Lynne M. Meyer v. Wal-Mart Stores, Inc.

On December 17, 1998, Lynne M. Meyer entered a discount store operated
by Wal-Mart Stores, Inc., located on East South Boulevard in Montgomery,
at approximately 7:30 a.m. The evidence tends to show that Meyer was in a
hurry to get to a business meeting and that she stopped by the Wal-Mart
store to purchase panty hose. After getting the panty hose, she proceeded
to the check-out registers to pay for the items. She noticed lines at
each open register, and she requested that the store open another
register. The store complied, sending Valerie Watts to open a new
register. Watts brought her cash drawer to the unopened register, as
Meyer waited in line. Meyer told Watts that she was in a hurry, and she
asked her to please work faster. Evidence was presented indicating that
instead of working faster, Watts slowed her pace.

After opening the register, Watts began to ring up Meyer's items. Meyer
complained that the computer had indicated the wrong price of an item,
and Watts called another Wal-Mart employee to get a "price check" on the
items. This apparently took some time. Meyer became agitated as she
waited for the price check. There was testimony that she walked up to
Watts and hit her in the chest with an open fist, although Meyer disputes
that she ever struck Watts.[fn1] What occurred next, however, is
undisputed. Watts grabbed Meyer by her hair and proceeded to hit her
repeatedly in the back of her head and Meyer screamed for help. Wal-Mart
management personnel separated the two women and questioned them about
the incident. Following the questioning, Watts was immediately fired for
violating company policy forbidding fighting in the store or on store
property. Meyer subsequently filed this action against Wal-Mart, but did
not name Watts as a defendant.

I.

Meyer first argues that she was entitled to a judgment as a matter of
law. She maintains, in her brief to this Court, that "because the
evidence was undisputed at trial that she was beaten by one of Wal-Mart's
employees inside its store while the employee was working on the job that
she was entitled to a judgment as a matter of law on liability."
(Appellant's brief at p. 17.) Meyer cites Plaisance v. Yelder,
408 So.2d 136 (Ala.Civ.App. 1981), to support her argument. In that
case, Plaisance sued Yelder, a ready-mix concrete driver, alleging
assault and battery for injuries Plaisance had allegedly suffered in a
fight that followed a collision between Plaisance's automobile and the
truck Yelder was driving. In Plaisance, the trial court directed a
verdict for Yelder's employer, Montgomery Ready Mix, and Plaisance
appealed. The Court of Civil Appeals held:

"In order to recover against a defendant under the
doctrine of respondeat superior, the plaintiff must
establish the status of master and servant and that
the act done was within the line and scope of the
servant's employment. Naber v. McCrory & Sumwalt
Construction Company, 393 So.2d 973 (Ala. 1981). This
rule applies even where the wrong complained of was
intentionally, willfully, or maliciously done in such
a manner as to authorize a recovery for punitive
damages. Anderson v. Tadlock, 27 Ala. App. 513,
175 So. 412 (1937). In extending the liability to a
willful wrong, the motive behind the act does not
defeat liability, Seaboard Air Line Railway Company
v. Glenn, 213 Ala. 284, 104 So. 548
Page 835
(1925), unless it can be shown that the servant acted from wholly
personal motives having no relation to the business of
the master. United States Steel Company v. Butler,
260 Ala. 190, 69 So.2d 685 (1953). Whether the servant
was actuated solely by personal motives or by the
interests of his employer is a question for the jury.
B.F. Goodrich Tire Company v. Lyster, 328 F.2d 411
(5th Cir. 1964); Craft v. Koonce, 237 Ala. 552,
187 So. 730 (1939). This is so if there is any
evidence having a tendency either directly or by
reasonable inference to show that the wrong was
committed while the servant was executing the duties
assigned to him. United States Steel Company v.
Butler, supra; Lerner Shops of Alabama v. Riddle,
231 Ala. 270, 164 So. 385 (1935)."

