Present: All the Justices
LAURA MAJORANA
OPINION BY
v. Record No. 992179 JUSTICE LAWRENCE L. KOONTZ, JR.
November 3, 2000
CROWN CENTRAL PETROLEUM CORPORATION
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
H. Selwyn Smith, Judge Designate
In this appeal, we consider issues relating to the doctrine
of respondeat superior, sanctions imposed by the trial court
related to the late identification of witnesses, the bifurcation
of a civil trial, and jury instructions on the tort of negligent
hiring. Because these issues relate to discrete rulings made by
the trial court in a voluminous record, we will address each in
turn, stating the relevant facts and proceedings within the
discussion.
DISCUSSION
Respondeat Superior
On January 30, 1997, Laura Majorana filed a motion for
judgment against Crown Central Petroleum Corporation (Crown) and
Kuldip Singh Bains. Majorana alleged in her motion for judgment
that on March 11, 1996, Bains was working as a station attendant
at Crown’s retail gas station in Warrenton. The gas station has
self-service gasoline pumps and a payment booth where soft
drinks are also displayed for sale. Inside this booth, a
payment counter separates customers from employees of the gas
station.
Majorana alleged that she stopped at this gas station,
where she was a regular customer, to purchase gasoline. When
she attempted to pay for her purchase with a credit card, Bains
produced a small black notebook and refused to complete the
transaction unless she provided him with her telephone number.
Bains told Majorana that “I tell my friends I am going to marry
you.” When Majorana refused to give Bains her telephone number,
Bains became angry, refused to return her credit card, told her
to get some sodas, and “take a break” while he attended to
purchases of other customers.
Majorana further alleged that when the other customers had
paid and left, Bains moved from behind the counter, lunged at
her, and attempted to kiss her. He then grabbed her breasts,
rubbed his body against hers, “and made an animal-like
conquering scream.” Bains then returned to the attendant’s side
of the payment counter and told Majorana that he would pay for
her gas. Majorana demanded her credit card and receipt and
Bains complied.
Seeking $1,000,000 in compensatory damages and $4,000,000
in punitive damages, Majorana’s motion for judgment asserted
various theories of liability including assault and battery and
intentional infliction of emotional distress against Bains and
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Crown, gross negligence and simple negligence against Crown for
failing to maintain a safe environment for a business invitee,
and negligent hiring, training, and retention of Bains against
Crown. In her assertions of assault and battery and intentional
infliction of emotional distress, Majorana included a claim that
Crown was vicariously liable for Bains’ acts performed within
the scope of his employment with Crown.
Although Bains initially was represented by counsel, early
in the proceedings he ceased cooperating with his counsel, who
sought and was granted permission to withdraw from the case.
After Bains failed to appear in further proceedings, Majorana
filed a motion for default judgment against Bains, which the
trial court granted.
Crown filed a demurrer to the motion for judgment
challenging the legal sufficiency under Virginia law of claims
for negligent training or retention, and claiming that an
employer’s duty of care does not go beyond the initial hiring
decision. A subsequent separate motion filed by Crown sought
summary judgment on the theory that Bains was not, as a matter
of law, acting within the scope of his employment in the conduct
which is the subject of Majorana’s claims of assault and battery
and intentional infliction of emotional distress. Crown
asserted that when Bains moved from behind the payment counter,
he was acting thereafter outside the scope of his employment and
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against the interests of Crown. By order dated February 9,
1999, the trial court overruled the demurrer and the motion for
summary judgment.
