ACCEPTED
01-14-00969-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/17/2015 3:43:30 PM
CHRISTOPHER PRINE
CLERK
NO. 01- 14-00969-CV
FILED IN
1st COURT OF APPEALS
IN TIIE FIIIS'| COUIìT OII ,APPEAI,S HOUSTON, TEXAS
AT IIOUS]'ON, TI]XAS 3/17/2015 3:43:30 PM
CHRISTOPHER A. PRINE
Clerk
BI{YAN I]I-ACK
Appellant,
\/
SMITI_I PROI]EC'|IVI] SEIìVICIJS, INC.
Appcllcc.
ON APPEAL IìITOM'|I-IE
I89TI_I JUDICIAL DISTRICT COIJR]' OIì I_IAIìIì.IS COIJN'|Y, '|I]XAS
BIIIII,F OF API'IILLAI\T, I}IIYAI\ III,,,\CK
ORAI- AI{GUMIINT RIIQUIiS1'l:li)
Iìcspcctl'ully S u [r m itl ccì,
LAW OIIFICtrÙS OtrI
PATIìICK G. IIUllll,,\ItD, P.C.
Patrick G. I-lubbarcJ
Texas Ilar No. 101 39500
I075l(ingwoocl Drive, Suitc 203
I-Ior-rston,'fexas 77 339
'felephone: (28 1 ) 358-7035
Facsimile: (281) 358-7008
A'I"f Olli\E Y IrOlì AP l, Il Ltr,.,\.N'l'
Ilryan lllacl<,
IDEN:IITY OIr PAIìTIIIS AND COtlfilslill
Appellant; Ilryan Black
Ilepresented By: Patrick G. Ilubbarcl
Law Offices of Patrick G. I-lubbarcl, P"C"
phubbard @patri cl
writ) .......,....... .,........31
I-looper v. Pitney lSovtes, Inc., 895 S.W.2d 773,777 ('l'ex. ,z\pp"--'l'cx¿rrkana I995,
writ denied); ....29
I-louser v. Smith,968 S.W.2d 542,544 ('L-ex. App.__-u\r-rstin 1998, no pcr.) 30,32,32
IÇng lLanch, Inc. v. Chapntan, 118 S. W. 3d742 ('l'ex. 2003). .... 16
I{elly v. Stone,898 S.W.zd 924, 927 ('l'ex. App.-llastlancl 1995, u,rit clonic t|) ..29
LaBella v. Charlie Thomas, [nc,,942 S.W.2d 127, 137 (Tex. App.--Amarillo
1997, writ clenied) .30,31
Leadon v. IÇntbrottgh llros. Luntber Co., 484 S.W.2cl 567 , 569 ('l'ex. 1972);,26,28
Leyendeclcer & Assocs., Inc. v. Wechler, 6tì3 S.W.2d 369,375 ('l'ex. 1984) ........ 17
1V
Lorant Maintenctnce of Woy, Inc., 14l S.V/.3 c\722_('Iex. App.-Lìl Paso 2004, pcL.
filed). 25,36, 37 ,38
Minyard Food Stores, Inc. v. Goodntan, 80 S.W.3d 573,577 ('I'cx.2002); ..".28,29
Netuspapers, Inc. v. Love,380 S.W.2d 582,589 (Tex.1964) 16,29
l{ixon v. Mt'. Property Managentent Co.,690 S. W. 2wd 546, 548-49 ('l'cx 198-5)
15
Oberpriller,lT0 S.W.2d 607 (Tex" Comm. App.-19a3) ..,.......30
Otis Eng'g Corp. v. Clarlc,668 S.W"2d307,309 ('l'ex. 1983) ,...... 30, 31
Peelcv. Equipntent Services, [nc.,906 S.W.2d 529,534 ('l'cx. App.-San Antor-rio
1995, no writ) "...,....32
Porter v. lVetnir,900 S.W.2d376 (Tex. App.-Austin 1995, no writ) :1?
lLobertson v" Church of God, Int'1,978 S.W.2d 120, 125 ('l'cx. .App.**'l'y|: 1997,
pet. denied) ........32
lLobertson Tanlc Lines, Inc. v. Van Cleave, 468 S.W.2cl 354,357 ('I'cx. I97I) .....29
Sotov. El Paso Natural Gas Co.,942 S"V/.2d 671,680 ('l'cx. App.-lJl Paso 1997,
writ denied) 26,27,29
Texas & jlctc. Ily. Co. v. trIagenlolt,247 S.W.2cl 236 ('L'ex. 1952) ".....1l
Tierra Drilling Corp. v. Detmar, 666 S.V/.2d 661, 662-63 ('l'cx. A1rp.-Corpus
Christi 1984, no writ) ........ 18
Tex. & Pac. Ry. Co. v. I-Iagenloh, 151 'I'ex. 191,247 S.W.2d 236,239 (1952) ....17
l4/al-Mart Stores, Inc. v. Odem,929 S.W.2d 513 ('fex. App.--San Antonirl 1996,
writ denieci) ....."....2(t
Wolff 94 S"W.3d 513 (Tex 2002) ......17
Wrenn v. G.A.T.X Logistics, Inc., 73 S.W.3d 489 ('l'ex. App.-lìort Worth 2002, n<¡
pet.) ..30, 31, 33
ISSUES PRESENTBÐ
rssuE No. 1:
THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION
FOR PARTIAL SUMMARY JUDGMENT, BOTH TRADITIONAL AND
NO-EVIDENCE, ON THE ISSUE OF NEGLIGENCE.
