Pursuit of Summary Judgment in Vicarious Liability Claims Premised Upon Intentional Act of an Employee Criminal In Nature

Here’s the scenario: An employee commits an intentional act that is criminal in nature while on the clock.  A third party is injured by this act.  The employer is sued based on a theory of vicarious liability.  The act was not in the course and scope of employment, nor was it done in furtherance of the employer’s interests.  To the contrary, the act was done in complete contravention of the employee’s training provided to him/her by the employer and for the employee’s independent purpose. 

The question now presented: Can an intentional act of the employee that is criminal in nature operate as a basis for summary judgment of a vicarious liability claim in South Carolina?

The short answer is “Yes,” provided the employer satisfies the common law analysis governing such disputes.

Under the doctrine of respondeat superior (or vicarious liability), it has generally been held in South Carolina that the employer is liable for the wrongful acts of his employee while the employee is acting as such within the scope of his or her employment.  E.g., Adams v. S.C. Power Co., 200 S.C. 438, 21 S.E.2d 17, 19 (1942).  The principle is adhered to that an act within the scope of the employee’s employment where reasonably necessary to accomplish the purpose of his or her employment and is in furtherance of the employer’s business.  Id. (citations omitted)

Conversely, under this same doctrine, as it has been traditionally applied in South Carolina, an employer is generally not liable for an employee’s intentional tort. Rabon v. Guardsmark, Inc., 571 F.2d 1277, 1279 (4th Cir. 1978) (citing Lane v. Modern Music, Inc., 244 S.C. 299, 136 S.E.2d 713 (1964); Adams v. South Carolina Power Co., 200 S.C. 438, 21 S.E.2d 17 (1942); Courtney v. American Ry. Express Co., 120 S.C. 511, 113 S.E. 332 (1922)).

Central to applying this rule to any given dispute where the employer has been sued on a theory of vicarious liability are these considerations:

• Whether the tort was in furtherance of the employer’s business?
• Whether the tort was for the employee’s independent purpose?
• Whether the alleged conduct was in the scope of employment?

Id.

The mere fact the tort was committed at a time the employee should have been about the employer’s business and that it occurred at the place where the employee was directed to perform the employer’s business does not alter these conclusions. Id. (citing Davenport v. Charleston Western Carolina Ry. Co., 72 S.C. 205, 51 S.E. 677 (1905)).

To that end, if the employer can demonstrate to the trial court that the alleged intentional act, which is criminal in nature, was not in furtherance of the employer’s business, was in fact for the employee’s independent purpose, and was not in the scope of the employee’s scope of employment, summary judgment should arguably be granted.  At the very least, a motion for such relief should be seriously considered for purposes of leverage in the litigation.

A case illustrating the viability of disposition by a circuit judge as a matter of law in such circumstances includes Armstrong v. Food Lion, 371 S.C. 271, 639 S.E.2d 50 (2006).  Though not a summary judgment case, Armstrong is nevertheless instructive as it pertains to outlining the law in South Carolina concerning intentional acts that are criminal in nature and vicarious liability claims. 

In Armstrong, a mother and son filed suit against a grocery store retailer, alleging causes of action for assault, battery, outrage, premises liability, negligence, and negligence per se.  Regarding the facts: The son, who was a teenager, had gone to the Winnsboro, South Carolina Food Lion store to purchase groceries with his sister and his mother.  As the son walked up an aisle of the store, three men in Food Lion uniforms approached him.  One of the three employees, also a teenager, approached and said “What’s up?,” and the son replied, “Nothing.” The son testified the employee then attacked him with a box cutter.  The employee cut the son in the face and neck and a second employee also began attacking him after he fell on the floor. The second employee cut the son with another box cutter on his back.  When the mother came to her son’s aid, the second employee punched her in the chest and knocked her to the floor. The son testified at trial that, “I don’t know why they cut me. They just attacked me for no reason. I said nothing to provoke anyone.” On cross-examination, the son stated he had a confrontation with the first employee two years prior to the incident and that the employee had threatened to kill him.

The trial court granted Food Lion’s motion for a directed verdict as to most of the mother and son’s claims, including the intentional torts. The jury returned a verdict in favor of Food Lion as to the negligence claim. The Court of Appeals affirmed.

On appeal, the Supreme Court also affirmed the directed verdict of the intentional torts, holding:

The trial court appropriately granted a directed verdict because [mother and son] failed to produce any evidence that the Food Lion employees were acting within the scope of their employment or in furtherance of Food Lion’s business when they attacked petitioners. The only reasonable inference from the testimony is that [the employees] attacked [the son] for their own personal reasons and not for any reason related to their employment. They were acting “to effect an independent purpose of their own.” Food Lion was not legally liable because the employees stepped away from their job of stocking shelves.

Id. at 276–77, 639 S.E.2d at 53 (citations omitted).

The Court disregarded any argument the employees’ use of employer-issued boxcutters in the assault created professional liability for the retailer because the boxcutters were for opening boxes of merchandise and not for assaulting customers. Id. at 276–78, 639 S.E.2d at 53.

Of course, because of the scintilla of the evidence standard applied by our trial courts, it needs to be said that where a plaintiff can present genuine issues of material fact that create a jury issue of whether, inter alia, alleged intentional and criminal conduct was in the scope of employment, summary judgment will typically be precluded.  See Froneberger v. Smith, 406 S.C. 37, 748 S.E.2d 625 (Ct. App. 2013) (holding genuine issues of material fact existed regarding whether the actions of mortgage loan officer in helping investors obtain a mortgage loan to use in investment scheme created by officer’s investment advisor husband were within the scope of her employment with mortgage broker, precluding summary judgment in investors’ action against mortgage broker under a theory of respondeat superior).

Stated succinctly, where an employer has been sued (or threatened with suit) for the alleged intentional acts of an employee that are criminal in nature, that employer and its counsel need to thoroughly investigate the facts as soon as possible and where the facts warrant the same, develop a defense demonstrating to the trial court that the alleged act was not in furtherance of the employer’s business, was in fact for the employee’s independent purpose, and was not in the scope of the employee’s scope of employment.  Where such a demonstration can be made, summary judgment is arguably a realistic outcome for the employer. 

Note: It goes without saying that where such a defense/argument exists for an employer, a conflict would also exist under the rules governing practice, which necessitates separate counsel for the employer and employee in defense of a lawsuit where both are named (or prospective) defendants.