Avis v. Zeirei Agudath Israel

Reginald MIDDLEBROOKS, Frank Odom, Brenda P. Ross, Donna Scott, Otha Albritten, et al.,
Plaintiffs-Appellees,

v.
HILLCREST FOODS, INC., d.b.a. The Waffle House, Defendant-Appellant,

Hal Hanley, Defendant.

Reginald Middlebrooks, Sandra Middlebrooks, as next friend of Keshawna Tyler, Sandra Middlebrooks,
as next friend of Dacari Middlebrooks, Frank Odom, as next friend of Carla Odom, Brenda P. Ross, as next
friend of Brenda M. Ross, Leah Creque-Harris, as next friend of Kyla Harris, and Donna Scott, as next friend
of Cory Scott, Plaintiffs-Appellees-Cross-Appellants,

v.
Hillcrest Foods, Inc., d.b.a. The Waffle House, Defendant-Appellant-Cross-Appellee,

Hal Hanley, Defendant.

Nos. 99-10165, 99-10734.

United States Court of Appeals,
Eleventh Circuit.

July 11, 2001.

Appeals from the United States District Court for the Northern District of Georgia. (No. 97-02411-CV-TWT),
Thomas W. Thrash, Judge.

Before WILSON, COX and JOHN R. GIBSON*, Circuit Judges.

JOHN R. GIBSON, Circuit Judge:

Hillcrest Foods, Inc., d.b.a. The Waffle House, appeals from a judgment entered against it on a claim
for intentional infliction of emotional distress brought by Reginald Middlebrooks and seven other plaintiffs.1
Hillcrest argues that it is entitled to judgment as a matter of law for numerous reasons, that the Middlebrooks

group was not entitled to punitive damages, and that the district court should have ordered either a new trial

or a remittitur. The Middlebrooks group cross appeals, arguing that the district court erred in instructing the
jury on their race discrimination claim and that, if we remand for a new trial, they are entitled to re-try this

claim. We affirm.

*
Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
1
The other plaintiffs are Keshawna Tyler; Sandra Middlebrooks, as next friend of Dacari
Middlebrooks; Carla Odom; Brenda Ross; Kyla Harris; Cory Scott; and Otha Albritten, as next friend
of Corinthia Albritten. Tyler, Odom, Ross, Harris, and Scott were minors at the time of the incident, and
each was originally represented by a parent acting as next friend. At trial, the district court orally granted
Hillcrest's motion to substitute them as plaintiffs in place of their parents. For ease of reference, we also
refer to Dacari Middlebrooks and Corinthia Albritten, who were minors at the time of trial, as plaintiffs.
 On November 22, 1996, the members of the marching band of North Atlanta High School were on

the way home from an out-of-town football game. Around midnight, they stopped in Commerce, Georgia
to eat. The buses parked at McDonald's, and most band members remained there. A group numbering at least

twenty or twenty-five went to Waffle House along with Middlebrooks, who was an adult chaperone. Some

of the students ordered and received food and drinks; some ordered, but received only their drinks or nothing;
and others were not waited on. The cook, Hal Hanley, who is white, was taking some food off the grill when

he turned and said that the motherfuckers who weren't buying anything were going to have to get out and that

he was not going to serve any niggers.2 Two of the plaintiffs heard both the profanity and the racial epithet,

one heard the profanity, and the other five heard nothing.
Hanley then called 911 and stated that a "bus load of black people" were in Waffle House, that some

were throwing things which had hit him in the head, and that, "Y'all need to send somebody down here to

clear 'em all out before I get a damn knife to the son of a bitches." During the call, Hanley told a Waffle
House server that people were throwing things at him, and she responded, "Oh, I didn't know that."
Hanley asked the responding officer, Sergeant Russ Myers, to clear the group from the restaurant.

Myers asked them to leave, and they complied. Hanley then locked the door and turned the lights off. The
band members congregated in the Waffle House parking lot and then walked back to McDonald's. Most were
upset, and some were crying. When the band members returned to their buses and left, the lights were back

on at Waffle House and there were customers inside the restaurant.
Hanley testified that the band group was loud and boisterous and that at least two students threw
coffee creamers at him. Hanley, who has only a partial left arm, testified that at least three students called

him a cripple. None of the other witnesses testified that anyone threw things at Hanley or ridiculed him.

