Nichols v. Land Transport Corp.

United States Court of Appeals
For the First Circuit

No. 99-2375

ROBERT G. NICHOLS II,

Plaintiff, Appellant,

v.

LAND TRANSPORT CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

Before

Lynch and Lipez, Circuit Judges,
Cyr, Senior Circuit Judge.

Graydon G. Stevens, with whom Kelly, Remmel & Zimmerman was
on brief, for appellant.
Steven J. Mogul, with whom Gross, Minsky, Mogul & Singal was
on brief, for appellee.

August 16, 2000
 LIPEZ, Circuit Judge. Robert Nichols brought this

diversity action in the district court for the District of Maine

to recover for personal injuries he suffered in a "road rage"

attack by Oscar Gonzalez, a truck driver employed by Land

Transport Corp. The parties consented to proceed before a

magistrate judge, who granted Land Transport's motion for

summary judgment, concluding that under Maine law Gonzalez was

not acting within the scope of employment when he attacked

Nichols.

We review a summary judgment de novo, viewing the

record in the light most favorable to the nonmoving party to

determine whether there exists a genuine issue of material fact.

See Sheehy v. Town of Plymouth, 191 F.3d 15, 19-20 (1st Cir.

1999). We agree with the magistrate judge and affirm the

judgment.

On November 11, 1996, Nichols, driving his pickup

truck, and Gonzalez, driving a tractor-trailer for Land

Transport, were traveling westbound on Route 9 in eastern Maine.

Driving recklessly behind Nichols, Gonzalez made multiple

attempts to pass Nichols in no-passing zones, nearly causing a

collision, and followed Nichols at an unsafe distance. Nichols

responded twice with the predictable obscene gesture. When both

drivers stopped at a red light in Brewer, Gonzalez exited his

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truck, confronted Nichols, and attacked him with a rubber-coated

metal cable. In the ensuing struggle, Nichols briefly subdued

Gonzalez, but then fell to the ground, and Gonzalez stabbed him

in the thigh with a knife. Gonzalez was later convicted of

aggravated assault.

Nichols seeks to hold Land Transport vicariously liable

for Gonzalez's actions, alleging that Gonzalez was acting within

the scope of employment. Maine courts apply the test of

Restatement (Second) of Agency § 228 (1958) in determining

whether conduct is within the scope of employment. See McLain

v. Training & Dev. Corp., 572 A.2d 494, 497 (Me. 1990); see also

Lyons v. Brown, 158 F.3d 605, 609 (1st Cir. 1998); Bergeron v.

Henderson, 47 F. Supp. 2d 61, 65 (D. Me. 1999). The Restatement

test provides:

Conduct of a servant is within the scope of
employment if, but only if:
(a) it is of the kind he is employed to
perform;
(b) it occurs substantially within the
authorized time and space limits;
(c) it is actuated, at least in part, by a
purpose to serve the master, and
(d) if force is intentionally used by the
servant against another, the use of force is
not unexpectable by the master.

Restatement (Second) of Agency § 228(1).

We confine our discussion to the third prong of the

test because we conclude as a matter of law that Nichols has not

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satisfied that prong. There is no evidence in the record that

Gonzalez was in any way motivated by a purpose to serve Land

Transport when he fought and stabbed Nichols. Indeed, Nichols

does not seriously contend otherwise. Instead, he argues that

"an employer may be held liable for an assault by its employee

when the assault arises out of an employment-related dispute and

the assault occurs within work-related limits of time and

place," regardless of whether the employee had a purpose to

serve the employer.1

Nichols's argument is plainly incompatible with the

Restatement rule. This is obvious enough from the text of §

228. The Restatement commentary is even clearer, stating that

a master is not liable

if the servant has no intent to act on his
master's behalf, although the events from
which the tortious act follows arise while
the servant is acting in the employment and
the servant becomes angry because of them.
The fact that the servant acts in an
outrageous manner or inflicts a punishment
out of all proportion to the necessities of

1
Nichols's formulation includes the second prong of the
Restatement § 228 test, requiring that the tort occur
substantially within authorized time and space limits. He also
acknowledges that foreseeability, essentially embodied in the
fourth prong of the Restatement test (that the use of force be
not unexpectable by the master), is an additional requirement,
which he contends is almost always a jury issue, and should have
been here. We do not address this contention because our
discussion is limited to the third prong of the Restatement
test.

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 his master's business is evidence indicating
that the servant has departed from the scope
of employment in performing the act.

Restatement § 245, comment f.2

There is, nevertheless, a split of authority on the

issue of whether a purpose to serve the master is a requirement

for respondeat superior liability. Nichols cites cases from a

number of jurisdictions holding that an assault can be within

the scope of employment if it arises out of an employment-

related dispute, even if in committing the assault the servant

lacked a purpose to serve the master. See, e.g., Rivas v.

Nationwide Personal Sec. Corp., 559 So. 2d 668, 670 (Fla. Dist.