Crown filed a motion for reconsideration, addressing only
the respondeat superior issue raised in the motion for summary
judgment. Majorana, who had not previously filed any written
statement of her position on this issue, filed a responding
brief citing Plummer v. Center Psychiatrists, Ltd., 252 Va. 233,
476 S.E.2d 172 (1996). She contended that Plummer supported the
trial court’s initial finding that her motion for judgment
sufficiently stated a cause of action against Crown by raising a
material question of fact as to whether Bains was acting within
the scope of his employment when he assaulted her. By order
dated April 9, 1999, the trial court granted Crown’s motion for
reconsideration and entered summary judgment for Crown on the
claims of assault and battery and intentional infliction of
emotional distress. Majorana assigns error to this ruling and
the subsequent denial of her post-trial motion for
reconsideration of this issue. 1
1
Crown contends that Majorana failed to state her objection
with reasonable certainty to the trial court’s ruling and, thus,
is barred from asserting this issue on appeal. We disagree. We
have stated that when a plaintiff assigns error to the
sustaining of a demurrer, recitation of her position on the
issue, combined with her objection to the trial court’s ruling
noted on the order, these actions are sufficient to preserve the
4
Although Crown sought summary judgment on this issue, it
relied exclusively on the allegations of the motion for judgment
to support its argument that Bains was acting outside the scope
of his employment. Although Rule 3:18 permits a trial court to
enter summary judgment on the pleadings, judgment “shall not be
entered if any material fact is genuinely in dispute.” This
“assures that parties’ rights are determined upon a full
development of the facts, not just upon pleadings.” Commercial
Business Systems, Inc. v. Halifax Corp., 253 Va. 292, 297, 484
S.E.2d 892, 894 (1997). In this procedural posture, the issue
presented in this case is whether the facts alleged in the
motion for judgment are sufficient to support the plaintiff’s
legal conclusion that the employee acted within the scope of his
employment when he committed the wrongful acts against the
plaintiff and, thus, raise a material question of fact not
amenable to resolution by summary judgment. 2
issue for appeal. Luckett v. Jennings, 246 Va. 303, 306, 435
S.E.2d 400, 401 (1993). This rationale is equally applicable
here to Majorana’s objection to the trial court’s ruling on
Crown’s motion for summary judgment on the pleadings. Moreover,
having briefed the issue in a post-trial motion for
reconsideration, Majorana adequately preserved the issue for
review in this appeal.
2
While Crown’s motion was labeled one for summary judgment,
it is apparent from the record that the trial court’s ruling
reflected the trial court’s conclusion that Majorana’s motion
for judgment failed to state a legal claim, and hence treated
Crown’s motion as a demurrer. The distinction between summary
5
In Plummer, we held that an allegation that the employee, a
therapist, had engaged in an improper sexual relationship with a
patient stated a cause of action against his employer under the
doctrine of respondeat superior. 252 Va. at 237, 476 S.E.2d at
174. Majorana asserts on appeal, as she did below, that the
rationale of Plummer applies with equal force to the allegations
in her motion for judgment with respect to Crown’s liability for
Bains’ acts. Crown notes that in Plummer there was an
allegation that the therapist’s “education, experience, and
knowledge of the plaintiff” facilitated his seduction of the
patient. Id. at 237, 476 S.E.2d at 174-75. Crown contends that
the absence of similar allegations in Majorana’s motion for
judgment of circumstances in the employment facilitating Bains’
assault materially distinguishes her pleading from the pleading
in Plummer. We disagree with Crown.
In Gina Chin & Associates, Inc. v. First Union Bank, 260
Va. ___, ___ S.E.2d ___ (2000), also decided today, we have
discussed in detail the necessary elements of a cause of action
for liability against an employer for the willful and wrongful
acts of its employee premised upon the doctrine of respondeat
superior. Accordingly, we need not reiterate that discussion
judgment and demurrer is significant and well settled. However,
in this case we reach the same result upon the record presented
for our consideration.