Myers testified that when he arrived at Waffle House, the band members were not unruly or loud and they

appeared to be behaving very well. One of the plaintiffs testified that the group was excited and that some
band members were being loud. Another testified that he poured salt on a companion's head.
Middlebrooks and seven of the band members, all of whom are African American, brought claims

against Hanley and Hillcrest for racial discrimination under 42 U.S.C. § 1981 and for intentional infliction

2
At trial, Hanley admitted using profanity, but denied using a racial epithet.
of emotional distress under state law. The district court dismissed Hanley before trial.3 The jury found for

Hillcrest on the discrimination claim, but found in favor of Middlebrooks and the seven band members on
the intentional infliction of emotional distress claim. It awarded $5,000 in actual damages to each plaintiff

and a total of $400,000 in punitive damages: $25,000 to Middlebrooks; $45,000 to Sandra Middlebrooks,

as next friend of Dacari Middlebrooks; and $55,000 to each of the remaining six plaintiffs.

I.
Hillcrest argues that a variety of reasons entitle it to judgment as a matter of law. It contends that it

cannot be liable for Hanley's actions because he was acting outside the scope of his employment and because
there was no evidence that it negligently hired or retained him; that the plaintiffs did not prove a prima facie

case of intentional infliction of emotional distress because Hanley's conduct was not extreme and outrageous,

the conduct was not directed at all of the plaintiffs, and none of the plaintiffs suffered severe emotional
distress; and finally, that the plaintiffs were not entitled to punitive damages because there was no evidence
of conduct by Hillcrest that would support an award and because punitive damages are not available under

Ga.Code Ann. § 51-12-6 (2000) where the only injury is to the peace, happiness, or feelings of a plaintiff.
The Middlebrooks group argues that Hillcrest failed to preserve these arguments in its motion for judgment

as a matter of law.
A motion for judgment as a matter of law "shall specify the judgment sought and the law and the
facts on which the moving party is entitled to the judgment." Fed.R.Civ.P. 50(a)(2). This motion can be

renewed after trial under Rule 50(b), but a party cannot assert grounds in the renewed motion that it did not

raise in the earlier motion. Litman v. Massachusetts Mut. Life Ins. Co., 739 F.2d 1549, 1557 (11th Cir.1984).

The rule protects the non-moving party's right to cure deficiencies in the evidence before the case is submitted

to the jury. Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir.1998). The moving party cannot

ambush the court and opposing counsel after the verdict when the only remedy is a completely new trial.

National Indus., Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1549 (11th Cir.1986).

At the close of the plaintiffs' evidence, Hillcrest moved for a directed verdict.4 The court took the

3
In its briefs on appeal, Hillcrest argued that this dismissal precludes its vicarious liability for
Hanley's actions. At oral argument, Hillcrest's counsel conceded that the dismissal did not act as a ruling
in Hillcrest's favor. In light of this concession, we need not address those of Hillcrest's arguments that are
premised on the dismissal issue.
4
Although Hillcrest's counsel used the phrase "directed verdict," he obviously intended to move for
judgment as a matter of law pursuant to Rule 50(a). See Fed.R.Civ.P. 50 advisory committee's note to
motion under advisement and stated that it would hear from Hillcrest after it presented its evidence. At the

close of all the evidence, Hillcrest again moved for judgment as a matter of law and was heard on its motion.

With regard to the intentional infliction claim, Hillcrest argued primarily that the dismissal of Hanley
precluded its liability for his actions. At the time, the parties were treating negligent hiring as a separate

claim, and Hillcrest argued that no evidence showed it had notice of Hanley's propensity to discriminate on

the basis of race. Hillcrest also argued that punitive damages were not warranted because there was no

evidence that its actions showed willful misconduct, malice, fraud, wantonness, oppression, or conscious
indifference.

During its motion for judgment as a matter of law at the close of all the evidence, Hillcrest did not

argue that the plaintiffs failed to prove a prima facie case of intentional infliction of emotional distress or that
Georgia law precludes an award of punitive damages for injuries to a plaintiff's peace, happiness, or feelings.

Although Hillcrest also failed to argue that there was insufficient evidence that Hanley was acting within the
scope of his employment, the Middlebrooks group mentioned the issue at that time. The Middlebrooks group
also addressed the negligent hiring claim in some detail.

