Vicarious Liability Claim Fails Because Employee’s Assault was Outside Course and Scope of Employment, And Direct Negligence Claims Against Employer Fail for Lack of Duty of Care
U.S. District Court, Wyoming: Plaintiff Constantin Pauna and Defendant Roger Brownell were both employed by or contracted with different companies as over-the-road truck drivers when Brownell cut in line ahead of Pauna at a truck stop where Pauna was waiting in line to refuel.
Pauna got out of his truck and confronted Brownell, who was sitting in his truck. The two exchanged heated words, and Pauna may or may not have pushed Brownell’s open truck cab door closed on Brownell. Brownell then jumped out of his truck cab onto Pauna and punched him repeatedly in the head and torso, knocking Pauna unconscious. Pauna was taken to the hospital, and Brownell was arrested and charged with one count of misdemeanor simple assault.
Pauna sued Brownell and Brownell’s employer, Defendant Swift Transportation, asserting that as a result of the assault, he had suffered substantial injuries and had been unable to return to work. Pauna sought to hold Swift vicariously liable for the assault, alleged that Swift negligently hired, retained, and/or supervised Brownell, and sought punitive damages. Swift asserted it was entitled to summary judgment because (1) Brownell was not acting within the course and scope of his employment when he assaulted Pauna, (2) Swift did not owe a relevant duty of care concerning its hiring, supervision, and retention of Brownell, and (3) there was no evidence of willful and wanton misconduct on Swift’s part to support Pauna’s request for punitive damages.
Traditionally, employers may be held vicariously liable for acts their employees commit within the scope of their employment. An employee’s conduct is within the scope of his employment only if it: (1) is of the kind he is employed to perform; (2) occurs substantially within authorized time and space limits; and (3) is at least partially actuated by a purpose to serve the master/employer. The scope of employment inquiry is generally a fact question for the jury but can become a question of law when the facts allow only one reasonable inference.
Initially, the Court determined what specific conduct of Brownell was actually at issue. Pauna stressed that Brownell was “refueling his truck in the course and scope of his employment with” Swift at the time of the assault. However, the alleged assault and the refueling process were discrete events, and Pauna produced no evidence suggesting the assault, or even cutting in line, was a necessary step for Brownell to refuel his truck. Brownell ceased the act of refueling his truck when he attacked Pauna. Thus, the Court considered whether Brownell’s conduct in beating Pauna—not refueling—was “within the scope of his employment.”
The Court found Swift had carried its initial burden by making a prima facie case that Brownell’s assault was not the kind of activity Brownell had contracted with Swift to perform, and was in fact specifically prohibited by Swift company policies, which Brownell knew and acknowledged in his written statement following the incident. Additionally, Swift showed that Brownell’s actions were in no part intended to serve Swift’s business. Pauna produced no evidence to raise a genuine dispute of material fact as to either the first or third elements to establish that Brownell had acted within the scope of his employment. Thus, the Court held that Swift was entitled to summary judgment on the vicarious liability claim.
Next, the Court considered the direct negligence claims: negligent hiring, negligent retention, and negligent supervision. For each claim, the Court noted that Swift would have owed a duty of care to Pauna if it either knew, or should have known, that Brownell might attack or physically injure members of the public. Pauna cited Brownell’s prior criminal record, consisting of two misdemeanor convictions for animal cruelty and disorderly conduct (both several years prior to his employment application), as proof that Swift knew or should have known Brownell was dangerous to the public. However, Brownell’s prior misdemeanors were too attenuated from his alleged assault of Pauna to have made the assault foreseeable to Swift. Thus, Pauna’s negligent hiring claim failed as a matter of law for lack of a legal duty of care.
The undisputed evidence showed that in attacking Pauna, Brownell left the cab of his truck and therefore was not on Swift’s premises and did not use Swift’s chattel in committing the alleged assault, and furthermore the assault was unforeseeable. Therefore, the negligent supervision claim similarly failed for lack of a duty of care. The lack of evidence that Swift had learned of Brownell’s purported “violent tendencies” after hiring him, meant that the negligent retention claim likewise failed for lack of a duty of care.
Turning to the punitive damages claim, the Court noted that Pauna mistakenly alleged punitive damages as a separate cause of action rather than, appropriately, as an element of an underlying claim. Accordingly, the Court’s determination that Swift was entitled to summary judgment on the underlying claims effectively also disposed of the request for punitive damages. Moreover, there was no evidence that would allow an inference that Swift had ratified or approved Brownell’s conduct—to the contrary, Swift fired Brownell a few days after the incident. Furthermore, punitive damages are reserved for circumstances involving outrageous conduct, such as intentional torts, torts involving malice and torts involving willful and wanton misconduct. Pauna alleged no intentional act or omission by Swift rising to this level of wrongdoing. The Court held that even if Pauna had a viable claim for direct negligence against Swift that could survive summary judgment, there was no evidence to support punitive damages against Swift.
The Court accordingly granted summary judgment in Swift’s favor as to all claims against it. Pauna has filed a pending appeal with the Tenth Circuit Court of Appeals.
Pauna v. Swift Transportation Co. of Arizona, LLC, No. 19-CV-137-SWS, 2021 WL 836859 (D. Wyo. Feb. 16, 2021) (not reported in permanent law reports).