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here. It is sufficient to say that in such cases, while the
plaintiff bears the burden of persuasion on the issue whether
the employee was within the scope of the employment when the act
which caused the injury was committed, the plaintiff’s burden of
production on that issue is met by establishing the employer-
employee relationship at that time. When the plaintiff presents
evidence sufficient to show the existence of an employer-
employee relationship, she has established a prima facie case
triggering a presumption of liability. McNeill v. Spindler, 191
Va. 685, 694-95, 62 S.E.2d 13, 17-18 (1950). The burden of
production then shifts to the employer, who may rebut that
presumption by proving that the employee had departed from the
scope of the employment relationship at the time the injurious
act was committed. Kensington Associates v. West, 234 Va. 430,
432-33, 362 S.E.2d 900, 901 (1987). If the evidence leaves in
doubt the question whether the employee acted within the scope
of the employment, the issue is to be decided by the jury and
not as a matter of law by the trial court. Id.; see also
Plummer, 252 Va. at 235, 476 S.E.2d at 174.
While we noted in Plummer that the motion for judgment in
that case contained specific allegations of circumstances that
facilitated the wrongful act which caused the plaintiff’s
injury, these allegations were not dispositive to our decision.
The sole issue in that case was whether the trial court erred by
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holding, as a matter of law, that the motion for judgment did
not state the necessary elements of respondeat superior within
its factual allegations. Clearly, the motion for judgment here
contains an allegation of an injury caused by the willful and
wrongful act an employee committed in the course of the
employer-employee relationship and within the scope of his
employment. It alleges that Bains was Crown’s employee, that he
assaulted Majorana at his regular place of employment, and that
he did so while he was performing the business of his employer
for which she was the employer’s customer.
Thus, as we said in Plummer, “at this stage of the
proceedings, there simply are not sufficient facts which would
permit us to hold, as a matter of law, that the defendant has
met its burden of showing that its employee was not acting
within the scope of his employment.” 252 Va. at 237, 476 S.E.2d
at 175. Accordingly, we hold that the trial court erred in
entering summary judgment for Crown on the allegations in
Majorana’s motion for judgment asserting Crown’s liability for
assault and battery and intentional infliction of emotional
distress by respondeat superior.
Discovery Sanctions
The trial court set a discovery cutoff date of thirty days
prior to December 16, 1998, the original date set for trial. On
December 9, 1998, Majorana’s counsel placed an advertisement in
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a local newspaper seeking witnesses or information concerning
any other known sexual assaults or similar behavior by Bains.
The advertisement resembled a “wanted poster,” made allegations
that Bains was a sexual predator, offered a “[r]eward based on
useful information provided for the current lawsuit against
Crown Central Petroleum and Kuldip Singh Baines (sic),” and
directed persons with information to “Call: Attorney” at two
phone numbers.
Two days later, Crown filed a motion asserting that the
advertisement had tainted the jury pool. Crown sought, among
other things, dismissal of the case with prejudice or a change
of venue. In the alternative, Crown sought a continuance of the
trial date.
By order entered on December 16, 1998, the trial court held
that there was a “substantial probability that this
advertisement might taint the jury pool summoned” for the trial
date. The trial court denied the motions for dismissal and
change of venue, alternatively granting the motion for a
continuance and setting a new trial date beginning on March 3,
1999. The trial court ordered that Majorana produce all notes
relating to the responses to the advertisement along with the
names and phone numbers of the respondents. The trial court
deferred for further consideration a request by Crown that it be
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allowed to depose the witnesses discovered through the
advertisement.
Crown filed a subsequent motion to depose the witnesses
found as a result of the advertisement, to exclude the testimony
of any witnesses found as a result of the advertisement, and to
exclude any evidence of wrongful acts by Bains which occurred
after his assault on Majorana. The trial court granted this
motion in its entirety and directed that Majorana bear the cost
of the proposed depositions. In ruling that the testimony of
witnesses discovered through the advertisement would be
excluded, the trial court stated that its ruling was limited
only to the witnesses being called for direct testimony, and
that there was no limitation on their use as rebuttal witnesses.
In a subsequent order, however, the trial court reversed its
decision to exclude the testimony of these witnesses, but
limited their testimony to evidence of incidents occurring
before the assault on Majorana.
