Rausch v. POCATELLO LUMBER COMPANY, INC.

• Decision Date: 16 November 2000
• Docket Number: No. 24782.,24782.
• Parties: Robert Brent RAUSCH, Plaintiff-Appellant, v. POCATELLO LUMBER COMPANY, INC., dba Wall 2 Wall Carpet Company, Defendant-Respondent.
• Court: Idaho Court of Appeals

14 P.3d 1074

135 Idaho 80

Robert Brent RAUSCH, Plaintiff-Appellant, v. POCATELLO LUMBER COMPANY, INC., dba Wall 2 Wall Carpet Company, Defendant-Respondent.

No. 24782.

Court of Appeals of Idaho.

November 16, 2000.

Christ T. Troupis, Meridian, for appellant.

Racine, Olson, Nye, Budge & Bailey, Pocatello, for respondent. Gary L. Cooper argued.

LANSING, Judge.

This is an action against defendant Pocatello Lumber Company, Inc., d/b/a Wall 2 Wall Carpet Co. (Wall2Wall), arising from injuries sustained by plaintiff Robert Brent Rausch when a Wall2Wall employee jokingly pulled a chair out from under Rausch. Rausch alleged two legal theories upon which he sought recovery from Wall2Wall: he alleged that Wall2Wall was liable on the basis of respondeat superior for the misconduct of its employee and that Wall2Wall was also liable on the basis of its negligent supervision of the employee. The district court granted summary judgment on the respondeat superior claim, and a jury trial was conducted on the claim of negligent supervision, with the jury returning a verdict in favor of Wall2Wall. Rausch now appeals, urging that the court erred in granting summary judgment on the respondeat superior theory and also incorrectly instructed the jury on the negligent supervision claim.

FACTS AND PROCEDURAL HISTORY

Rausch, working as an independent contractor, installed carpet for Wall2Wall. His injury occurred while he was on the Wall2Wall premises to receive work orders. Bill Sargeant, who was employed by Wall2Wall as a carpet cutter, pulled a chair out from under Rausch as Rausch started to sit down. The resulting fall caused Rausch to sustain serious injuries. Prior to this event, there had been other instances of "horseplay" by Sargeant which included grabbing Rausch around the neck, pushing him into walls and punching or grabbing him in the groin. Rausch had complained about this behavior several times to the Wall2Wall management. The assistant manager of Wall2Wall acknowledged that Sargeant had exhibited this behavior long before Rausch's injury, that the assistant manager knew it was occurring, and that he expected it would eventually result in injury.

Rausch brought an action against Wall2Wall, pleading two tort theories; he alleged that Wall2Wall was vicariously liable for the tortious act of its employee (the respondeat superior theory) and that Wall2Wall was also liable on the basis of its negligent supervision of Sargeant. Prior to trial, the district court granted Wall2Wall's motion for summary judgment on the respondeat superior claim, and the case proceeded to a jury trial on the cause of action for negligent supervision.

At the conclusion of the trial evidence, but before the jury was instructed, Rausch requested that the district court reconsider the summary judgment on the respondeat superior claim in light of the evidence presented at trial. The district court declined to alter its prior decision. The jury returned a verdict in favor of Wall2Wall. Rausch made a motion for a new trial, which was denied. Rausch now appeals alleging that the district court erred in granting Wall2Wall's summary judgment motion on the respondeat superior claim and that the district court gave erroneous instructions and an erroneous special verdict form to the jury.

ANALYSIS

A. Partial Summary Judgment

The district court granted summary judgment on the respondeat superior claim on the basis that Rausch was unable to show that Sargeant's act of moving the chair was within the scope of his employment as a carpet cutter. On appeal, Rausch contends this decision was erroneous because there were material issues of fact relevant to whether Sargeant's actions were within the scope of his employment.

Our review of the district court's ruling on a motion for summary judgment is the same as that required of the district court when ruling on the motion. Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994). Summary judgment may be entered only if "the pleadings, depositions, 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 judgment as a matter of law." Idaho Rule of Civil Procedure 56(c). See also Avila v. Wahlquist, 126 Idaho 745, 747, 890 P.2d 331, 333 (1995); Idaho Bldg. Contractors Ass'n v. City of Coeur d'Alene, 126 Idaho 740, 742, 890 P.2d 326, 328 (1995). On review, this Court liberally construes the evidence in favor of the party opposing the motion and draws all reasonable inferences and conclusions in that party's favor. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 869 P.2d 1365 (1994). If reasonable persons could reach different findings or draw conflicting inferences from the evidence, the motion should be denied. Id. at 272, 869 P.2d at 1367. However, if the evidence reveals no disputed issues of material fact, then only a question of law remains over which this Court exercises free review. Roell v. Boise City, 130 Idaho 199, 200-01, 938 P.2d 1237, 1238-39 (1997).