In its post-trial motion for judgment as a matter of law, Hillcrest raised all of the arguments it raises
on appeal. The Middlebrooks group argued that Hillcrest failed to preserve most of these arguments in its

motion for judgment as a matter of law made at the close of all the evidence. The district court denied
Hillcrest's post-trial motion, addressing most of its arguments, but holding that Hillcrest had not preserved
the argument that section 51-12-6 precludes an award of punitive damages.
We will not reverse the district court's denial of Hillcrest's Rule 50(b) motion for judgment as a matter

of law on the basis of arguments that Hillcrest did not raise in support of its Rule 50(a) motion. See Simmons

v. City of Philadelphia, 947 F.2d 1042, 1077 (3d Cir.1991); CMM Cable Rep, Inc. v. Ocean Coast Props.,

Inc., 97 F.3d 1504, 1530-31 (1st Cir.1996). We conclude that the issues preserved during the hearing on

Hillcrest's Rule 50(a) motion are whether there was sufficient evidence to support findings that (1) Hanley
acted within the scope of his employment; (2) Hillcrest negligently hired or retained Hanley; and (3)

Hillcrest's conduct was adequately egregious to support an award of punitive damages. Because Hillcrest
failed to argue that there was insufficient evidence to support a prima facie case of intentional infliction of

emotional distress and that Georgia statutory law precludes an award of punitive damages in a case such as

1991 amendment.
this, we will not address these claims.

We review the district court's ruling on a motion for judgment as a matter of law de novo,
considering the evidence and the reasonable inferences drawn from it in the light most favorable to the

nonmoving party. Slicker v. Jackson, 215 F.3d 1225, 1229 (11th Cir.2000). Judgment as a matter of law is

appropriate only if the evidence is so overwhelmingly in favor of the moving party that a reasonable jury

could not arrive at a contrary verdict. Id.

A.
Hillcrest argues that it is entitled to judgment as a matter of law because there was no evidence that

Hanley was acting within the scope of his employment or that it negligently hired or retained him. Respondeat
superior and negligent hiring or retention were alternate theories under which the jury could find Hillcrest

liable for Hanley's actions.

A master is liable for the torts of its servant if they are committed in the prosecution and within the
scope of the master's business. Ga.Code Ann. § 51-2-2 (2000). Under Georgia law, "[a]s a general rule, the

determination of whether an employee was acting within the scope of his employment is a question for the

jury; however, in plain and indisputable cases, the court may decide the issue as a matter of law." Waters

v. Steak & Ale of Georgia, Inc., 241 Ga.App. 709, 527 S.E.2d 592, 594 (2000). This is not a case that falls

within the "plain and indisputable" exception.
Hanley was cooking when he turned and used offensive language. He identified himself as a Waffle
House employee when he called the police, and he told the responding officer that he was in charge. Hanley

testified that he believed he was doing his job when he called the police. He also testified that he had to

handle the situation because no manager was present at Waffle House that night. Based on this evidence, a

reasonable jury could conclude that Hanley acted within the scope of his employment.
Under Georgia law, liability for negligent hiring or retention requires evidence that the employer
knew or should have known of the employee's propensity to engage in the type of conduct that caused the

plaintiff's injury. See Alpharetta First United Methodist Church v. Stewart, 221 Ga.App. 748, 472 S.E.2d

532, 536-37 (1996). Hanley testified that Hillcrest's district manager knew that he had been involved in an

earlier altercation with a customer where a server called the police. During this altercation, the customer
came over the counter, and Hanley defended himself with a knife in an attempt to cut the customer's throat.

Another Hillcrest manager testified that it would not surprise him to learn that Hanley would use profanity
or make racist remarks, although he would be surprised that Hanley used this language in front of customers.

A reasonable jury could conclude that Hillcrest knew or should have known of Hanley's propensity to engage
in the sort of conduct that occurred in this case.

Because a reasonable jury could find that Hanley acted within the scope of his employment and that

Hillcrest negligently retained him, the district court did not err in denying Hillcrest's motion for judgment as

a matter of law.
B.

Hillcrest argues that the issue of punitive damages should not have been submitted to the jury because
there was no evidence that its actions showed the type of conduct Georgia law requires to support an award

of punitive damages. See Ga.Code Ann. § 51-12-5.1(b) (Supp.1996) (requiring clear and convincing

evidence of "willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which
would raise the presumption of conscious indifference to consequences").

