Phillips v. RESTAURANT MANAGEMENT

• Decision Date: 18 September 2001
• Docket Number: No. COA00-411.,COA00-411.
• Citation: Phillips v. RESTAURANT MANAGEMENT, 146 N.C. App. 203, 552 S.E.2d 686 (N.C. App. 2001)
• Court: North Carolina Court of Appeals
• Parties: Chris T. PHILLIPS, Plaintiff, v. RESTAURANT MANAGEMENT OF CAROLINA, L.P., a Delaware Limited Partnership, Taco Bell Corp., a California Corporation, and Jason Paul Jones, Defendants.

552 S.E.2d 686

146 NC App. 203

Chris T. PHILLIPS, Plaintiff, v.RESTAURANT MANAGEMENT OF CAROLINA, L.P., a Delaware Limited Partnership, Taco Bell Corp., a California Corporation, and Jason Paul Jones, Defendants.

No. COA00-411.

Court of Appeals of North Carolina.

September 18, 2001.

Long, Parker, Warren & Jones, P.A., by Steve Warren, Asheville, for plaintiff-appellant.

Smith Helms Mulliss & Moore, L.L.P., by Robert R. Marcus, Greensboro, for defendants-appellees.

WYNN, Judge.

While on duty for the North Carolina Highway Patrol, Trooper Chris T. Phillips stopped to order food from the drive-through window of a Taco Bell restaurant in Black Mountain, North Carolina.Restaurant Management of Carolina, L.P. owned and operated the restaurant under a franchise agreement with Taco Bell Corp.Apparently recognizing that the trooper had ordered food, an employee of the restaurant, Jason Paul Jones, spat in the trooper's food before serving it to him.Shortly thereafter, while consuming the food, the trooper noticed a substance on the food that appeared to be human saliva.He returned immediately to the restaurant and spoke to the shift manager, who denied any knowledge of the incident.Nonetheless, the trooper reported the incident to the local police department and to his supervisor.A State Bureau of Investigation laboratory report later confirmed the presence of human saliva in the food.Two days later, Jones revealed to his shift supervisor that he spat in the trooper's food because he had been "harassed" by local police officers for skateboarding and thought the trooper-customer could have been one of those officers.

The trooper brought actions against Jones, Restaurant Management and Taco Bell for: (1) Breach of implied warranty of merchantability; (2) Intentional infliction of emotional distress; (3) Gross negligence; and (4) Punitive damages.Following responsive pleadings and discovery, the trial court granted summary judgment in favor of Restaurant Management and Taco Bell.The trooper now appeals to us.

Conspicuously, the summary judgment order in this case disposed of fewer than all claims brought by the trooper—the claims against Jones remain; ordinarily, such an order is interlocutory and not immediately appealable.Veazey v. Durham,231 N.C. 357, 361-62, 57 S.E.2d 377, 381(1950).However, pertinent to this appeal, N.C. Gen.Stat. § 7A-27(d)(1999) permits an appeal from an interlocutory order that affects "a substantial right which may be lost or prejudiced if not reviewed prior to final judgment."Dalton Moran Shook Inc. v. Pitt Development Co.,113 N.C.App. 707, 710, 440 S.E.2d 585, 588(1994).On appeal, the trooper contends that his claims against Restaurant Management and Taco Bell involve issues of fact common to his claims against Jones and that if this appeal is dismissed as interlocutory, separate trials will be required to determine the same factual issues.We agree with him.SeeGreen v. Duke Power Co.,305 N.C. 603, 608, 290 S.E.2d 593, 596(1982)("[T]he right to avoid the possibility of two trials on the same issues can be ... a substantial right" that permits an appeal of an interlocutory order when there are issues of fact common to the claim appealed and remaining claims)(internal citations omitted).Accordingly, we address the merits of the trooper's claims against both Restaurant Management and Taco Bell.

I.Restaurant Management

A.Vicarious Liability

The trooper first argues that the record shows a genuine issue of fact as to the vicarious liability of Restaurant Management for the acts of its employee, Jones.SeeN.C. Gen.Stat. § 1A-1,Rule 56(c)(1999)(Summary judgment is inappropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show a genuine issue as to any material fact).We agree.

The parties in this appeal contend that the following language from our Supreme Court's decision in Wegner v. Delicatessen,270 N.C. 62, 153 S.E.2d 804(1967), controls the outcome of this issue:

If the servant was engaged in performing the duties of his employment at the time he did the wrongful act which caused the injury, the employer is not absolved from liability by reason of the fact that the employee was also motivated by malice or ill will toward the person injured, or even by the fact that the employer had expressly forbidden him to commit such act.