STATBMBNT OF THE CASE
Black filed this suit against Muhammad Zaffør ("Zaffar"), Smith Protective
Services, Inc. ("Smith") and the owners/managers of the condominium complex at
which the relevant events took place. Black alleged that he had been falsely arrested
and maliciously prosecuted following his arrest pursuant to an assault charge by
Zaffar. Black was no-billed by the grand j,rry.
Smith was granted judgment on both traditional and no-evidence summary
judgment motions. A non-jury trial was held, at which Black was granted judgment
against Zaffar, the only remaining defendant.
Black's appeal is only against Smith being granted summary judgment, and
not against Zaffar' s judgment.
STATEMENT OF FACTS
On or about March 6, 2012, Plaintiff, Bryan Black, a resident of Houston,
Texas, The Oaks of Woodlake Townhomes, was visiting a friend in another unit
shortly after 5:00 p.m. His friend had a guest that they were expecting, and the
townhouse complex was a community that had a guard gate at the entryway for
security purposes. One of the security guards at the front gate, MuhammadZaffar,
was an employee of Defendant, Smith Protective Services, lnc. Zaffar refused to
allow the guest into the complex. Bryan Black and his friend spoke to Muhammad
Zaffar and asked him to allow the visitor entrance into the complex, and Zaffar
refused the request in a very rude fashion and called Bryan Black's f¡iend an
offensive name. Guests are routinely permitted entry onÇe they were identified.
This was not the first time that Muhammad Zaffar had refused to allow guests
into the complex, and several complaints had been lodged against him by other
tenants by way of letter and documented oral complaint. Zaffar had refused to allow
guests into the complex, and when confronted about this conduct, he became rude
and standoffish, and offen times threatened the guests. Bryan Black went to the
front of the complex to the guardhouse area and confronted MuhammadZaffar, who
was outside the guardhouse permitting other guests and residents through the
entryway. \When confronted by Bryan Black, Zaffar became very angry and upset
after Bryan Black t"old Zaffar that he felt Zaffar had a bad attitude and performed his
job poorly. Bryan Blaok argued with him and told him he was stupid, but by then
the guest had already left. There was no physical contact with one another, and the
verbal confrontation ended while both persons were outside the guardhouse in plain
sight of others that were coming and going. Bryan Black did not realize at the tirne
how upset Muhammad Zaffar became when his authority was questioned.
Muhammad Zaffar called first called the FBI, and then the Houston Police
Department to make a report that he had been assaulted. The authorities did not
show up, and when Zaffar left work, he stopped by the Houston Police Department
substation and filed a criminal complaint against Bryan Black. Zaffar told the police
that he had been physieally assaulted by Bryan Black who had threatened him and
claimed Black had swung a baseball bat at Zaffar. The police department accepted
Muhammad Zaflar's story as the truth and did not check out Bryan Black's version
of the incident. Zaffar, through the Houston Police Department, fîled criminal
charges against Bryan Black under Section 22.02 of the Texas Penal Code;
Aggravated Assault with a Deadly Weapon; a Znd degree felony that carries a
punishment range of 2 to 20 years in prison.
Two days later on March 8, 2012, when Bryan Black arrived home from
work he was surrounded by l{ouston Police Department Officers in the parking lot
in plain view of other residents, with a shotgun pointed at his head and arrested by
officers and taken to the City of Houston jail. The off,rcers had an aruest warrant and
search warrant, and searched Bryan Black's apartment and automobile while asking,
"Where is the baseball ba|?" No bat was found. From there, he was transported to
the Harris County Jail where after about 48 hours later he eventually was allowed to
arrange for a bail bond and was bonded out so that he could return to work.
Smith Protective Services, Inc. had no written policy in place concerning the
filing of criminal complaints by the Security Company in charge of security on the
premises for alleged wrongs committed on the premises. Further, The Oaks of
Woodlake had video cameras placed at the entrance way by the guard house leading
residents and others that did know better to believe that the actions of those in view
of the cameras would be recorded; however, there was no recording or monitoring
device connected to the cameras in question, and Smith Protective Services, Inc.
knew the cameras were not functioning with recording devices.