408 So.2d at 137. Meyer also cites the following cases in support of her
argument: USA Petroleum Corp. v. Hines, 770 So.2d 589 (Ala. 2000); Naber
v. McCrory & Sumwalt Constr. Co., 393 So.2d 973 (Ala. 1981) (trial court
entered summary judgment in favor of the employer; Alabama Supreme Court
held that a jury question was presented as to whether defendant's
employee, whose assigned task was to move fixtures under the plaintiff's
supervision, was acting in the line of his assigned duties when he struck
the plaintiff during a dispute over the manner of moving the fixtures);
Whitely v. Food Giant, Inc., 693 So.2d 502 (Ala.Civ.App. 1997) (owner of
a grocery store could be held liable for an assault and battery committed
by its employee); Coastal Bail Bonds, Inc. v. Cope, 697 So.2d 48
(Ala.Civ.App. 1996) (plaintiff presented sufficient evidence that bail
bond company's employees, while acting within the line and scope of their
employment, had assaulted the plaintiff); and Austin v. Ryan's Family
Steakhouses, 668 So.2d 806 (Ala.Civ.App. 1995) (assault of an employee
arose out of and in the course of employment for purposes of the worker's
compensation law; thus, the employee was barred under the exclusivity
provisions of the Workers' Compensation Act from bringing a tort action
against the employer). We are not convinced that those cases support
Meyer's argument that she was entitled to a judgment as a matter of law.
At most, it appears that those cases stand for the proposition that
whether an employer can be held liable for the tortious acts of an
employee presents a jury question. In USA Petroleum Corp., supra, for
example, a customer at a gasoline station sued the station operator and
its employee, alleging that the employee had committed an assault and
battery on him. The case was tried before a jury. On appeal, this Court,
quoting Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 305 (Ala.
1986), stated:

"`If there is any evidence in the record tending to
show directly, or by reasonable inference, that the
tortious conduct of the employee was committed while
performing duties assigned to him, then it becomes a
question for the jury to determine whether he was
acting from personal motives having no relationship to
the business of the employer.'"

770 So.2d at 591. In the present case, the trial judge allowed the case
to go to a jury. It specifically instructed the jury that when an
employee is engaged to perform certain services, what the employee does
to that end is deemed to be an act within the line and scope of the
employee's employment. It further instructed the jury that a principal
was not liable to others for the wrongful acts of its agent where, for
personal reasons of the agent, the agent had abandoned the principal's
business.

Based on the foregoing, and applying the standard of review set out in
Burns v. Marshall, 767 So.2d 347 (Ala. 2000), for a
Page 836
motion for a judgment as a matter of law, we conclude that Meyer was not
entitled to a judgment as a matter of law. She was, however, entitled to
have a jury determine whether Watts, as Wal-Mart's agent, was acting
within the line and scope of her employment at the time of the assault
and battery. Meyer presented her evidence to a jury, and the jury
returned a verdict in favor of Wal-Mart.

II.

Meyer's second issue relates to jury instructions. Specifically, Meyer
argues that the trial court erred in instructing the jury that an
employer is not legally responsible for the criminal acts of a third
party, given the fact that the criminal act in this case was committed by
the employee and that the trial court erred in refusing to give Meyer's
requested jury instructions.

For a better understanding of this issue, we set out the trial court's
entire instruction relating to an employer's liability for the criminal
acts of a third party, as well as the objection by plaintiff's counsel
and a summary of the trial court's response to the objection. The trial
court orally instructed the jury, as follows:

"Now, with regard to this particular case, an assault
can be both a civil wrong and a criminal wrong. And
this is a civil lawsuit that alleges that a tort, an
assault and battery, was committed by the defendant
against the plaintiff. And a tort is a civil wrong
committed by one person or entity against another. And
there are really three basic elements of every claim
for a tort.

". . . .

"Now, many of the facts are in dispute, but some of
them are really not. For example, it's undisputed that
[Meyer] was a customer of Wal-Mart, or that an
altercation occurred. But some of the matters, which
are in dispute and which will be for you to decide, is
whether or not the employee was acting within the line
and scope of her employment at the time of the
altercation, and whether or not her employee -
employer, Wal-Mart, should be held liable for those
acts.

"Now, as I said, [Meyer], as you know, was a customer
of Wal-Mart, and would be considered an invitee. And a
store owner, such as Wal-Mart, owes a duty to an
invitee to be reasonably sure that it is not inviting
another into danger and to exercise ordinary care to
render and keep the premises reasonably safe.

