Weinberg v. Johnson

• Decision Date: 08 December 1986
• Docket Number: No. 84-895.,84-895.
• Citation: 518 A.2d 985
• Parties: Milton WEINBERG, Appellant, law. v. Thomas JOHNSON, Appellee.
• Court: D.C. Court of Appeals

Page 985

518 A.2d 985

Milton WEINBERG, Appellant, law. v. Thomas JOHNSON, Appellee.

No. 84-895.

District of Columbia Court of Appeals.

Argued March 20, 1986.

Decided December 8, 1986.

Raymond L. Poston, Jr., Washington, D.C., for appellant.

Gerald I. Holtz, with whom Harold A. Sakayan, Washington, D.C., was on brief, for appellee.

Before FERREN, TERRY, and ROGERS, Associate Judges.

ROGERS, Associate Judge:

This appeal involves a personal injury action arising out of a shooting of appellee at appellant's laundromat. The facts are set forth in Johnson v. Weinberg, 434 A.2d 404 (D.C. 1981) (Johnson I), where this court reversed the trial court's grant of appellant's motion for a directed verdict at the close of appellee's case, and remanded the case for a new trial. At the second trial, a jury found for appellee, awarding $800,000 in compensatory damages. Judge Taylor denied appellant's motion for a new trial on liability, but granted a new trial on damages. At the third trial, the jury awarded appellee $2,000,000 in compensatory damages, and Judge Riley denied appellant's motion for judgment notwithstanding the verdict and for a new trial on liability and damages.¹ Finding no error by Judge Taylor in denying appellant's motion for directed verdict, his requested jury instructions on the scope of employment, and his motion for a new trial on liability, and no error by Judge Riley in denying his motion for a new trial on the grounds the verdict was excessive, we affirm.²

I. Directed Verdict

Appellant contends there was no evidence at the second trial from which the jury could find that there was an employer/employee relationship between himself and Ms. Schneider, and thus between himself and Boyd, and further that there was no evidence from which the jury could find the shooting occurred within the scope of Boyd's employment. Appellant argues, therefore, that Judge Taylor erred in failing to direct a verdict in his favor at the close of appellee's evidence and again at the close of all the evidence.

The same issues were submitted to the trial court in the first trial and to this court in the first appeal. See Johnson I, supra, 434 A.2d at 407. The first trial judge (Judge McArdle) concluded at the close of the plaintiff-appellee's case "there was a master/servant relationship, but held as a matter of law, on the evidence adduced, no reasonable mind could conclude that when the shooting occurred, Boyd was acting within the scope of his employment." Id. at 408. In Johnson I this court affirmed Judge McArdle's ruling on the master/servant relationship, but reversed on the issue of scope of employment, holding that this was a question for the jury. Accordingly, the "law of the case" doctrine is dispositive of these issues. That doctrine bars a trial court from reconsidering the same question of law that was submitted to and adjudicated by another court of coordinate jurisdiction when (1) the motion under consideration is substantially similar to the one already raised before, and considered by, the first court; (2) the first court's ruling is "sufficiently `final'"; and (3) the prior ruling is not "clearly erroneous in light of newly presented facts or a change in substantive law."

Tompkins v. Washington Hospital Center, 433 A.2d 1093, 1098 (D.C. 1981) (quoting Kritsidimas v. Sheskin, 411 A.2d 370, 371-72 (D.C. 1980)). After Johnson I, Judge Taylor had to present both issues to the jury since none of the exceptions to the doctrine were applicable. See Minick v. United States, 506 A.2d 1115, 1116-17 (D.C. 1986).

A. Master/Servant Relationship

Appellant argues there were insufficient facts at the second trial to establish a jury question on his work relationship with Boyd. Since the law of the case doctrine is designed to "dispose of cases efficiently by discouraging `judge-shopping' and multiple attempts to prevail on a single question," Tompkins, supra, 433 A.2d at 1098; Kritsidimas, supra, 411 A.2d at 371, it is properly applied here. Application of this doctrine does not produce, as appellant maintains, a result that is clearly erroneous in light of changes in substantive law. Since the first trial in 1981, this court has had occasion to consider the proof necessary to establish the existence of the master/servant relationship,³ and has continued to analyze it in accordance with the guidelines set forth in Le-Grand v. Insurance Company of North America, 241 A.2d 734 (D.C. 1968). Evidence was offered at the second trial relating to these guidelines, and in addition, appellant stated in his deposition that he had "control over everything" in the laundromat. We find no error by Judge Taylor in denying the motion for a directed verdict in view of the evidence regarding Ms. Schneider's role as manager in the operation of the laundromat.⁴

B. Scope of Employment

Appellant also argues Judge Taylor erred in failing to direct a verdict in his behalf on the ground that the shooting was not within Boyd's scope of employment. He maintains the law of the case doctrine does not control because there has been a substantive change in the law as set forth in Boykin v. District of Columbia, 484 A.2d 560 (D.C. 1984).