For the next few months Bryan Black waited in anticipation and fear of
whether or not he would be indicted by a Harris County Grand Jury. Bryan Black
was required to employ a criminal attomey who fortunately employed a private
investigator who questioned many witness and persons with knowledge of the
situation and determined that there were inconsistencies in Muhammad Zaffar's
story to the police, and that Zaffar had a history of getting angry with tenants and an
unsatisfactory job performance as a security guard involving issues of authority.
When the Grand Jury met and heard all the evidence, they "No Billed" Bryan Black,
thereby exonerating him from the false charges made against him. Even with the
charges being determined to be false, there still stands a public record of an arrest
and charges made against Bryan Black that is a stain on his record for everyone to
see, as he had never been charged or convicted with any criminal charges in the
past.
Other inhabitants of the Oaks of Woodlake condominiums saw the arrest take
place with at least four police cars and many more officers physically detain,
handcufi and arrest Bryan Black with guns pointed at him eausing shear
embarrassment and grief from the incident.
There were two impot1rant incidents shortly before the Bryan Black incident
that put Smith Protective Services, Inc. on notice of Mohammad Zaffar's actions
with those he came into contact with. The first was the Collins incident that
occurred on February I1,2012 and is found in the Dispatcher's log of Smith
Protective Servioes. Records reflect that Forward Air called to talk to someone at
Smith Protective Services, Inc. complaining about Mohammad Zaffar's encounter
with their employee named Torres. When Zaffar was questioned about it he advised
that Torres threatened to shoot him, and that he "might have to call police."
Supervisor, Amaya did not have any recollection of handling this matter, but it was
found in Smith Protective Services, Inc.'s records. That should have been the first
notice that Zaffar was having issues in getting along with persons he encountered on
his job.
The second incident was on February 25, 2012, foufteen days later when Mrs.
Collins, a resident at The Oaks of \Moodlake, wrote a complaint letter about
Mohammad Zaffar, who had called the police while at work and reported that her
son had threatened to shoot him. Apparently Zaffar had detained her grown son at
the entry gate and questioned his coming on the premises when he had done so
every week to visit his elderly mother, and Zaffar was described as becoming angry
over the confrontation and reported the incident to the police as an assault. Smith
Protective Services, lnc. had knowledge of this as the letter was sent to the Oaks of
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incident and was verbally counseled. This was the second of two incidents before
the Black incidents. Two persons coming to his guard gate had threatened to kill
him in a two-week period. Smith Protective Services, lnc. had notice of the fact that
Zaffar had issues with many he encountered, and was unduly paranoid about
persons threatening him and resorted to calling the police when he was confronted
or became angry but there was no such policy in place" On February 2I, in between
these incidents, Zaffar had received a written warning notice about not wearing a tie
and needing a haircut. This was his third notice of some type of warning notice
Zaffar had received, but interestingly enough, Zaffar did not receive a warning
notice about either incident where he alleged he had been threatened.
SUMMARY OF THE ARGUMENT
The areas of negligence were all outlined in the Appellant, Black's responses
to both the No Evidence and Traditional Summary Judgments including the specific
elements of negligence of inadequate hiring, inadequate training, inadequate
supervision, and negligent retention. Evidence was established of Smith Protective
Service's employee, Zaffar, being in the furtherance of his employer's business and
the duty that arose to control third persons' conduct based upon foreseeability and
upon actual knowledge of Zaffar's actions. The failure of Smith Protective Service
to act by either counseling, disciplining, inadequately training, inadequately
supervising or dismissing Zaffar was clearly set out in both of Defendant's
Responses to Summary Judgment. Zaffar's general guard post orders of "deter
criminal activity" were far too vague to deny liability upon course and scope.
ARGUMENT AI{D AUTHORTTIES
These two prior incidents involving Zaffar should have placed Smith
Protective Services, Inc. on notice that there was something very unusual and
serious going on in Zaffar'slife. For two different persons to have allegedly
threatened to kill a security guard (Zaffar) in less than two weeks, and then
for him to threaten to kill them should have placed the employer on notice
that Zaffar had serious issues going on, and that he was either the most
disliked security guard in town, or he was not telling the truth. It should have
been enough to raise a serious red flag with Zaffar's supervisor, Amaya, when
Zaffar allegedly told him on March 6, 2012 that a resident at the Oaks of
Woodlake had gone after him with a baseball bat. Plaintiff believes that by
Smith's inaction in not counseling Zaffar at that moment that filing false
charges against a resident where one works is a serious matter and a crime,
and speaking to the other guard on duty who would have verified that she was
present, but did not witness anything of the sort would have been a must
before telling Zaffar to handle the situation as he saw fit, and should have
notified the Oaks of Woodlake management of the allegations as well as the
Plaintiff. Defendants' failure to act by either dismissingZaffar or removing
him from his post and Defendants' failure to discipline Zaffar acted as an
encouragement to Zaffar to continue his increasingly paranoid behavior and
repofting of false allegations.