Hillcrest's argument rests on its mistaken belief that the company itself must have taken some action
that justifies an award of punitive damages. Under Georgia law, an employer is liable for punitive damages

for the acts of its agent if the agent's conduct is sufficient to support an award of punitive damages. Gasway

v. Atlanta & West Point R. Co., 58 Ga. 216 (1877); Sightler v. Transus, Inc., 208 Ga.App. 173, 430 S.E.2d

81, 81-82 (1993). Hanley's actions—including the use of profanity and a racial epithet, calling the police,
and having the students removed from Waffle House—are the sort of willful misconduct that suffices to

present a jury question on whether the Middlebrooks group was entitled to punitive damages. Cf. Deavers

v. Standridge, 144 Ga.App. 673, 242 S.E.2d 331, 334 (1978) (in claim for wrongful repossession, evidence

that defendants "blocked-in" plaintiff's car and told him that he could "walk his ass home" presented a jury
question on whether punitive damages were justified). The district court correctly ruled that Hillcrest was

not entitled to judgment as a matter of law on the punitive damages issue.
II.

Hillcrest argues that the district court erred by failing to grant a new trial because the verdict was

against the great weight of the evidence. We review the denial of a motion for a new trial for abuse of

discretion. Wood v. Morbark Indus., Inc., 70 F.3d 1201, 1206 (11th Cir.1995). Deference to the district court

"is particularly appropriate where a new trial is denied and the jury's verdict is left undisturbed." Rosenfield

v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir.1987).
 Hillcrest offers no argument in support of its contention that the verdict was against the great weight

of the evidence. In denying the motion for a new trial, the district court stated, "I don't believe that the jury
verdicts were contrary to the great weight of evidence, although as I've said, there was evidence from which

a jury could have returned a verdict in favor of the defendant." We see no abuse of discretion in this

determination.

III.
Hillcrest also argues that errors in the admission of evidence and in the jury instructions require a

new trial. We review a district court's rulings concerning the admissibility of evidence for abuse of discretion.

Palmer v. Board of Regents, 208 F.3d 969, 973 (11th Cir.2000). Jury instructions are subject to de novo

review, and we "determine whether they misstate the law or mislead the jury to the prejudice of the objecting

party." Id.

A.
Hillcrest argues that firing Hanley was a subsequent remedial measure and that his termination notice
should not have been admitted into evidence. Hillcrest moved to exclude evidence of Hanley's termination,
and the district court ruled inadmissible any evidence of Hanley's misconduct that occurred after the incident

involving the Middlebrooks group. The termination notice was redacted in accord with this ruling. Hillcrest
then consented to admission of the redacted notice, precluding any argument on appeal that its admission was

error.
Hillcrest also argues that evidence of Hanley's previous altercation with a customer should not have
been admitted because it was irrelevant and its prejudicial effect outweighed any potential probative value.

The district court held that the evidence was relevant to the issues of negligent hiring or retention and punitive

damages. Because the probative value of this evidence was not outweighed by any prejudice, the district
court did not abuse its discretion by ruling it admissible.

B.

Hillcrest argues that the district court should not have instructed the jury on punitive damages for two
reasons: first, there was no evidence that Hillcrest engaged in any conduct that would warrant punitive

damages; and second, Georgia law precludes an award of punitive damages where the only injury is to the

peace, happiness, or feelings of the plaintiff. Hillcrest failed to object to the punitive damages instruction on

either ground before the jury retired to deliberate, thus waiving its right to raise these issues on appeal. See
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir.1999); Fed.R.Civ.P. 51. We therefore

review for plain error and reverse only if the error is so fundamental that a miscarriage of justice has resulted.

Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir.1999).

Hillcrest's first contention is easily answered: because there was evidence that Hanley engaged in
conduct that would support a punitive damages award, the instruction was not error.

Its second contention requires more analysis. The injury claimed by the Middlebrooks group is
addressed by Georgia law, which provides:

In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no
measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such
an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be
awarded.
Ga.Code Ann. § 51-12-6 (2000). Hillcrest argues that this statute precludes any award of punitive damages
when the sole injury is to the peace, happiness, or feelings of the plaintiff. Damages awarded under this

section, however, are in part punitive and in part compensatory. Ralston v. City of Dahlonega, 236 Ga.App.

