Massie v. Godfather's Pizza, Inc., s. 86-1080

• Citation: 844 F.2d 1414
• Decision Date: 14 April 1988
• Docket Number: 86-1150,Nos. 86-1080,s. 86-1080
• Parties: Mary E. MASSIE, Plaintiff Appellee and Cross Appellant, v. GODFATHER'S PIZZA, INC., Defendant Appellant and Cross Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1414

844 F.2d 1414

Mary E. MASSIE, Plaintiff Appellee and Cross Appellant, v. GODFATHER'S PIZZA, INC., Defendant Appellant and Cross Appellee.

Nos. 86-1080, 86-1150.

United States Court of Appeals Tenth Circuit.

April 14, 1988.

Lowell V. Smith, Hanson, Dunn, Epperson & Smith, Salt Lake City, Utah, for Godfather's Pizza, Inc.

Edward B. Havas (W. Brent Wilcox, with him on the brief), Giaque & Williams, Salt Lake City, Utah, for Mary Massie.

Before SEYMOUR and BALDOCK, Circuit Judges, and BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

Mary Massie brought this negligence action against her former employer, Godfather's Pizza, claiming damages for a rape and assault she sustained during a robbery of a Godfather's Pizza restaurant in Salt Lake City, Utah, on October 5th-6th, 1983. She claimed that she was injured because of the negligence of Godfather's and its employee, James Head, who failed to comply with the demands of the robbers, contrary to company policy.

The jury returned a special verdict in favor of plaintiff for $200,000 in general damages, and an additional $36,000 in special damages. After trial the court sustained defendant's motion for remittitur, and reduced the special damage award to $10,000.

Both parties appeal from the judgment--the defendant upon various grounds, including the absence of negligence, and upon the argument that worker's compensation is plaintiff's exclusive remedy--while plaintiff appeals the trial court's action in reducing the jury award of special damages from $36,000 to $10,000.

The issues on appeal are whether or not the trial court properly denied Godfather's Motion for Judgment Notwithstanding the Verdict, whether the trial court erred in denying Godfather's Motion for New Trial, and whether the jury's damage awards were appropriate and supported by substantial evidence. In the appeal, Godfather's claims that state worker's compensation is plaintiff's exclusive remedy; that neither Godfather's Pizza nor its employees owed a duty to comply with the demands of the robbers; that the policy of Godfather's Pizza to comply with the demands of robbers did not impose a duty on its employees; that any alleged negligence on the part of Godfather's was not the proximate cause of plaintiff's injuries; that plaintiff's counsel's plea for punitive damages in his closing argument was prejudicial, and that his incorrect statement of law concerning the "coming and going rule" was prejudicial, so that a new trial is required; and finally, that the general and special damages awarded to plaintiff were excessive.

Our review of the record discloses that the evidence, viewed in the light most favorable to the plaintiff, entitled the jury to make the following findings of fact:

Plaintiff was employed by defendant Godfather's at its restaurant located at 2100 South 900 East, Salt Lake City, Utah through October 5, 1983. She worked as minimum wage "counter help", taking orders, cleaning tables and running the cash register. She had no supervisory responsibility at work and she had nothing to do with the safe that was in a back room at the restaurant. Her uniform consisted of navy blue pants, a blue and tan striped pullover shirt, and while working, an apron, hat and name tag. Neither the shirt nor the pants had the Godfather's name or logo on them.

James Head, originally hired as a cook and a dishwasher, was made a shift supervisor for Godfather's in May, 1983, at which time his wage was raised from the minimum wage of $3.35 per hour to $3.50 per hour. As a shift supervisor, Head was considered a part of the management team, who was to have a thorough working knowledge of company policies and procedures. He had all of the keys to the restaurant and he possessed the combination and key to the safe located on the premises. Management personnel, including the shift supervisor, wore a vest and tie, which signified their special position of authority. ¹

Prior to October 5, 1981, Head had been a shift supervisor for approximately six months but had not yet learned how to close out the books at the end of the evening shift.

According to Head's job description in the company manual, he was required to "maintain positive community relations at all times, both on and off the job", and he was expected "even when he was off the clock" to be representing Godfather's Pizza. (Tr. 435-436).