In Black's Sixth Amended Original Petition, Black alleged a number of
specific complaints of negligence; the first of which was negligent hiring.
Smith Protective Seruices, Inc. failed to adhere to their own standards by
obtaining information about the 5 years of prior experience that Muhammad
Zaffar had. Zaflar only supplied 2 years of information. Zaffar's application
for employment also contained inaccurate dates of employment according to
the Texas Department of Public Safety's records. Smith also requested
information on the application for 7 years previous job experience, and Zaffar
did not give it to them. Smith failed to adhere to their own requirements to
check prior employment references and only relied upon the fact that Zaffar
passed the state administered security guard test. Before Zaffar was placed at
the Oaks of Woodlake, two other companies had asked Smith Protective
Services to remove him from their locations, so that fact alone should have
alerted Smith Protective that there was something going on with Zaffar to
warrant two other employers asking him to leave.
The Plaintiff also alleged negligence for inadequate training. Such
training should have included the protocol for reporting assaults on guards to
supervisors immediately after their occurrence, and after they had been put on
10
notice that something serious was going on with Zaffar after two similar
occurrences where Zaffar alleged that two persons attempting to enter the
Oaks of Woodlake had threatened to kill him. Smith was negligent for failing
to properly train Zaffar about the illegality of making false reports on persons
attempting to enter the Oaks of Woodlake, and on how to diffuse such
situations before they got to the point of violent threats.
Another point of negligence was negligence for inadequate supervision,
failing to investigate and failing to warn. After knowledge of two prior
incidents on the location of The Oaks of Woodlake, and after two previous
employers had asked Zaffar to be released from duty on their premises, Smith
Protective Services, Inc. should have warned other residents about Zaffar's
propensity to cause problems and Smith should have conducted a reasonable
investigation as to whether Plaintiff committed a criminal act against Zaffar
and should have counseled Zaffar and warned Bryan Black of potential
danger from Zaffar before allowing Muhammad Zaffar to file a criminal
complaint against Bryan Black, a resident of their customer, Oaks of
Woodlake. They further owed a duty to Plaintiff to adequately supervise
Zaffar after knowing that he had claimed two other guests, Nita Collins son
and Mr. Torres, an employee of Forward Air had allegedly threatened to
shoot Zaffar andyet took no significant actions to properly supervise Zaffar,
11
remove him, or seek professional help for him.
Plaintiff, Black, also claimed that Smith Protective Services should
have removed Muhamm ad Zaffar from the Oaks of V/oodlake immediately
upon learning of Zaffar's claim that a visitor to the property, Nick Collins,
had threatened to shoot him and Zaffar called the police. Smith Protective
Services' Ruben Amaya verbally counseled Zaffar and should have given him
instructions on how to diffuse such situations or should have either discharged
Zaffar as an employee or moved him to a different security post. Smith
Protective Services, Inc. should have addressed Zaffar's claim that Mr. Torres
from Forward Air had threatened him with bodily harm by either discharging
Zaffar as an employee or moving him to a different security post, and any
employer should have reasonably foreseen that Zaffar had a problem dealing
with people he encountered, and as such began making false claims against
them.
Black also alleged that Smith Protective Services, Inc. was negligent
in not demanding that the security cameras and recorders be working at the
time their guards were on duty, or to warn residents that such cameras were
not recording. Such negligence as a proximate cause of the wrongful charges
filed against Plaintiff as had there been a recorded record as advertised on the
12
front gate, then it would have given the police something to look at to
determine that no assault had occurred.
IJnder the doctrine of respondeat superior, an employer may be held
vicariously liable for the intentional or negligent acts of an employee if the act is (1)
within the scope of the actual or apparent general authority of the employee, (2) in
furtherance of the employer's business, and (3) for the accomplishment of the object
for which the employee was employed. Muhammad Zaffar was acting in the Çourse
and scope of Smith Protective Security Services, Inc.'s employment as a security
guard, and it is not ordinarily within the scope of a servant's authority to file
criminal charges against residents for whom they should be protecting, but if a
resident commits an assault against a Smith Protective Services' employee, then the
employee has the right to protect himself andlor file criminal charges for assault.