386, 512 S.E.2d 300, 303 (1999). Thus, the purpose of the second sentence in section 51-12-6 is to prevent

double recovery. Id. at 303 n. 4. A plaintiff who has been awarded damages prescribed by the "enlightened

consciences" of the jurors is not entitled to an additional award of punitive damages.
Here, the court instructed the jurors on compensatory and punitive damages in connection with the

race discrimination claim, but instructed them only on punitive damages in connection with the intentional
infliction claim. The intentional infliction punitive damages instruction given by the court was submitted by

Hillcrest and based on Ga.Code Ann. § 51-12-5.1 (Supp.1996). The absence of a compensatory damages
instruction likely prompted the following question from the jury: "If we find for the plaintiffs solely on
intentional infliction of emotional distress, may we award compensatory as well as punitive damages?" The

court then instructed the jury, "Yes, you may award compensatory as well as punitive damages if you find
in favor of the plaintiffs on intentional infliction of emotional distress. I will instruct you further, however,

that you must find in favor of the plaintiff for compensatory damages before you can award punitive

damages."

Because the court did not instruct the jury under both section 51-12-6 and section 51-12-5.1 and
because the jury considered compensatory damages and punitive damages separately, there was no danger

of a double recovery. See Kesler v. Veal, 182 Ga.App. 444, 356 S.E.2d 254, 262 (1987), rev'd on other

grounds, 257 Ga. 677, 362 S.E.2d 214 (1987). Although it would have been more appropriate to charge the
jury in accord with section 51-12-6, we cannot say that the jury instructions caused a miscarriage of justice.

IV.

Finally, Hillcrest argues that it is entitled to a new trial or a remittitur because the damages awarded

were excessive. We review the district court's ruling on this issue for a clear abuse of discretion.5 Agro Air

Assocs., Inc. v. Houston Cas. Co., 128 F.3d 1452, 1455 n. 5 (11th Cir.1997). Under Georgia law, a court

should not interfere with the amount of damages awarded unless they "are clearly so inadequate or so

excessive as to be inconsistent with the preponderance of the evidence in the case." Ga.Code Ann. § 51-12-

12(a) (2000). "[A]n excessive or inadequate verdict is a mistake of fact rather than of law and addresses itself

to the discretion of the trial judge who, like the jury, saw the witnesses and heard the testimony." Moody v.

Dykes, 269 Ga. 217, 496 S.E.2d 907, 912 (1998).

During his closing argument, counsel for the Middlebrooks group suggested the jury award $25,000

in compensatory damages to each plaintiff and a total of $250,000 in punitive damages. The jury awarded
$5,000 in compensatory damages to each plaintiff and a total of $400,000 in punitive damages. In denying

Hillcrest's motion for remittitur, the district court stated:

I don't believe that the amounts awarded for compensatory and punitive damages exceed the
maximum reasonable range of jury verdicts, given the facts and circumstances of the case. Although
the amount of the verdicts added together are high, I don't believe that the individual awards
themselves are so high as to be unreasonable and excessive, although they may well be higher than
what I would have awarded if I had been the finder of fact in the case.

We see no clear abuse of discretion in this ruling.
Hanley called Middlebrooks and the band members "motherfuckers" and "niggers," had the police
remove them from Waffle House, and locked the door behind them. After the group returned to their buses,

the restaurant reopened for other customers. Although five of the plaintiffs did not hear the offensive

language, they learned of it soon afterward, either while they were still in Waffle House or when they were
in the parking lot. The plaintiffs characterized their feelings after the incident as humiliation, embarrassment,

disbelief, shock, shame, and disgust. The jury's award of $5,000 in compensatory damages to each plaintiff
is not inconsistent with this evidence.

Under the Georgia statute that provided the basis for the punitive damages instruction submitted by

Hillcrest, punitive damages are awarded to penalize, punish, or deter. Ga.Code Ann. § 51-12-5.1(c)

5
Hillcrest does not argue that the punitive damages award violates its due process rights. Cf. Cooper
Indus., Inc. v. Leatherman Tool Group, Inc., --- U.S. ----, 121 S.Ct. 1678, --- L.Ed.2d ---- (2001) (court of
appeals reviews district court's determination whether punitive damages award is constitutional de novo).
(Supp.1996). The jury's total punitive damages award of $400,000 is consistent with these purposes. The

ratio between punitive and compensatory damages is some evidence of whether undue prejudice or bias

infected the jury's award of punitive damages. Time Warner Entertainment Co. v. Six Flags Over Georgia,

LLC, 245 Ga.App. 334, 537 S.E.2d 397, 416 (2000). The ten-to-one ratio in this case does not convince us

that the award is tainted by prejudice or bias.

