Safeway Stores, Inc. v. Kelly

• Decision Date: 01 July 1982
• Docket Number: No. 80-474.,No. 80-659.,No. 80-686.,80-474.,80-659.,80-686.
• Citation: 448 A.2d 856
• Parties: SAFEWAY STORES, INC., Appellant, v. George I. KELLY, Appellee.
• Court: D.C. Court of Appeals

448 A.2d 856

SAFEWAY STORES, INC., Appellant, v. George I. KELLY, Appellee.

No. 80-474.

No. 80-659.

No. 80-686.

District of Columbia Court of Appeals.

Argued January 6, 1982.

Decided July 1, 1982.

William L. Fallon, Washington, D. C., with whom Arthur B. Hanson, Washington, D. C., was on the brief, for appellant.

Vincent Nappo, Washington, D. C., for appellee.

Before NEWMAN, Chief Judge, and MACK and PRYOR, Associate Judges.

PRYOR, Associate Judge:

This is an appeal from a jury finding of liability against Safeway Stores, Inc., for assault and battery, and false arrest arising from the actions of a security guard working at a Safeway grocery store. Appellant contends that it is not liable in respondeat superior for these actions and that in any event probable cause existed for the arrest of appellee.¹ Preliminarily, we hold that Safeway is vicariously liable for the actions of the guard acting within the scope of his employment. Finding probable cause for the arrest of appellee but sufficient evidence to support the jury finding of excessive force in making the arrest, we reverse the jury verdict of false arrest but affirm the verdict of assault and battery. We also affirm the trial court's grant of a remittitur.

I

One evening in February 1976, as George I. Kelly entered a Safeway store in Southeast Washington, D.C. to shop for groceries, he noticed that an automatic exit door was not working properly and that it was necessary to exert pressure on the door to push it open. According to appellee's testimony, he completed his shopping and later advised a cashier that he wanted to make a complaint about the broken door. The cashier suggested that Kelly talk to the assistant manager, Mr. Wheeler. When Kelly did so, the assistant manager responded that the door would be fixed in two or three months, and that Kelly was always making trouble for him. Kelly testified that he had never made a complaint to Mr. Wheeler before that night and also stated that the assistant manager said to him, "[B]oy, if you don't get out of this store, I'm going to have you arrested." Kelly responded, "[W]ell, call the police, I want to file a complaint." He explained that it was unclear to him that the assistant manager was directing him to leave the store. Holding his bag of groceries, Kelly stood in the front of the store to await the police. The assistant manager beckoned to a security guard, Larry Moore, who was assigned to the store by Seaboard Security Systems, Ltd., and at the same time asked someone in the back of the store to call the police. Within a few minutes Officer Knowles of the Metropolitan Police Department came into the store. According to appellee, Knowles first spoke with the assistant manager, who had called him over, and then approached appellee and said, "[T]he manager wants you to leave the store." Kelly testified that he was about to respond to the officer when the security guard approached from the rear and grabbed him around his throat; simultaneously, the police officer stuck his knee into Kelly's chest. The two pushed him to the ground, and handcuffed him. Without resistance from Kelly, the officer and the security guard took Kelly to the back of the store where he stood in handcuffs in view of store customers. After 10 or 15 minutes a police car arrived and transported him to the precinct where the police charged him with unlawful entry,² and subsequently released him.

The chief security investigator for Safeway Stores, Inc., Mr. Kubicek, stated that Safeway did not hire, pay or train the Seaboard guards or tell them specifically how to do their work. He said that there was an oral understanding between Safeway and Seaboard that Seaboard would supply security guards for 16 Safeway stores. Safeway paid for their services in one lump sum to Seaboard. Kubicek explained that a guard was under the general direction of the store manager, who had operational control over the guard. Specifically, he said that the store manager would normally set the hours the guards worked, and could ask Seaboard to replace a guard with whom he had become dissatisfied. Kubicek also testified that if a store manager encountered problems with a customer and needed a guard's assistance, the guard would act under the general direction of the manager.

Testifying for appellant, Seaboard security guard Moore contradicted appellee's version in some respects. Moore stated that he noticed Kelly and the assistant manager in the front of the store talking loudly. Contrary to appellee's assertion that the assistant manager motioned to the guard, Moore said he approached the assistant manager on his own initiative in an attempt to resolve an emerging problem. At the same time, Moore stated, Officer Knowles of the Metropolitan Police Department entered the store and came directly over to the assistant manager and Kelly. When Kelly became louder, the police officer decided to place him under arrest. The security guard grabbed Kelly, who then swung at the officer. A scuffle broke out between the guard, the officer and Kelly, resulting in Officer Knowles handcuffing Kelly and placing him under arrest with the assistance of the guard.