Majorana assigns error to the trial court’s “excluding the
testimony of witnesses discovered by means of the newspaper
advertisement placed by plaintiff’s counsel.” On brief,
Majorana addresses this assignment of error in a single
paragraph without citation to authority and without reference to
the trial court’s ultimate ruling permitting the witnesses to
testify, but limiting the scope of that testimony. Assuming
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this assignment of error was intended to address the trial
court’s ultimate ruling, the failure to present argument on that
ruling constitutes a waiver and, accordingly, we do not consider
the merits of this assignment of error. See Atkisson v. Wexford
Associates, 254 Va. 449, 454 n. *, 493 S.E.2d 524, 527 n. *
(1997).
Majorana also assigns error to the trial court’s assessing
against her the cost of Crown’s deposing the witnesses
discovered through the advertisement. Majorana contends that
the trial court lacked the authority to impose a monetary
sanction in the form of discovery cost unless there was an
express finding of contempt.
On brief, Crown contends that the trial court offered
Majorana the option of bearing the cost of the depositions as a
condition for permitting the witnesses to testify and that
Majorana acquiesced to this condition. While this may be a
logical inference from the trial court’s reversal of its
decision to exclude the witnesses entirely, the record and,
specifically, the trial court’s orders do not reflect this
rationale for imposing the cost of the depositions against
Majorana. However, neither does the record reflect, as Majorana
appears to contend, that the trial court imposed the cost as a
contempt sanction for placing the ethically questionable
advertisement, disrupting the proceedings by the late
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identification of witnesses, and creating a need for further
discovery following the cutoff date. Indeed, the record is
mostly silent as to the rationale for the trial court’s action.
Nonetheless, because our decision to reverse the trial
court’s ruling concerning respondeat superior will require a
remand for further proceedings, we recognize that the
circumstances of the further proceedings may lead the trial
court to reconsider the imposition of the cost of these
depositions on Majorana. See Lake v. Northern Virginia Women’s
Medical Center, 253 Va. 255, 263, 483 S.E.2d 220, 224 (1997).
At the very least, the trial court will have the opportunity to
amplify the record as to the basis for imposing the cost of the
depositions against Majorana. Accordingly, we express no
opinion on this issue at this time, but will leave the trial
court’s action undisturbed pending further proceedings. Id.
Bifurcation of Civil Trial
After the trial court sustained Crown’s demurrer to the
claims of assault and battery and intentional infliction of
emotional distress, Crown filed a motion to bifurcate the trial
into liability and damages phases. Crown contended that
bifurcation of the trial “would be in the interests of judicial
economy . . . and would streamline the proceeding.” The trial
court’s order granting Crown’s motion was endorsed by Majorana’s
counsel as “objected to for the reasons noted in open court.”
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Majorana failed to provide a transcript or authorized
statement of fact summarizing the argument made against Crown’s
motion. In the absence of a record reflecting the reason for
the objection made in the trial court, we are unable to discern
whether the objection raised on appeal was properly preserved
below. Accordingly, we will not consider Majorana’s assignment
of error to the trial court’s granting of the motion to
bifurcate the trial. Rule 5:25.
Jury Instructions on Negligent Hiring
At the conclusion of the evidence, Majorana proffered two
instructions concerning the failure of Crown to present evidence
of any background investigation of Bains at the time he was
first employed. The first instruction read:
Under the circumstances of this case, by the
failure of Crown to produce as a witness their current
employee Vatos—who was the manager of Crown in
Warrenton on 3/11/96—where the Bains station records
were supposed to be maintained (job application etc.),
to explain the absence of that record (after a request
to produce has been made by Laura Majorana) you may
presume that the witness would have produced testimony
adverse to Crown as to the job application, or other
matters.
The second instruction read:
Under the circumstances of this case, by the
failure of Crown to produce any written job
application of their former employee Bains, you may
presume that it was never provided by Bains, or if
provided it contained adverse information about Bains,
(no references).