Smith Protective Services, Inc.'s actions of failing to take any action or measures in
the two prior alleged assault incidents that it gave "encouragement and assistaîçe"
to Zaffar in the furtherance of his false criminal complaints of assault. Each tirne
Zaffar got a little more confidence to go a step further. The first incident was just a
eomplaintby a contractor who was doing work at the townhome complex. The next
was a call to the police and the making of a report of alleged threats to kill that he
decided not to follow up on, and the third resulted in the actual pursuing of a
criminal complaint after Smith Protective Services failed to put a halt to Zaffar's
13
career of making fälse criminal complaints. Smith Protective Services is responsible
to Plaintiff under the theory of respondeat superior for proximately causing the
damages caused by Zaffar.
Smith's primary argument against the respondeat superior argument was that
Zaffar was outside the course and scope of duties at Smith primarily because he
waited until after his shift to go to the police substation and report the alleged
assault, but the facts remain that Zaffar called not only the Houston Police
Department (CR 200), but first called the FBI, and the Houston Police Department
did come out to the apartment complex, but Zaffar had already left work. Smith
further alleges that reporting of crimes was not part of the duties of a security
officer. Smith's own post orders they refer to in their Motion for Summary
Judgment stated: "Purpose: Gate access control, deter criminal activity and from
3:00 pm to 5:00 am patrol the property providing visual deterrence." Deterring
criminal activity is a very broad term that could be construed by a jury of reasonable
minds to also mean taking action against anyone who allegedly threatened a guard
or tried to get access to the property for themselves or others.
Smith filed a second Motion for Summary Judgment, entitled, "No Evidence
Motion for Partial Summary Judgment" (CR 432-438) on Plaintiffls issues of fraud,
negligent hiring, general negligence and intentional infliction of emotional distress.
t4
Plaintiff amended their petition (CR 457-467) dropping the claims of fraud and
intentional infliction of emotional distress, leaving only the claims of negligence.
Smith alleged that there was no evidence of negligence, proximate cause or
foreseeability.
The Court granted an lnterlocutory Summary Judgment (CR 62I) on August
2t, 2AI4 in favor of Smith on both panfial summary judgments. The remainder of
the case was called to trial on September 17, 2014 and the Court granted a Final
Judgment (CR 647-648).
Standard of Review
Traditional Motion for Summary Judgment
The standards in viewing summary judgment evidence are:
(l)The Movant for summary judgment has the burden of showing that there is no
genuine issue of fact and that !t ic entitlcd rn i'rlg¡¡¡s¡f as a matter of larv.
(2)In deciding whether there is a material fact issue precluding summary judgment,
evidence favorable to the non-movant will be taken as true.
(3)Every reasonable inference must be indulged in favor of the non-movant and any
doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S. W.
Zwd 546,548-49 (Tex. 1985).
t5
If the evidence favorable to Plaintiff is to be taken as true that is contained in
the Exhibits, Affidavits, and Depositions, then there were clearly sufficient
elements of each Çause of action listed in the Plaintiff s Sixth Amended Original
Petition. Accordingly, Appellant's motion should be denied.
No-Evidence Summary Judgment
Plaintiff has presented evidence raising issues of material fact as to the
elements specified in Appellant's motion. No-evidence summary judgment is
improper if more than a scintilla of evidence exists which conclusively establishes
the basic elements of Appellant's claims. Appellant has more than met that burden
in this case. See King Ranch, Inc. v. Chapman. 118 S. W. 3d742 (Tex. 2003).
The Appellant frled two separate responses with attached exhibits opposing
both Motions for Summary Judgment, and the following arguments and evidence
were used in response thereto:
R.espondeat Superior Argument
Appellant argued that liability upon Smith Protective Services, Inc. rested at
least in parl on one parlicular form of vicarious liability the doctrine of
-
respondeat superior. This doctrine "holds the master liable for the torts of his
servant committed in the course of his employment" and is "essentially a policy
doctrine...." Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (.Tex.I964). "Except
for acts personally directed by the principal, the liability of the master is founded
t6
upon the contractual arrangement with the seruant; either expressed or implied
which vests in him the right to control the details of the work." Id.; see ctlso
her & Assocs., Inc. v. Wechter.683 S.W.2d 369.375 (Tex.19B4
(employer and employee were jointly and severally liable for tort committed by
employee in the course and scope of his employment). "The theories of vicarious
and joint and several liability are judicially created vehicles for enforcing remedies
for wrongs committed." Dutcher v. Owens, 647 5.W.2d948.950-51 (Tex. 1983).
"Justified on public policy grounds, they represent a deliberate allocation of risk."
Id.; see also Wol.{f 94 S.W.3d at 541.