"Now, an assault and battery is defined as any
touching by one person of the person or clothes of
another in rudeness or in anger or in a hostile manner
and that is what constitutes an assault and battery.
An intent to injure is not an essential element.
Again, the plaintiff has the burden of reasonably
satisfying you by the evidence that an assault and
battery was committed by her.

"Now, [Meyer] alleges that the cashier, who was an
employee of Wal-Mart, committed the assault and
battery upon her while acting within the line and
scope of her employment. When an employee is engaged
to perform certain services, whatever she - he
or she does to that end or in furtherance of the
employment is deemed to be an act done within the
scope of the employment.

"Now, an employee [sic] or principal cannot be held
liable for the criminal acts of a third person unless
it knew or had reason to know that a criminal act was
about to occur on its premises. But an employer or
principal can be held liable for accidents, agent, or
employee [sic] who is acting within the line and scope
of his or her employment. When
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an agent or - again, is employed to - is engaged to
perform certain services, what he does to that end or
she does is deemed to be an act within the line and
scope of employment. But a principal is not liable to
others for the wrongful acts of its agent where there
is an abandonment of the principal's business for
personal reasons of the agent. The agency in that case
is suspended during the time of the abandonment of the
principal's business. And a principal cannot be held
responsible for the act of its agents, which have been
committed beyond the scope of the agent's authority.
But a principal is responsible for the acts of its
agents done within the scope of their employment and
within the line of duties even though such acts are
contrary to the principal's expressed instruction.

"Furthermore, the motive behind the act of the
employee does not defeat liability of the principal,
even if the wrong is willful, unless it can be shown
that the servant acted from solely personal motives
having no relation to the business of the employer.
And whether or not the employee was actuated solely by
personal motives or by the interest of the employee is
also an issue for you to decide."

(R. 218-21.) (Emphasis added.) After the close of the trial court's
instruction to the jury, Meyer's counsel made the following specific
objection to the trial court's instruction:

"The Court: What says the Plaintiff? And I know you
have some - I think everybody is out. I don't
know whether you have any objections that aren't
already on the record.

"Mr. Gill: Your Honor, I do have several objections.
Number one, we objected to the trial court instructing
the jury that the employer is not responsible for the
criminal act [of a] third party. That is a jury charge
that only applies in an action against a person or
entity when there is a real third party involved in a
criminal act. This is not a third party attack case.
Rather, this is a line and scope of employment case
involving Wal-Mart's employee. I was completely
surprised by that jury charge -

". . . .

"Mr. Gill: You know, we maintain it's not a
third-party liability situation to sustain that jury
charge. The problem is that now, based on the charge,
it has injected the issue of notice on the part of the
plaintiff to show that they either knew - she
either knew that the employee was unfit or the
employer - excuse me - the employer knew
the employee was unfit or that the employer knew that
there was going to be an attack, and that's not the
law and that's not the plaintiff's burden of proof in
this case, and we would ask the jury - the Court
to instruct the jury - and I quote, `For the
employer to be liable for the intentional acts of its
employee committed in the line and scope of their
employment, it is not necessary that the plaintiff
prove that the employer knew that its employee was
unfit or that the employer had notice that its
employee was going to commit an intentional wrong.'"

(R. 228-31.) After a colloquy between Meyer's counsel and the court, the
court said that it thought that the instruction was proper and that it
had adequately instructed the jury on the applicable law.

The law governing our review in this case is as follows:

"When a trial court's oral charge is a correct
statement of the law, there is no reversible error.
Rule 51, [Ala.] R. Civ. P.; see McLemore v. Alabama
Power Co., 289 Ala. 643, 270 So.2d 657 (1972). We
further note that in our review of
Page 838
alleged error, where the objected portion of an oral
charge is misleading, abstract or incomplete, reversible
error will be determined only from a review of the entire
instruction. Alabama Power Co. v. Tatum, 293 Ala. 500,
306 So.2d 251 (1975)."

Griggs v. Finley, 565 So.2d 154, 160 (Ala. 1990).