Although we, too, may have awarded less damages than the jury, the district court did not clearly
abuse its discretion by denying Hillcrest's motion for remittitur.

***
For the foregoing reasons, we AFFIRM the judgment of the district court. Because the Middlebrooks

group's argument on cross-appeal relates to an issue that would arise only on re-trial, we need not address it.

COX, Circuit Judge, dissenting.
I would concur in the court's opinion if not for its conclusion that the evidence presented at trial was

sufficient to hold Hillcrest liable for the negligent hiring or retention of Hanley. The problem in this case is
that the plaintiffs made one claim too many—the negligent hiring or retention claim—and the trial court
erroneously submitted this claim to the jury.

As the majority correctly notes, Georgia law provides that an employer may be held liable for an

employee's tortious conduct on a negligent hiring or retention theory when the employer knew or should have

known of the employee's propensity to commit the conduct which injured the plaintiff. See Alpharetta First

United Methodist Church v. Stewart, 221 Ga.App. 748, 472 S.E.2d 532, 536 (1996). Unlike the majority,

however, I would conclude that the evidence presented at trial was insufficient as a matter of law to hold

Hillcrest liable for Hanley's behavior.
The plaintiffs presented no evidence that Hanley had ever improperly treated restaurant customers

of any race in the past. Nor was there evidence that Hanley had ever used racial slurs either in his private life

or at work. Instead, the plaintiffs presented evidence that: (1) Hanley had a tendency to neglect some of his

work duties; (2) Hanley had used a knife to defend himself in a violent altercation with a customer; and (3)
a Hillcrest manager would not be "surprised" if Hanley used profanity, including racial slurs, in his private

life. This evidence is insufficient to meet the plaintiffs' burden of demonstrating that Hillcrest knew or should

have known that Hanley was likely to intentionally inflict emotional distress on the restaurant's customers.
First, the fact that Hanley neglected some of his work duties is irrelevant because the plaintiffs'
injuries stemmed from an intentional tort, not Hanley's negligent performance of his job. See Edwards v.

Robinson-Humphrey Co., Inc., 164 Ga.App. 876, 298 S.E.2d 600, 603 (1982) (evidence available to employer

that employee had a propensity for lying irrelevant when injuries underlying plaintiff's claims were caused

by violent attacks and theft). Second, the fact that Hanley used a weapon to defend himself from an assault

in no way suggests that he had a propensity to inflict emotional distress on innocent customers. Finally, it
is difficult to imagine that probative value should be given to the testimony of the Hillcrest manager that he

would not be "surprised" if told that Hanley used profanity and racial slurs outside of work. Even if we

generously interpret the testimony as signaling that Hillcrest management knew that Hanley was wont to use

racial slurs in his off-hours, such information would, in my opinion, still not put a reasonable employer on

notice that Hanley was likely to abuse African-American customers in the restaurant. See Bunn-Penn v. S.

Reg'l Med. Corp., 227 Ga.App. 291, 488 S.E.2d 747, 750 (Ga.Ct.App.1997) (evidence that male hospital

employee acted inappropriately with female patients was insufficient to place hospital on notice that employee

was likely to commit sexual assault of patient). I therefore conclude that the evidence presented at trial was
insufficient to demonstrate that Hillcrest knew or should have known that Hanley was predisposed to
intentionally inflict emotional distress on restaurant patrons.

Because the plaintiffs failed to present sufficient evidence to support the negligent hiring or retention

claim, I would hold that the district court erred in denying Hillcrest's motion for judgment as a matter of law
on that claim. The proper remedy would be to grant Hillcrest a new trial since the plaintiffs argued that
Hillcrest was liable under both respondeat superior and negligent hiring theories and the jury's general verdict

did not indicate under which theory it found Hillcrest responsible. See Network Publ'ns, Inc. v. Ellis

Graphics Corp., 959 F.2d 212 (11th Cir.1992).