"The typical respondeat superior claim involves an allegation of negligence
on the part of the employee" occurring within the course and scope of the
employee's employment. Buck v. Blum, 730 S.W.3d 285^ 288 (.Tex.App.-Houston
[14th Dist.l 2004. no pet.). "It is not ordinarily within the scope of a seryant's
authority to commit an assault on a third person." Tex. & Pac. Ry. Co. v. Hagenloh,
151 Tex. 191,247 S.W.2d 236,239 (1952). However, an assault aan be
considered to be "in the course and scope of employment when the nature of the
employment necessitated the use of force (such as the duty to guard property fdeter
criminal activity]) so that the use of force may be in furtherance of the employer's
business even if more force than necessary is applied ." Buck, 130 S.W.3 d at 289 n.
2 (citing Hagenloh, 247 S.W.2d at 239); see also Durand v. Moore, 879 S.W.2d
t7
196, 199 (Tex.App.-Houston ll4th Dist.l 1994, no writ) ("When an employee
commits an assault, it is for the trier of fäct to determine whether the employee
ceased to act as an employee and acted instead upon his own responsibility.");
Tierra Drilling Corp. v. Detmar, 666 S.W.2d 661, 662-63 (Tex. App.-Corpus
Christi 1984, no writ) (no evidence supported finding that employee was acting
within the course of his employment, in pursuit of his duties, or in the furtherance
of Tierra's business when he assaulted co-worker).
Fufther, Plaintiff alleges in their Sixth Amended Original Petition (CR 457-
467) that Defendant, Smith Protective Selices, Inc.'s actions of failing to take any
action or measures in the prior alleged assault incidents that it gave
"enoouragement and assistance" to Zaffar in the furtherance of his false criminal
complaints of assault (See time line CR 78-83). The simplest explanation requires
the knowledge of the short history of Mohammad Zaffar on the post at Oaks of
Woodlake. The best way to understand the timeline is to look at the timeline
created by Plaintiffls expert witness, Patrick Murphy. There were two importan|
incidents shortly before the Bryan Black incident. The first was the Forward Air
(Torres) incident (CR-371) and the second, the Collins incident (CR-370)
mentioned in both the Amaya and Bell depositions. The first incident occurred on
February 11,2012 and is found in the Dispatcher's log (CR-371) and is mentioned
in both the Amaya and Bell depositions. Records refleot that Forward Air called to
l8
talk to someone at Smith Protective Services, Inc. about Moharnm ad Zaffar's
encounter with their employee named Torres. When Zaffar was questioned about
it he advised that Torres threatened to shoot him, and that he "might have to call
police." Amaya did not have any recollection of handling this matter, but it was
found in Smith Protective Services, Inc.'s records. (CR- 371)'Ihat should have
been the first notice that Zaffar was having issues in getting along with persons he
encountered on his job.
The second incident was on February 25, 2012, fburteen days later when
Mrs. Collins, a resident at The Oaks of Woodlake, wrote a complaint letter (CR-
370) about Mohammad Zaffar, who had called the police while at work and
reported that Mrs. Collins son had threatened to shoot him" Apparently Zaffar had
detained her grown son at the entry gate and questioned his coming on the
premises when he had done so every week to visit his elderly mother, and Zaffar
was described as becoming angry over the confrontation and reported the incident
to the police as an assault. Both the Oaks of Woodlake and Smith Protective
Services, Inc. had knowledge of this as the letter was sent to the Oaks of Woodlake
and forwarded on to Smith Protective Services, Inc. Apparently Zaffar denied the
incident, although there is a Houston Police Department record where he called the
police out (CR-290 ) and the letter from Collins' mother, and an admission from
Zaffar's supervisor that Zaffar was verbally counseled. This should have been the
19
second notice that he was having difficulty getting along with tenants and their
guests and perhaps that he had exhibited episodes of paranoia over the incidents.
Two persons coming to his guard gate had threatened to kill him in a two-week
period. This second incident was only 14 days after the first. At that point the
supervisor at Smith Protective Services, Inc. should have seen a pattern here that
Zaffar could not get along with many he encountered, and perhaps was unduly
paranoid about persons threatening him and resorted to calling the police when he
was confronted or became angry. On February 21, in between these incidents,
Zaffar had received a written warning notice about not wearing a tie and needing a
haircut. This was his third notice of some type of warning notice Zaffar had
received, but interestingly enough, Zaffar did not receive a written warning notice
about either incident where he alleged he had been threatened; thereby reflecting
the indifference of the employer, Smith.
Each time Zaffar got a little more confidence to go a step fuither. The first
incident was just a complaint by a worker who was doing work at the townhome
complex. The third instance was when Zaffar threatened Shelley White's boyfriend
and gave him trouble in coming on the properly (CR 92-94). The next was a call
to the police and the making of a report of alleged threats to kill that he decided not
to follow up oû, and the third resulted in the actual pursuing of a criminal
20
complaint after Smith Protective failed to put a halt to Zaffar's career of making
false criminal complaints.
