Employer May Be Liable for Worker’s Attack on Customer

Friday, March 28, 2008

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Employer May Be Liable for Worker’s Attack on Customer—C.A.

By SHERRI M. OKAMOTO, Staff Writer

An employer may be held liable for damages caused by its employee’s physical assault of a customer because an employee’s angry outburst was a predicable risk of retail employment, the Fourth District Court of Appeal has ruled.

In an opinion certified yesterday for publication, Div. Three said a triable issue existed as whether an altercation stemming from a customer’s arguably insulting verbal exchange with an employee was attributable to work-related events, and thus within the scope of employment as a matter of law.

The panel reversed Orange Superior Court Judge Gail A. Andler’s grant of summary judgment to the defendant, the owner of the Autozone chain of auto supply stores.

On Feb. 15, 2004, 56-year old Juan Rodriguez Flores went to an Autozone store to purchase motor oil. Flores presented evidence that he asked Erwin Gomez, an Autozone employee, for the price of a case of motor oil.

The two men exchanged words, and then Gomez struck Flores over the head with a steel exhaust pipe.

Vicarious Liability Argued

Flores filed suit, claiming that Autozone was vicariously liable for Gomez’s actions because Gomez was acting in the course and scope of his employment, and that Autozone had been negligent in its hiring, training or retention of Gomez as an employee. He also sought punitive damages.

Autozone acknowledged that Gomez’s job duties as a “parts sales manager” included answering customers’ questions and assisting customer with finding products. But Autozone argued Gomez’s “attack [of] … an older and smaller gentleman [with a steel pipe] can only be described as perverse and beyond any human decency,” and therefore Gomez’s conduct was outside the scope of his employment as a matter of law.

Andler granted Autozone’s motion and held, “[AutoZone] established that Gomez’ conduct was unforeseeable to place Gomez within the course and scope of employment with Autozone at the time of his intentional, independent acts. [AutoZone] further established that it did not breach any independent duty of care it owed to [Flores] as alleged in the operative complaint.” Flores appealed.

An employee’s willful, malicious and criminal acts may fall within the scope of his employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.

But, Justice William W. Bedsworth explained, the employer will not be liable for any crime or tort that did not have a “causal nexus” to the employee’s work.

“‘That the employment brought tortfeasor and victim together in time and place is not enough,’” Bedsworth wrote, citing Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, holding the incident has to be a “‘outgrowth’” of employment, an inherent risk of the working environment, or incidental to the employer’s enterprise.

Risk of Violence

Although Carr addressed the risk of violence between coworkers as opposed to violence between employees and customers, “we cannot draw a meaningful distinction between the two scenarios,” Bedsworth reasoned. “The workplace stresses and strains which might cause an employee to erupt in anger are not dependent upon whether the person who happens to be standing in the line of fire is a coworker or a retail customer.”

The appropriate test the court then concluded, is “whether an employee’s physical eruption, stemming from his interaction with a customer, is a predictable risk of retail employment.”

Autozone contended that Gomez had already performed his job duties by directing Flores to the location where the price for motor oil was displayed, and that Gomez’s continued interactions with Flores “had nothing to do with the price of oil, or retrieving a case off the shelf for [Flores.]”

However, the court held, “the anger generated during the interaction between Flores and Gomez cannot be so tidily compartmentalized – at least not as a matter of law.” The court found that a jury could reasonably infer that Gomez’s anger had been aroused at an earlier point in time, so even though the facts were undisputed between the parties, there was still a triable question of law.

“To be clear, we are not now concluding Autozone is necessarily liable, on a theory of respondeat superior, for Gomez’s violent assault in this case,” Bedsworth wrote. “Given the posture of this appeal, the only issue before us is whether the trial court could properly determine, as a matter of law, that it was not liable on that theory. We conclude only that the court could not properly make that determination, and that the claim must consequently be remanded to the trial court for further proceedings.”

The panel did, however, uphold Andler’s ruling that there was insufficient evidence to support Flores’ contention that his injuries were caused by Autozone’s negligent hiring, retention and training of its employee.

An employer cannot access an employee’s confidential juvenile records, and has no independent duty to run a background check or personality screening test solely because an employee will have contact with the public, Bedsworth explained. Nor, he said, did Autozone act unreasonably in retaining Gomez as an employee following his verbal altercation with another customer three years prior.

The court concluded that Autozone had no obligation to provide “training concerning the inappropriateness of punching out customers.” Finally because Autozone had promptly fired Gomez after he assaulted Flores, the court concluded that the trial court had properly dismissed Flores’ claim for punitive damages.

Eduardo M. Madrid, who represented Flores said he was pleased with the Court of Appeal’s decision.

He said:

“The defendant took the position that respondeat superior did not exist, that it was a foregone conclusion that there is no vicarious liability,” but where an employee “hauls back and creams a guy and then draws back and creams him again….the Court of Appeal has said [the theory of respondeat superior] is alive and well.”

Attorneys for Autozone could not be reached for comment.

Justice William F. Rylaarsdam and Justice Kathleen O’Leary joined Bedsworth in his opinion, which was issued on Feb. 28.

The case is Flores v. Autozone West, Inc., 08 S.O.S. 1835.