An employer may be vicariously liable for the tortious actions of an employee through the doctrine of respondeat superior. Under this doctrine, "an employer or master is responsible for the torts of its employee or servant when the torts are committed within the scope of the employee's or servant's employment." Podolan v. Idaho Legal Aid Services, Inc., 123 Idaho 937, 944, 854 P.2d 280, 287 (Ct.App.1993). See also Adams v. Krueger, 124 Idaho 74, 76, 856 P.2d 864, 866 (1993); Holve v. Draper, 95 Idaho 193, 195, 505 P.2d 1265, 1267 (1973); Bettinger v. Idaho Auto Auction, Inc., 128 Idaho 327, 330, 912 P.2d 695, 698 (Ct.App.1996); W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 70, at 502 (5th ed.1984). The Idaho Supreme Court recently addressed the standards for evaluating whether an employee's act is within the scope of his or her employment:

[I]f the employee's purpose is purely personal, it does not matter that the employee is using the employer's tools or driving the employer's vehicle or some other activity that merely resembles his or her employment. The employee must be engaged in some type of work that is assigned to him or her in the general sense of doing something to serve the employer.

....

[I]t is apparent that serving the "master" is required in order for the conduct to be within the scope of employment.

Richard J. and Esther E. Wooley Trust v. DeBest Plumbing Inc., 133 Idaho 180, 184, 983 P.2d 834, 838 (1999). The Idaho Court of Appeals in Podolan defined the "scope of employment" as encompassing:

those acts which are so closely connected with what the servant is supposed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment.

... [I]n general the servant's conduct is within the scope of his employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the master.

... An employee's purpose or intent, however misguided in its means, must be to further the employer's business interests. If the employee acts from "purely personal motives ... in no way connected with the employer's interest" ... then the master is not liable.

Podolan, 123 Idaho at 944-45, 854 P.2d at 287-88 (quoting Birkner v. Salt Lake County, 771 P.2d 1053, 1056-57 (Utah 1989)) (citations omitted).

We find that relatively few courts have addressed whether pranks or horseplay at the workplace fall within the scope of the prankster's employment. Those jurisdictions that have considered the issue appear to be uniform in holding that if the prank or play is itself a part of the employee's duties or could be viewed as a means, even if ill-advised, of advancing the employer's interests, the act will be deemed within the scope of employment; but if the prank is a purely personal act for personal motives or whims and could in no way be said to be serving the employer, then the prank is outside the scope of employment. See, e.g., Lane v. Safeway Stores, Inc., 33 Cal.App.2d 169, 91 P.2d 160 (1939) (store clerk's reciprocal act of rough play with child customer, which caused customer to fall, held not part of or connected with the transaction of employer's business); Sands v. Ivy Liquors, Inc., 192 So.2d 775 (Fla.Dist.Ct. App.1966) (horseplay during which gun accidentally discharged might have been included in store manager's duties to socialize with customers to stimulate business); Gaylor v. Jay & Gene's Chrysler-Plymouth-Dodge Inc., 183 Ga.App. 255, 358 S.E.2d 655 (1987) (testimony that sales manager engaged in finger wrestling with sales staff as a method of keeping a rapport with the sales staff and keeping them motivated raised factual issue as to whether sales manager was acting within the scope of his employment); DuPree v. Babcock, 100 Ga.App. 767, 112 S.E.2d 415 (1959) (where employee's duties included entertaining the customers, firing blanks from a dummy machine gun as part of the entertainment was within the scope of employment); Hollinger v. Jane C. Stormont Hosp. & Training Sch. for Nurses, 2 Kan.App.2d 302, 578 P.2d 1121 (1978) (janitor's prank of yanking a newspaper from the plaintiff's newspaper bag could not have been incidental to his employment but was for a purpose personal to him); Creamer v. Kroger Grocery & Baking Co., 260 Ky. 544, 86 S.W.2d 288 (1935) (store clerk's playfully brandishing pistol, which accidentally discharged during banter with customer, not within the scope of employment); Sullivan v. Crowley, 307 Mass. 189, 29 N.E.2d 769 (1940) (bartender, in lighting a fire under foot of sleeping patron, was not acting in the interest of or for the benefit of the employer); Priest v. F.W. Woolworth Five & Ten Cent Store, 228 Mo. App. 23, 62 S.W.2d 926 (1933) (...