Smith Protective Services, Inc. claimed that they did not authorize, benefrt
from or ratify the conduct of Mohammad Zaffar, but the facts show otherwise, and
Appellant's expert witness said otherwise (CR 78-83). After explaining the time
line, Patrick Murphy stated in his report: "at That point the supervisor at Smith
Protective Services, Inc. should have seen a pattern here that Zaflar could not get
along with many he encountered, and perhaps was unduly paranoid about persons
threatening him and resorted to calling the police when he was confronted or
became angry (CR 79). These two prior incidents should have placed ...Smith
Protective Services, lnc. on notice that there was something very unusual and
serious going on in Zaffar's life. For two different persons to have threatened to
kill a security guard in less than two weeks should have placed everyone on notice
that Zaffar had serious issues going on, and that he was either the most disliked
security guard in town, or he was not telling the truth. It should have been enough
to raise a serious red flag with Zaffar's supervisor, Amaya. (CR-80). "The failing
to counsel or reprimand Zaffar on the two prior occasions or counsel with him or to
send him to counseling or remove him from this post could constitute negligence
and ratification of Zaffar' s act" (CR-80).
21
These two prior incidents should have placed Smith Protective Services, Inc.
on notice that there was solnething very unusual and serious going on in Zaffar's
life. For two different persons to have threatened to kill a security guard in less
than two weeks should have placed everyone on notice that Zaffar had serious
issues going on, and that he was either the most disliked security guard in town, or
he was not telling the truth. It should have been enough to raise a serious red flag
with Zaffar's supervisor, Amaya, when Zaffar allegedly told him on March 6,2012
that a resident at the Oaks of \Moodlake had gone after him with a baseball bat.
Plaintiff believes that by Smith's inaction in not counseling Zaffar at that moment
that filing false charges against a resident where one works is a serious matter and
a crime, and speaking to the other guard on duty who would have verified that she
was present, but did not witness anything of the soft would have been a must
before telling Zaffar to handle the situation as he saw frt. These facts present a jury
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failing to counsel or reprimand Zaffar on the two prior occasions or counsel with
him or to send him to counseling or remove him from this post could constitute
negligence and ratification of Zaffar's act as is now alleged in Plaintiffs Sixth
Amended Original Petition. Smith may have believed they would benefit fiom
such inaction by not having to find another guard to work the post at the Oaks of
Woodlake, and their cavalier attitude of saying they do not want to interfere with
22
one of their guards filing a criminal complaint is apparently a company cop-out
policy that should be questioned and could constitute a negligence finding by a
finder of fact.
With regard to the question of whether the actions of Smith Protective
Service, Inc. were enough to cause the prosecution, Smith Protective Service
should have known that the likelihood of the information provided by Mohammad
Zaffar was false based upon the two previous incidents, and if they had questioned
their other guard on duty, they would have known for sure it was, and the failure to
investigate the incident is a further indication of Smith's indifference.
Further evidence indicates that Estella Bell, the assistant manager, spoke to
Muhamm ad Zaffar imrnediately after the alleged Rryan Black incident (CR 148)
and there was another guard in the guard house at the time of the alleged incident
that did not see any incident with a baseball bat (CR 149) even though she was
present in the same guard booth and would have seen it had such an incident taken
place. Estella Bell further testified that most workers were afraid to work with him
(Zaffar) because they always got into it with him (CR 149). Estella Bell stated in
her deposition: "With the other two incidents on record, each one of those persons
said that he (Zaffar) threatened to shoot them, "That he's not going to let nobody
hurt him, and he will shoot them if he had to". And he was going to call the FBI.
That was always his words. "(CR 166)
As far as evidence that there was an absence of probable cause, see the
affidavit of Bryan Black, Plaintiff, as (CR 403-407) when Zaffar told 'Black if
Black didn't stop the discussion with Zaffar in the parking lot that Zaffar would
call the police and report something that did not actually happen (which he
eventually did follow through on).
Finally, the deposition of Shelley White, Exhibit 4, stated that she was a
witness to the entire conversation in the parking lot in front of the guard booth and
the alleged confrontation between MohammadZaffar and Bryan Black because her
boyfriend had had some confrontation with the same guard a few weeks earlier,
and she was interested in what Zaffar was up to, so she stopped and listened, and
she confirms that there was no confrontation with a baseball bat, and that Bryan
Black did not have a baseball bat and never threatened Zaffar. There is ample
evidence to show that no actual assault or attempted assault ever took place.
Employers usually are not always liable for the intentional or
negligent misconduct of their employees. But when an employer's employees,
agents, and supervisors go astray, the employer can be held liable for their actions
under several theories, including respondent superior, negligent hiring, training,
supervision, and retention. In addition, the employer may be held strictly liable in
cases where supervisors engage in employment discrimination that results in a
"tangible job detriment" to an employee.
