Nichols v. Land Transport Corp.

• Decision Date: 09 November 1999
• Docket Number: No. Civ. 98-227-B.,Civ. 98-227-B.
• Citation: 103 F.Supp.2d 25
• Parties: Robert F. NICHOLS, II and Rachel Nichols, Plaintiffs v. LAND TRANSPORT CORP. and Oscar Gonzalez, Defendant.
• Court: U.S. District Court — District of Maine

103 F.Supp.2d 25

Robert F. NICHOLS, II and Rachel Nichols, Plaintiffs v. LAND TRANSPORT CORP. and Oscar Gonzalez, Defendant.

No. Civ. 98-227-B.

United States District Court, D. Maine.

November 9, 1999.

Graydon Stevens, R. Terrance Duddy, Kelly, Remmel & Zimmerman, Portland, ME, for plaintiffs.

Steven J. Mogul, Gross, Minsky, Mogul & Singal, Bangor, ME, for Land Transport Corp. Carl F. Rella, Law Office of Carl F. Rella, Bangor, ME, for Oscar Gonzalez.

ORDER¹

BEAULIEU, United States Magistrate Judge.

This is an action brought by Plaintiffs against Oscar Gonzalez ("Gonzalez") and his former employer, Land Transport Corporation ("Land Transport"), for injuries suffered by Plaintiff Robert Nichols ("Nichols") as a result of a dispute with Gonzalez that culminated with Gonzalez stabbing Nichols. Before the Court is Land Transport's Motion for Summary Judgment on Plaintiffs' claim that Land Transport is vicariously liable for the Gonzalez's actions.² For reasons stated below, the Court GRANTS Land Transport's Motion.

Summary Judgment Standard

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court views the record on summary judgment in the light most favorable to the nonmovant. Levy v. FDIC, 7 F.3d 1054, 1056 (1st Cir.1993). "A trialworthy issue exists if the evidence is such that there is a factual controversy pertaining to an issue that may affect the outcome of the litigation under the governing law, and the evidence is `sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.'" De-Jesus-Adorno v. Browning Ferris Ind. Of Puerto Rico, 160 F.3d 839, 841-42 (1st Cir.1998) (quoting National Amusements v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995)).

Facts

Land Transport employed Oscar Gonzalez to operate a Land Transport tractor-trailer rig from September 15, 1993 to November 11, 1996. On November 11, 1996, Nichols and Gonzalez were driving west on Route 9 toward Brewer, Maine. Gonzalez tried several times to pass Nichols in no-passing zones. Angered by Gonzalez's driving, Nichols made an obscene gesture to Gonzalez on two occasions. Thereafter, Gonzalez began to tailgate Nichols for several miles and continued to try and pass him.

The two trucks then stopped at a traffic light. Nichols saw Gonzalez get out of his cab and Nichols did the same. Upon approaching Gonzalez, Nichols attacked Gonzalez with a rubber-coated chain linked cable. Nichols then grabbed Gonzalez and they fell to the ground. During the scuffle, Gonzalez got up, brandished a knife, and stabbed Nichols.

Discussion

Land Transport contends that the facts asserted by Plaintiffs are not sufficient to impose vicarious liability on Land Transport. Maine applies the provisions of the Restatement (Second) of Agency to determine the limits of imposing vicarious liability on an employer. McLain v. Training and Development Corp., 572 A.2d 494, 497 (Me.1990). The Restatement provides that a master may be vicariously liable when the agent's conduct was within the scope of employment, Restatement (Second) of Agency § 228 (1958), and also provides that in certain situations liability attaches to the master even when the agent acts outside the scope of employment. Id. § 219 We address each possibility below.

A. Scope of Employment

The general contours regarding what is within the scope of employment reads as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated to the purpose of the master.

Restatement (Second) of Agency § 228. This general rule regarding the scope of employment is followed by further sections and commentary delineating when, and when not, an agent's conduct is within the scope of employment. As Judge Carter succinctly explained:

Section 230 of the Restatement (Second) of Agency clarifies that "an act, although forbidden, or done in a forbidden manner, may be within the scope of employment." Similarly, section 231 of the Restatement (Second) states that "an act may be within the scope of employment although consciously criminal or tortuous." Finally, "acts relating to work and done in the workplace during hours are within the scope, see id. §§ 232-33, while intentional wrongdoing is outside it, see id. § 231, and the motivation of the employee (to serve the master's interests or his own) is often an important element, see id. §§ 235-36." Lyons v. Brown, 158 F.3d 605, 609 (1st Cir.1998). Thus, actions that are done with a private, rather than a work-related, purpose to commit wrongdoing are outside of the scope of employment and render the motivation of the employee, in performing the act at issue a crucial, immunity-related fact.

Bergeron v. Henderson, 47 F.Supp.2d 61, 65-66 (D.Me.1999).

The second requirement in Section 228 requires that the conduct of the agent occur within the authorized time and space limits. This requirement relates directly to the foreseeability of the agent's act, and establishes the simple principle that the master should not be held responsible for the agent's conduct when that conduct is outside the contours of the employment relationship. Plaintiff cites a number of cases for the proposition that Gonzalez's actions could be found to be within the scope of employment. However, as Land Transport correctly points out, in those cases cited by Plaintiffs the assault occurred within the contours of the employment relationship. Roberson v. Bethlehem Steel Corp., 912 F.2d 184, 186-188 (7th Cir.1990) (employee-foreman assaults plaintiff-customer at foreman's place of business); B.F. Goodrich Tire Co. v. Lyster, 328 F.2d 411, 416-417 (5th Cir.1964) (employee-manager assaults customer at employee's place of business); Hobart v. Cavanaugh, 353 Mass. 51, 228 N.E.2d 439 (1967) (employee-truck driver assaults gas attendant where employee was designated to pick up the truck).

Unlike the cases cited above, the Court is satisfied that when Gonzalez left his cab to confront Nichols he acted outside the physical space in which he was authorized to be as an agent for Land Transport. Gonzalez was not authorized to leave his cab for this purpose, and by doing so it is clear he was motivated to serve his personal interests, rather than those of Land Transport.

Another pertinent section of the Restatement for our purposes is section 231. That section states that even though an agent's act may be criminal, it could still be within the scope of employment. Restatement (Second) of Agency § 231. The comment of the section expands upon the general principle by stating the following:

The fact that the servant intends a crime, especially if the crime is of some magnitude, is considered in determining whether or not the act is within the employment, since the master is not responsible for acts which are clearly inappropriate or unforeseeable in the accomplishment of the authorized conduct. The master can reasonably anticipate that servants may commit minor crimes in the prosecution of the business, but serious crimes are not only unexpectable but in general are in nature different from what servants in a lawful occupation are expected to do.

Restatement (Second) of Agency § 231, cmt. (a).

The drafters of the Restatement provide two examples to illustrate when...