Id. at 66, 153 S.E.2d at 807-08.In Wegner, the food patron sat down and asked the restaurant's bus boy to remove some dirty dishes from the table.The bus boy, whose "job was to collect and remove dishes, carry trays, and the like," removed the dirty dishes as well as a clean glass from the table, prompting the food patron to ask for a clean, fresh glass.Id. at 68, 153 S.E.2d at 809.Minutes later, the bus boy returned and slammed a clean glass onto the table.Following a verbal exchange, the bus boy "asked the [food patron] if he wanted his eyes cut out," to which the food patron did not respond.Id. at 64, 153 S.E.2d at 806.Later, when the food patron started to leave the restaurant, the bus boy punched and kicked him.

In reviewing the trial court's judgment of nonsuit in favor of the restaurant, our Supreme Court in Wegner held that "[w]hatever the source of his animosity toward the [food patron] may have been, he did not strike the [food patron] as a means or method of performing his duties as bus boy."Id. at 68, 153 S.E.2d at 809.The Court concluded that the bus boy's assault of the food patron could not "be deemed an act of his employer[.]"Id.Moreover, pertinent to the outcome of this appeal, the Court instructively stated that:

A different situation would be presented if the glass which he"slammed down" upon the table had shattered and injured the plaintiff, for there the employee would have been performing an act which he was employed to do and his negligent or improper method of doing it would have been the act of his employer in the contemplation of the law.

Id.Cf.Medlin v. Bass,327 N.C. 587, 593, 398 S.E.2d 460, 463(1990)("Where the employee's actions conceivably are within the scope of employment and in furtherance of the employer's business, the question is one for the jury");Edwards v. Akion,52 N.C.App. 688, 698, 279 S.E.2d 894, 900, aff'd,304 N.C. 585, 284 S.E.2d 518(1981)("When there is a dispute as to what the employee was actually doing at the time the tort was committed, all doubt must be resolved in favor of liability and the facts must be determined by the jury.")

In the instant case, we hold that there is at least a genuine issue of material fact as to whether Jones's acts were within the scope of his employment and in furtherance of Restaurant Management's business.The record shows that when he spat into the trooper's food, he was in the act of performing his job of preparing that food for the trooper.His concealed act of spitting into food while preparing it related directly to the manner in which he carried out his job duty of preparing the food for consumption by the customer.Indeed a jury could determine that his act of spitting in the trooper's food was done within the scope of his employment.We see no distinction between the instant case and the situation envisioned by our Supreme Court in Wegner, where a bus boy slams down a glass, such that the glass shatters and injures a customer.In such a situation, as here, "the employee would have been performing an act which he was employed to do and his negligent or improper method of doing it would have been the act of his employer in the contemplation of the law."Wegner,270 N.C. at 68,153 S.E.2d at 809.Accordingly, we conclude that the trial court erred in granting summary judgment as to the issue of Restaurant Management's vicarious liability for Jones's conduct.

B.Ratification

The trooper next argues that Restaurant Management ratified Jones's acts and therefore the trial court erred in granting summary judgment in its favor.We disagree.

In Hogan v. Forsyth Country Club Co.,79 N.C.App. 483, 492, 340 S.E.2d 116, 122, disc. review denied,317 N.C. 334, 346 S.E.2d 140(1986), this Court held that:

In order to show that the wrongful act of an employee has been ratified by his employer, it must be shown that the employer had knowledge of all material facts and circumstances relative to the wrongful act, and that the employer, by words or conduct, shows an intention to ratify the act.

In addition, "[t]he jury may find ratification from any course of conduct on the part of the principal which reasonably tends to show an intention on his part to ratify the agent's unauthorized acts."Brown v. Burlington Industries, Inc.,93 N.C.App. 431, 437, 378 S.E.2d 232, 236, (1989), disc. review improvidently allowed,326 N.C. 356, 388 S.E.2d 769(1990)(citation omitted)."Such course of conduct may involve an omission to act."Id.Moreover, although the employer must have knowledge of all material facts relative to its employee's acts in order to effect ratification,

[i]f the purported principal is shown to have knowledge of facts which would lead a person of ordinary prudence to investigate further, and he fails to make such investigation, his affirmance without qualification is evidence that he is willing to ratify upon the knowledge which he has.

Restatement (Second) of Agency§ 91, Comment e, p. 235(1958).AccordEquipment Co. v. Anders,265 N.C. 393, 401, 144 S.E.2d 252, 258(1965)(citation omitted)("[W]hen [a principal] has such information that a person of ordinary intelligence would infer the existence of the facts in question, the triers of fact ordinarily would find that he had knowledge of such fact").

In this case, the trooper argues that the evidence presents an issue of fact as to whether Restaurant Management ratified the acts of Jones because (1) a co-employee knowingly delivered the contaminated food to the trooper, (2) the shift...