24
Recently, in Loram Maintenance of lV'ay, Inc. v. Ianni, the El Paso
Cour-t of Appeals upheid a jury verdict that imposed liability on the ernployer when
its employee shot and severely injured a police officer while the employee was ofÊ
duty and away from his job site. The jury awarded the plaintiff police officer $1.3
million in actual and punitive damages.for his injuries. Although Loram represents
an extreme case of imposing liability on an employer for the intentional acts of its
employees, it serves as an example of the liability employers may suffer. Liability
may be imposed on companies to re-examine how employers hire, supervise,
retain, and train their employees.
The expert report of Patrick Murphy (CR-379-384) was used as
evidence to contest the summary judgment. It outlines in detail the specific
elements present that provide evidence of inadequate hiring, inadequate training,
inadequate supervision, negligent retention ("As early as February II,2012, Smith
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and threatened to shoot a fellow guard fsee dispatcher's daily 1og, Feb. I1,2012,
used as Exhibit 2, Deposition George Black] threatening to shoot another is a
criminal act) (CR 380), and negligent security against Smith Protective Services,
the most important of which seems to be the failure to remove Zaffar after they had
notice that he had committed a criminal act and threats against other residents prior
to Bryan Black. Expert Murphy summarizes the events and concludes that Smith
25
Protective Services failed to act in a reasonable and ordinary manner and that such
negligence was a proximate cause to Bryan Black's arrest and ultimate harm
caused by them. Smith Protective Services had no expert witness evidence.
Vicarious Liability/Respondeat Superior
Under the doctrine of respondeat superior) an employer may be held vicariously
liable for the intentional or negligent acts of an employee if the act is (l) within the
scope of the actual or apparent general authority of the employee, (2) in
furtherance of the employer's business, and (3) for the accomplishment of the
object for which the employee was employed. See Baptist Mem'l Hosp. dys. v.
Sampson, 969 S.W.2d 945, 947 (Tex. 1995) (an employer, as principal, may be
held liable for tortious acts committed by its employees as agents in the course and
scope of their employment under the doctrine of respondeat superior); Soto v. El
Paso l{atural Gas Co.,942 S.W.2d 671,680 (Tex. App.-El Paso 1997, writ
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Antonio 1996, writ denied) (corporate liability for an employee's negligent torts is
governed by the same rules as those that determine the liability of a corporation for
intentional torts). In other words, an employer is liable for its employee's acts
where they fall within "the course and scope of his employment." Leødon v.
Kimbrouh Bros. Lumber Co.,484 S.'W.2d 567 (Tex. 1972). The court in Soto v.
El Paso Natural Gas Co.,942 S.V/.2d 671,680 (Tex. App.-El Paso 1997, writ
26
denied) discussed what actions are within the course and scope of employment.
The case aiso serves a prime example to employers of what not to do when faced
with a rogue employee. In Soto, the plaintiff sued her employer, El Paso Natural
Gas, for sex discrimination based on sexual harassment, assault and intentional
infliction of emotional distress ("IIED"). Plaintiff worked as a secretary and was
subjected to repeated harassment from a fellow employee, who called her
"lopsided" after she underwent a mastectoffiy, made repeated comments to her that
were sexual in nature, and at one point touched her breast while he yelled at her.
Id. at 675. The plaintiff reported most of the incidents to her supervisors, and
supervisors witnessed several of the events. However, the supervisors would
ignore her comments, tell her that "that's Tom," or tell her to ignore Tom and walk
away from him because he would not listen to anyone. Id. After she reported the
inappropriate touching to the Human Resources department, they conducted an
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created a hostile work environment. Id. at 675-76. Despite warnings to the
contrary Tom nevertheless continued to harass the plaintiff and stated that he had
set "Human Resources straight." Id. at 676. It was not until after Plaintiff filed
suit that El Paso finally disciplined Tom by demoting him and advising him to "fix
his language." Id.
27
The trial coutt granted summary judgment to the company. Plaintiff
appealed. The court noted that the incident centered around Tom becorning angry
with Plaintiff and berated her for not typing some labels for him in a timely
manner. Id. at 681. The court held that summary judgment was precluded because
the inappropriate touching occurred at work and during regular hours. The court
reasoned that typing was a regular part of plaintiff s duties, and the incident arose
out of Tom's displeasure with her work and not out of personal animosity towards
her. Id. The court also rejected the company's argument that it had taken prompt
remedial action once it was informed of Tom's actions based on evidence that
management actively discouraged employees from complaining directly to human
resources (i.e., without frrst going through management) and the company did not
punish or correct Tom's actions until after plaintiff filed her EEOC charge. Id. at
680. In effect, the employer expanded Tom's job duties to include harassing the
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