, 451-53 (1978), appeal after remand, 275 S.C. 344, 271 S.E.2d 116 (1980), a majority of the supreme court rejected the Restatement approach in favor of the test applied in Jones v. Elbert, 211 S.C. 553, 34 S.E.2d 796 (1945). Under the Jones test, finding the particular act creating liability was within the servant's authority is unnecessary. Nor must the act have been made for the purpose of performing the work the servant was employed to do. According to the Jones court, [i]f the servant is doing some act in furtherance of the master's business, he will be regarded as acting within the scope of his employment, although he may exceed his authority.” 211 S.C. at 558, 34 S.E.2d at 798-99 (quoting Cantrell v. Claussen's Bakery, 172 S.C. 490, 174 S.E. 438, 440 (1934). However, if the servant acts for some independent purpose of his own, wholly disconnected with the furtherance of his master's business, his conduct falls outside the scope of his employment.” Crittenden v. Thompson-Walker Co., 288 S.C. 112, 115-16, 341 S.E.2d 385, 387 (Ct. App. 1986). Finally, if there is doubt as to whether the servant in injuring a third party was acting within the scope of his employment, the doubt will be resolved against the master, at least to the extent of requiring the question to be submitted to the jury for determination.” Id.
In Armstrong v. Food Lion, Inc., 371 S.C. 271, 639 S.E.2d 50 (2006), the court reiterated these principles and found that the employees therein were not acting within the scope of employment or in furtherance of the store's business when they attacked some customers. The Supreme Court distinguished Crittenden and Jones and noted that in those cases, the assaults occurred not only in connection with the employer's business but also with the purpose in some way to further the employer's business. Id.
Similarly, in the present case, conflicting evidence in the record supports the trial court's finding Bell acted not only in connection with the employer's business but also in furtherance thereof when he assaulted Lee. According to the record, the assault occurred near Diamonds' premises during normal working hours. Moreover, Bell testified he came to the club to prepare for a charity function and to consult with the assistant manager regarding the dismissal of Jennifer. Both of these activities were incidental to Bell's general duty as club manager to further the business of Diamonds. Thus, Bell was working in connection with Regal's business and within the scope of his employment at the time of the assault. Furthermore, Bell's relationship to Lee arose solely from his position as Diamonds' manager. Indeed, the purpose of the assault was to convince Lee and his wife to leave Diamonds' premises. Furthermore, Bell testified, it was the policy of Diamonds not to call the police but rather handle disruptions on their own.” Consequently, although Regal maintains the assault was outside the scope of Bell's authority, the trial court was presented with conflicting inferences from which it may reasonably conclude the assault was an act in furtherance of Regal's business. Accordingly, since there is a factual basis to support the court's decision, we may not substitute our judgment for that of the trial court and therefore affirm the court's determination holding Regal liable for Bell's assault on Lee.
Regal maintains the trial court erred by failing to apportion fault under the doctrine of comparative fault, by failing to apply the doctrine of mutual combat to bar Lee's claim, and by finding Regal liable under the theory of negligent employment. We find these issues are not preserved for our review.
In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial court. See Lucas v. Rawl Family Ltd. P'ship, 359 S.C 505, 511, 598 S.E.2d 712, 715 (2004); see also In re Michael H., 360...
To continue reading
Request your trial