13
The trial court refused both of these instructions. Crown
proffered two instructions on negligent hiring. The first
stated the elements of that cause of action. The second
addressed the issue of “imputed knowledge” and stated that
Majorana had the burden to show “[t]hat the investigation Crown
should have conducted is one that Crown is obligated to do in
the exercise of reasonable care considering both Crown’s
business and Bains’ position as a gas station attendant.” This
instruction further stated that Majorana must show “[t]hat such
investigation would have put Crown on notice that its hiring of
Mr. Bains might reasonably lead to an assault on the plaintiff.”
The trial court granted both these instructions.
The jury, which was given interrogatories, returned its
verdict for Crown, and Crown was dismissed from the case. The
jury then considered damages against Bains and awarded Majorana
$70,140 in compensatory damages and $60,000 in punitive damages.
In her third assignment of error, Majorana asserts that
“[t]he trial court improperly instructed the jury on the issue
of negligent hire.” In her fourth assignment of error, Majorana
asserts, in part, that “[t]he trial court erred in denying
plaintiff’s motion to reconsider the court’s decisions on the
issue[] of . . . the legal standard for proving negligent hire.”
The “motion for reconsideration” referenced by this latter
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assignment of error was essentially a motion to set aside the
jury’s verdict. These assignments of error are without merit.
Majorana, relying on Southeast Apartments Management v.
Jackman, 257 Va. 256, 513 S.E.2d 395 (1999), asserts that an
employer is required to conduct a reasonable background
investigation of a prospective employee and that the failure to
do so establishes the employer’s liability. Because Crown
failed to produce evidence of what background investigation, if
any, it undertook prior to hiring Bains, Majorana contends that
she was entitled to have the jury instructed that the failure to
produce such evidence raised a presumption that Crown had either
failed to investigate Bains’ background or had done so and
discovered adverse information.
Majorana misconstrues the holding in Southeast Apartments.
In that case, we held that an employer’s liability for negligent
hiring “is predicated on the negligence . . . in placing a
person with known propensities, or propensities which should
have been discovered by reasonable investigation, in an
employment position in which, because of the circumstances of
the employment, it should have been foreseeable that the hired
individual posed a threat of injury to others.” 257 Va. at 260,
513 S.E.2d at 397. We did not thereby hold that the absence of
proof by the employer of a “reasonable investigation” of the
employee raises a presumption that either no investigation was
15
conducted or that if conducted, it would have revealed that the
employee posed a threat of injury to others.
To the contrary, it is a paradigm of civil trials that the
burden of proof falls upon the plaintiff. In the case of a
claim of negligent hiring, proof of the failure to investigate a
potential employee’s background is not sufficient to establish
the employer’s liability. Rather, the plaintiff must show that
an employee’s propensity to cause injury to others was either
known or should have been discovered by reasonable
investigation. This was the substance of the instructions
proffered by Crown and given by the trial court.
The record shows that Majorana produced no evidence of what
form of reasonable investigation of Bains’ background Crown
should have undertaken. Nor does any evidence in the record
support the proposition that a reasonable investigation would
have revealed that Bains had a propensity to commit assaults
and, thus, posed a threat to others in his employment with
Crown. Accordingly, we hold that Majorana’s instructions were
not correct statements of law and were properly refused by the
trial court. Similarly, the trial court did not err in denying
Majorana’s motion to set aside the jury verdict on the ground
that it had not properly instructed the jury on this issue.
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CONCLUSION
For these reasons, we will reverse the trial court’s entry
of summary judgment for Crown on Majorana’s claims of liability
under respondeat superior for assault and battery and
intentional infliction of emotion distress, affirm the judgment
in favor of Crown on the claims of negligence, gross negligence,
and negligent hiring and retention, and remand the case for
further proceedings consistent with the views expressed in this
opinion.
Affirmed in part,
reversed in part,
and remanded.
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