Although Moore differed with Kubicek as to the question of who determined a guard's working hours, he generally supported the latter's testimony in other respects. Moore also explained that Seaboard trained the guards placing primary emphasis on apprehension and arrest of shoplifters. He added that he would follow specific requests of the manager, such as locking the doors in the evenings, and would act under the general direction of the manager if he were having a problem with a customer.

Also testifying for appellant, the assistant store manager Wheeler recollected that the police officer first came over to talk to him, and then approached Kelly and told him the assistant manager wanted him to leave the store. Wheeler also said that Kelly threw a punch at the officer before the security guard touched Kelly to assist in the arrest. The store manager denied that he had called Kelly a troublemaker. He explained that, in response to Kelly's boisterous complaints about the broken door, he told Kelly that if he could not "keep it down," Wheeler would call the police to remove him. Wheeler also stated that the only instructions Safeway gave to the guards were to keep juveniles out of the doorway and to watch for shoplifters.

Officer Knowles stated that a short interval after entering the store on routine patrol, he heard loud shouting on the premises. Seeing the assistant manager and Kelly in the front of the store, he approached the assistant manager, who told him that he had asked Kelly to leave but Kelly refused. The officer approached Kelly and informed him that he would have to leave if he would not quiet down. When Kelly continued to shout, Officer Knowles told him he was under arrest. The officer could not tell if Kelly swung at him, but did know Kelly raised his fist or fists. The officer grabbed Kelly around the neck, and pulled him to the ground. Moore then grabbed Kelly and helped the officer handcuff him.

In his suit against Safeway,³ Kelly alleged assault and battery, and false arrest.⁴ The jury entered judgment against Safeway for compensatory damages⁵ in the amount of $25,000 for assault and battery, and $40,000 for false arrest. Safeway moved for judgment notwithstanding the verdict (n.o.v.) or alternatively for a remittitur and/or a new trial. On May 7, 1980, the trial judge granted a remittitur, thereby reducing appellee's verdict for assault and battery to $2,000, and for false arrest to $13,000.⁶ He conditioned denial of Safeway's motion for a new trial on Kelly's acceptance of the remittitur. Kelly filed a timely acceptance of the remittitur and Safeway appealed the court's ruling.⁷

II

The threshold determination is whether Safeway is liable for the alleged assault and battery and false arrest of appellee by a security guard who was working at a Safeway store and was employed by an independent security service. Safeway argues that it avoids liability since the guard service company was an independent contractor⁸ and not a servant of Safeway.

Determining whether a master and servant⁹ relationship exists depends upon the particular facts of each case. McGinniss v. Frederick W. Berens Sales, Inc., D.C. App., 308 A.2d 765, 766 (1973); see RESTATEMENT (SECOND) OF AGENCY § 220, Comment (c) (1958). The leading case in our jurisdiction lists the following factors to be considered:

(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant's conduct, (5) and whether the work is part of the regular business of the employer. Standing alone, none of these indicia, excepting (4), seem controlling in the determination as to whether such relationship exists. The decisive test * * * is whether the employer has the right to control and direct the servant in the performance of his work and the manner in which the work is to be done. [LeGrand v. Insurance Company of North America, D.C.App., 241 A.2d 734, 735 (1968) quoting Dovell v. Arundel Supply Corp., 124 U.S.App.D.C. 89, 90, 361 F.2d 543, 544, cert. denied, 385 U.S. 841, 87 S.Ct. 93, 17 L.Ed.2d 74 (1966).][¹⁰]

In characterizing the right to control as the determinative factor, we mean the right to control an employee in the performance of a task and in its result, and not the actual exercise of control or supervision. Dovell v Arundel Supply Corp., supra at 91, 361 F.2d at 545, see RESTATEMENT (SECOND) OF AGENCY § 220(1) (1958); F. HARPER & F. JAMES, THE LAW OF TORTS § 26.11 (1956).

In a similar case, we held that a guard employed by an independent security service at a Safeway store was a servant acting within the scope of employment when he assaulted a customer. Safeway Stores, Inc. v. Gibson, D.C.Mun.App., 118 A.2d 386, 388 (1955), aff'd, 99 U.S.App.D.C. 111, ...