Ct. App. 1990); Lange v. National Biscuit Co., 211 N.W.2d 783,

404 (Minn. 1973); Life & Cas. Ins. Co. v. Padgett, 407 S.W.2d

728, 730 (Ark. 1966); Carr v. Wm. C. Cromwell Co., 171 P.2d 5,

7 (Cal. 1946). We, however, are applying Maine law, which

follows the Restatement. The cases from other jurisdictions

that support Nichols's position represent a rejection, rather

than an application, of Restatement § 228(1)(c).

For example, in a case heavily relied on by Nichols,

Weinberg v. Johnson, 518 A.2d 985 (D.C. 1986), the court

2Restatement § 245, "Use of Force," expands on the fourth,
"not unexpectable" prong of the § 228(1) scope of employment
test. Its commentary, however, also speaks to the application
of the other prongs of the test to torts involving the use of
force.

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purported to apply the Restatement in holding that it was a jury

issue whether a laundromat employee acted in the scope of

employment in shooting a customer who was leaving the laundromat

after an argument with the employee concerning the customer's

missing shirts. In reaching this conclusion, the court held

that District of Columbia law had so evolved that the

requirement of a purpose to serve the master "has become broad

enough to embrace an intentional tort arising out of any dispute

that was originally undertaken on the employer's behalf." Id.

at 991 (internal quotation marks omitted). This outcome has

been criticized. See Smith v. American Express Travel Related

Servs. Co., 876 P.2d 1166, 1171-72 (Ariz. Ct. App. 1994). It is

unmistakably a departure from the Restatement rule.3

Despite the departure in some jurisdictions noted by

Nichols, many courts continue to hold that a purpose to serve

the master is necessary under Restatement § 228(1) to bring a

tort within the scope of employment. See, e.g. id. at 1170-72;

3
We also note that the rule adopted in Weinberg would not
help Nichols in this case. The D.C. court did not extend the
scope of employment to any assaults arising out an employment-
related dispute, but rather to those "arising out of any dispute
that was originally undertaken on the employer's behalf." 518
A.2d at 991 (internal quotation marks omitted). Here,
Gonzalez's dispute with Nichols was related to his driving on
behalf of Land Transport, but unlike the laundromat employee
arguing about the lost shirts in Weinberg, Gonzalez was not
acting on his employer's behalf when he initiated the
confrontation with Nichols.

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Stoot v. D & D Catering Service, Inc., 807 F.2d 1197, 1200 (5th

Cir. 1987) (maritime law); Williams v. Alyeska Pipeline Service

Co., 650 P.2d 343, 350 (Alaska 1982); Kuehn v. White, 600 P.2d

679, 681-82 (Wash. Ct. App. 1979); see also Manning v. Grimsley,

643 F.2d 20, 24 (1st Cir. 1981) (applying Massachusetts rule

that assault is within scope of employment only if it was in

response to plaintiff's present interference with employee's

duties). We have been given no reason to think that Maine would

leave this company. Indeed, in a related context, examining

vicarious liability for torts committed outside the scope of

employment under Restatement (Second) of Agency § 219(2)(d)

(1958), we noted that the Maine Law Court follows the plain

meaning of that Restatement provision. See Costos v. Coconut

Island Corp., 137 F.3d 46, 49 (1st Cir. 1998). We have no

reason to believe that the plain meaning of Restatement § 228

would not govern here. Under Maine law, a servant's tort is

committed in the scope of employment only if it is actuated, at

least in part, by a purpose to serve the master. It is not

enough that the tort arises out of an employment-related

dispute.

Although Kuehn v. White, 600 P.2d 679 (Wash. Ct. App.

1979), is not a Maine case, it applies the Restatement test used

in Maine to facts similar to the facts here and reached the same

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result. In response to reckless driving by a tractor-trailer

driver, including unsafe passing attempts that almost caused a

collision, the plaintiff motorist made the familiar obscene

gesture (or at least the truck driver believed he had). See id.

at 681. Both vehicles pulled over to the side of the road, a

confrontation ensued, and the truck driver struck the plaintiff

repeatedly with a two-foot-long metal pipe. See id. The truck

driver was later convicted of assault. See id. The Washington

Court of Appeals affirmed the summary judgment for the trucking

company, holding that where the evidence showed that the

employee had "assaulted Kuehn because of his personal anger

towards Kuehn and not because of any intent to serve the

employer," as required by Restatement § 228, the scope of

employment issue could be resolved in the employer's favor as a

matter of law. Id. at 683.

The same is true in this case. Because Gonzalez's

attack on Nichols was not actuated by a purpose to serve Land

Transport, it was not within the scope of Gonzalez's employment,

and Land Transport may not be held vicariously liable. 4 The

4Land Transport also argues that it may not be held liable
for Gonzalez's conduct outside the scope of employment. See
Restatement § 219(2); Costos, 137 F.3d at 48-49. We need not
address this argument because Nichols's claim is premised solely
on his allegation that Gonzalez was acting within the scope of
employment.

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magistrate judge did not err in entering summary judgment for

Land Transport.

Affirmed.

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