The doctrine of respondeat superior is a doctrine of vicarious liability which imposes liability on employers for the torts committed by their employees within the scope of their employment. District of Columbia v. Coron, 515 A.2d 435, 437-38 (D.C. 1986); Boykin, supra, 484 A.2d at 561-62; Penn Central Transportation Co. v. Reddick, 398 A.2d 27, 29 (D.C. 1979). Where the employee's action involves an intentional tort which is incidental to the conduct authorized, the meaning of "scope of employment" is unclear. The idea behind respondeat superior is to subject an employer to liability for "whatever is done by the employee in virtue of his employment and in furtherance of its ends." Penn Central Transportation Co. v. Reddick, supra, 398 A.2d at 29. The employer, therefore, is not to be held liable for "willful acts, intended by the agent only to further his own interest, not done for the [employer] at all." Id. at 31 (quoting Nelson v. American-West African Line, 86 F.2d 730, 731 (2d Cir. 1936), cert. denied, 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873 (1937)); accord, Grimes v. B.F. Saul Co., 60 App.D.C. 47, 47 F.2d 409 (1931). The employer does not avoid liability for the employee's intentional torts, however, if the tort is commited partially because of a personal motive, such as revenge, as long as "the employee [is] actuated, at least in part, by a desire to serve his principal's interest." Jordan v. Medley, 228 U.S.App.D.C. 425, 428, 711 F.2d 211, 214 (1983); RESTATEMENT (SECOND) OF AGENCY § 245 comment f (1958).

In Johnson I, supra, the court stated: Boyd was employed to clean the Laundromat. In addition to his regular duties, in the interest of his employer, when all of the washing machines were full he would remove clothes from the machines as they finished washing, so that empty machines would be available for other patrons. This service enhanced customer relations, but also placed Boyd in a position where it would be anticipated that problems of the nature described here could arise. If a patron was unable to locate his or her laundry, once having deposited it, it seems likely that Boyd would be confronted in an effort to resolve the matter. `Whether the assault . . . was the outgrowth of a job-related controversy or simply a personal adventure of . . . [Boyd's], was a question for the jury.'

434 A.2d at 408-09 (footnote omitted) (quoting Lyon v. Carey, 174 U.S.App.D.C. 422, 424, 533 F.2d 649, 651 (1976)).

The questions for the jury were whether the shooting occurred in the course of Boyd's performance of duty or after the job-related transaction was completed, and whether the shooting involved no more than Boyd's use of a "job-related situation" as an opportunity to pursue his own "personal adventure." The holding in Johnson I that these are questions for the jury is not affected by Boykin, supra, 484 A.2d 560.

In Boykin, a coordinator of an educational program for blind and deaf students took one of the students for a walk, ostensibly to train her to avoid walking into obstacles, and sexually assaulted her in the school cafeteria. Id. at 561. The coordinator was not performing any of his teaching responsibilities at any time during the encounter with the student. In observing that while "Boyd's walks with the student afforded him the opportunity to pursue his personal adventure," id. at 563 (emphasis in original), the court affirmed the grant of summary judgment:

[T]he sexual attack . . . was unprovoked. It certainly was not a direct outgrowth of Boyd's instructions or job assignment, nor was it an integral part of the school's activities, interests or objectives. Boyd's assault was in no degree committed to serve the school's interest, but rather appears to have been done solely for the accomplishment of Boyd's independent, malicious, mischievous and selfish purposes.

Id. at 562.

Boykin relied on the principles of respondeat superior set forth in Penn Central Transportation Co. v. Reddick, supra, 398 A.2d at 31. Boykin, supra, 484 A.2d at 561-62. Thus, it does not establish a substantive change in the law.⁵ Significantly for our purposes, Boykin pointed out that Johnson. I did not substitute foreseeability for intent but assumed that where the employee is in the course of performing job duties, the employee is presumed to be intending, at least in part, to further the employer's interests. Id. at 563 n. 2. Accordingly, since the propriety of submitting the question of the scope of Boyd's employment to the jury was not clearly erroneous in light of new facts or new law, the doctrine of "law of the case" controls our resolution of this issue.⁶

II. Jury Instruction: Scope of Employment

Appellant also contends Judge Taylor erred in instructing the jury that Boyd was acting within the scope...