Carl Satchell was the manager of the Godfather's restaurant in October, 1983. He had not previously checked into Head's prior employment or Army background, and he testified that prior to October 5th, Head had "acted macho and cocky" during working hours. ² Satchell also knew that on one occasion, Head had brought a gun that was wrapped up and concealed on the Godfather premises.

Prior to October 5, 1983, plaintiff knew that there was a safe in the employee break room, and she had requested Head to get change for her on several occasions. She assumed that Head had access to the safe, although she had never actually seen him open it.

Godfather's usually closed at 11:00 p.m., but on October 5, 1983, the restaurant became busy late in the evening, causing the shift to run later than usual. Plaintiff, who was scheduled to work until closing, did not have a car at work that day. Although her husband usually picked her up after work, plaintiff made arrangements to walk home with Head after work that day, so her husband would not have to get their small son out of bed at that time of the night to come and pick her up. Plaintiff had walked home from work on many prior occasions, but not after dark.

After the last customers were served, plaintiff, Head, and Carl Satchell began cleaning up and preparing to leave. Satchell left about midnight, leaving plaintiff and Head still at work. Prior to leaving, Satchell asked plaintiff to estimate when she would finish her work so he could fill out her time card. She estimated another half hour, so Satchell "clocked her out" at 12:30 a.m. In fact, plaintiff did not complete her work in that time, and worked another 45 minutes or so beyond the time noted on her card. Plaintiff was not paid for the extra time.

While cleaning up, plaintiff observed someone pull on the locked door of the restaurant, but she did not see the individual well enough to identify him. The restaurant did not have "open" or "closed" signs on the door, and it was not unusual for people to walk by to see if the place was still open.

After their work was done, Head and plaintiff played a video game and then left the restaurant, Head locking the door behind them. They did not observe anyone around the restaurant when they left. At the time they left the store, plaintiff was wearing her dark slacks and striped shirt, covered by a long navy seater coat. Her apron was rolled up and put in her pocket, and her hat and name tag had been left at the restaurant. Head had removed his tie and wore a black jacket or vest over his clothes.

About two blocks from the restaurant they were accosted by two men, who ordered them to go back to the restaurant to get money. Head noticed that one of them had a knife in one of his pockets. Head agreed to cooperate and they walked back to the store, but Head told one of the men that he could not open the safe, although he had the knowledge and ability to do so. Head knew that there was only $500 in the safe.

On the way back, the men checked Head's wallet and asked plaintiff for her money. She had only a nickel which the men did not take. At the store, the men took Head's keys and made plaintiff unlock the restaurant. All four went in, and the men locked the door after them and kept Head's keys.

Head led plaintiff and the men around to check the tills, which were empty, and into the break room. Head and one of the men went on to the manager's office for a search for money, and then Head's hands were tied and he was returned to the break room. There, one of the men began manipulating the safe, trying to open it; Head again was asked to open the safe, but he again denied that he could do so. The men became frustrated and disgusted at their inability to get any money. One man made a statement to the effect that "if we can't get any money, we're going to get some pussy." The jury was entitled to find that this statement was made in the break room in Head's presence. ³

One of the men then took plaintiff to a different part of the restaurant, forced her to undress and raped and sodomized her. Then, the second man did likewise. During this, Head heard Mary crying and screaming. After the second assault on plaintiff began, Head finally agreed to open the safe, but not until the first man went to Head, zipped up his pants in front of him, and threatened him with a roll of cellophane wrap. After getting the money, the two men left on foot, taking plaintiff with them, and leaving Head tied up in the restaurant. Plaintiff was forced to run down an alley and over an eight foot fence, injuring her foot and both hands. She was able to escape when a policeman came into view. The men separated and ran; they were never caught.

Head told the robbers that he could not open the safe because he felt that, as a representative of Godfather's, he was left in charge of it and it was his responsibility. He told an investigator that he didn't want to lose his job, and didn't want Godfather's to lose any money.

Prior to the incident involving plaintiff, Godfather's had formulated a written policy which called for immediate compliance and cooperation in the event of a robbery. The company Manual set out procedures to be followed: (Appellant Exhibit C, Plaintiff's Brief):

"No amount of money is worth the safety and well being of Godfather's Pizza employees. The criminal is usually interested only in money and, if not provoked to any other violence, will 'take the money and run.' The real key to safety of the victim is to allow the criminal to get in and get out as...