Present: All the Justices
GIANT OF MARYLAND, INC.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 981171 April 16, 1999
CHARLOTTE ENGER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
In this appeal of a judgment in a tort action, we
consider whether the circuit court erred in instructing the
jury on the doctrine of respondeat superior.
The plaintiff, Charlotte H. Enger, filed her amended
motion for judgment against Geo Asfaw, Giant Food Stores,
Inc., and Giant of Maryland, Inc. She alleged, among other
things, that she incurred personal injuries when she was
attacked by Asfaw, an employee of Giant of Maryland, Inc. The
plaintiff nonsuited her claims against Asfaw and Giant Foods,
Inc., and at the conclusion of a trial, the jury returned a
verdict in favor of the plaintiff in the amount of $137,000.
The circuit court entered a judgment confirming the verdict,
and Giant of Maryland appeals.
Applying established principles of appellate review, we
shall summarize the evidence in the light most favorable to
the plaintiff, who comes to this Court armed with a jury
verdict confirmed by the circuit court.
The plaintiff went to the defendant's store to purchase
some groceries. She proceeded to the store's produce section
to select some bananas. While the plaintiff was in the store,
Kenneth M. Brown, the store's manager, saw a piece of celery
that had fallen on the floor in the produce area, and he
directed Asfaw, a produce clerk, to pick up the celery. Asfaw
refused to do so, walked toward Brown, stood within an inch of
Brown's face, and stated: "You don't know who I am. I'm the
devil. I'm going to burn you." Brown stepped back, and he
"motioned" to Julio Rivera, a store employee, "to come over
. . . [t]o witness what [Asfaw] had said . . . ."
Rivera approached Asfaw from behind, touched him on the
shoulder, and said, "[h]ey, man." Asfaw pushed Rivera and
assaulted him with karate kicks and punches. As Asfaw was
attacking Rivera, Asfaw's foot almost hit the plaintiff in her
face. She testified: "I walked to the bananas and picked up
two bananas and started to turn and put them in the
basket. . . . [W]hen all of a sudden a man's foot and leg
. . . that's all I saw was this foot and leg come kicking
right in front of my face with great force. It was such a
shock . . . I could even feel it as it just missed me."
After Asfaw finished attacking Rivera, Asfaw decided to
leave the store, and he began to walk toward the door. While
leaving, he began to remove a name tag that was affixed to a
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red jacket that store employees were required to wear. The
plaintiff testified: "And I thought, well, he's going to try
to leave. And I said [to Asfaw], where are you going? What
is your name? Why are you taking — and he just looked at me.
And I said, why are you taking off your name tag? And then he
slugged me, just power. Just reached around and I went flying
across the floor." Asfaw attacked the plaintiff by delivering
a "karate type of blow" to her chest. As a result of the
impact from the blow, the plaintiff sustained injuries to her
foot and ankle.
At trial, the trial court granted the following jury
instruction over the defendant's objection:
"An act is within the scope of employment if it
is incidental to the employer's business and is done
to further the employer's interest. If an employee
departs so far from his duties that his acts are no
longer for his employer's benefit, then his acts are
not within the scope of his employment. However, if
the tortious act of the employee arose out of an
activity which was within the employee's scope of
employment or within the ordinary course of
business, then that act may be considered to be
within the scope of employment."
The defendant argues that the last sentence of this
instruction is an incorrect statement of law because it
attempts to make the employer liable for any tort committed
while "at work," even though the employee's acts may have been
committed outside the scope of employment. Responding, the
plaintiff argues that the challenged jury instruction is a
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correct statement of law and that the trial court did not err
by granting it. We disagree with the plaintiff.
Initially, we observe that pursuant to the doctrine of
respondeat superior, an employer is liable for the tortious
acts of its employee if that employee was performing the
employer's business and acting within the scope of the
employment when the tortious acts were committed. Plummer v.
Center Psychiatrists, Ltd., 252 Va. 233, 235, 476 S.E.2d 172,
173 (1996); Kensington Assocs. v. West, 234 Va. 430, 432, 362
S.E.2d 900, 901 (1987); McNeill v. Spindler, 191 Va. 685, 694-
95, 62 S.E.2d 13, 17 (1950). Even though the doctrine of
respondeat superior is firmly established in Virginia,
difficulties often arise in the application of the doctrine to
particular facts. Generally, the inferences to be drawn from
the established facts are within the province of a jury.
Commercial Bus. Sys. v. BellSouth Servs., Inc., 249 Va. 39,
44, 453 S.E.2d 261, 265 (1995); Tri-State Coach Corp. v.
Walsh, 188 Va. 299, 308, 49 S.E.2d 363, 366 (1948).
In Davis v. Merrill, 133 Va. 69, 77-78, 112 S.E. 628, 631
(1922), we established the following test to determine whether
an employee acted within the scope of his employment:
"[T]he test of the liability of the master for the
tortious act of the servant, is not whether the
tortious act itself is a transaction within the
ordinary course of the business of the master, or
within the scope of the servant's authority, but
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whether the service itself, in which the tortious
act was done, was within the ordinary course of such
business or within the scope of such authority."
We have consistently applied this test in our jurisprudence.
See Commercial Bus. Sys., 249 Va. at 44, 453 S.E.2d at 265;
United Brotherhood v. Humphreys, 203 Va. 781, 786, 127 S.E.2d
98, 102 (1962), cert. denied, 371 U.S. 954 (1963). Accord
Tri-State Coach Corp., 188 Va. at 305-06, 49 S.E.2d at 366.
A comparison of our established test with the challenged
jury instruction compels us to conclude that the jury
instruction is erroneous. Under our aforementioned test, an
employer is responsible for an employee's tortious act if that
act was within the scope of the duties of the employment and
in the execution of the service for which the employee was
engaged. Accord Tri-State Coach Corp., 188 Va. at 306, 49
S.E.2d at 367. The challenged jury instruction differs from
the test that we have consistently applied because the
instruction allows the jury to find the employer liable for
any tort committed during the employee's employment, even if
the service that the employee was performing when he committed
the tortious acts was not within the ordinary course of the
employer's business or not within the scope of the employee's
authority.
We reject the plaintiff's contention that the defendant's
objection to the instruction is merely a matter of "an
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elevation of style over substance." Rather, the jury
instruction requires that the jury impose a different test
than the test this Court has consistently approved.
Accordingly, we will reverse the judgment of the circuit
court, and we will remand the case for a new trial. In view
of our disposition of this case, we need not consider the
litigants' remaining arguments.
Reversed and remanded.
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