Meyer is correct in arguing that this is not a case in which the
criminal act was committed against her by a third party; therefore, the
trial court erred in instructing the jury on third-party liability for a
criminal act. However, based on our review of the entire instruction
given by the court and upon similar cases involving third-party criminal
liability, we believe that the error was harmless.[fn2]

Alabama law clearly states the following:

"`For [an employer] to become liable for [the]
intentional torts of its agent, the plaintiff[] must
offer evidence that [1] the agent's wrongful acts were
in the line and scope of his employment; or [2] that
the acts were in furtherance of the business of [the
employer]; or [3] that [the employer] participated
in, authorized, or ratified the wrongful acts.' Joyner
v. AAA Cooper Transportation, 477 So.2d 364, 365
(Ala. 1985)."

Potts v. BE&K Constr. Co., 604 So.2d 398, 400 (Ala. 1992).

This Court recently addressed a claim against an employer for damages
resulting from torts allegedly committed by an employee. In Ex parte
South Baldwin Regional Medical Center, 785 So.2d 368 (Ala. 2000), D.P.
and S.P., individually and on behalf of E.P., their six-year-old
daughter, sued South Baldwin Regional Medical Center and Ron McFadden, a
registered nurse employed at the hospital, for damage allegedly suffered
when McFadden sexually molested E.P. The trial court entered a summary
judgment for the hospital on all of E.P.'s claims (alleging assault and
battery, negligent supervision, and breach of duty to a business invitee)
and entered a partial summary judgment for McFadden on the parents'
individual claims alleging negligent infliction of emotional distress.
The Court of Civil Appeals, in a plurality opinion, reversed the summary
judgment on E.P.'s claims and remanded the case for further proceedings.
See E.P. v. McFadden, 785 So.2d 364 (Ala.Civ.App. 2000). On certiorari
review, this Court stated:

"We granted the hospital's petition for certiorari
review to consider whether the holding of the Court of
Civil Appeals conflicts with this Court's recent
decision in Carroll v. Shoney's, Inc., 775 So.2d 753
(Ala. 2000). We conclude that it does; therefore, we
reverse the judgment of the Court of Civil Appeals
insofar as it relates to E.P.'s claims.

"The sole issue presented to this Court is whether the
Court of Civil Appeals erred in reversing the summary
judgment for the hospital on E.P.'s claims of assault
and battery, negligent supervision, and breach of duty
to a business invitee.

"Judge Thompson correctly noted in his special writing
that `this case presents extremely emotional issues,'
Page 839
785 So.2d at 368. However, as both Judge Thompson and
Judge Crawley recognized, the law in Alabama, as most
recently restated in Carroll v. Shoney's, supra, is
well established. Judge Crawley, in his special
writing, summarized the pertinent law and the relevant
facts, as follows:

"`I would affirm the summary judgment in all
respects; therefore, I must respectfully dissent from
that portion of the opinion reversing the summary
judgment for the hospital on E.P.'s claims of assault
and battery, negligent supervision, and breach of duty
to a business invitee. I agree that McFadden's personnel
file documents a history of problems at work; however,
almost all of these problems involved disagreements with
coworkers. McFadden's file also indicates that he is a
competent nurse dedicated to superior patient care. Days
before the molestation incident, McFadden did have a
disagreement with an elderly patient. Allegedly,
McFadden told her that she would get her medicine "when
he saw fit." When McFadden learned that the patient
reported the incident, he allegedly returned to her room
and threatened her. During the hospital's investigation
of that incident, McFadden allegedly molested the child
in this case.

"`The opinion concludes that McFadden's "history"
made his alleged sexual molestation of E.P.
foreseeable and, therefore, that the hospital can be
held liable for his actions. I disagree. According
to our supreme court, to impose liability on the
hospital E.P. would have to establish (1) that the
"particular criminal conduct [was] foreseeable;" (2)
that "the defendant . . . possessed `specialized
knowledge' of the criminal activity;" and (3) that
"the criminal conduct [was] a probability." Carroll
v. Shoney's, Inc., 775 So.2d 753 (Ala. 2000)
(emphasis added). In any case in which a defendant
faces liability for the criminal actions of a third
party, the focus is on whether the criminal activity
was foreseeable. Notably, the supreme court has held
that the particular criminal activity, not just any
criminal activity, must be foreseeable. Carroll, 775
So.2d at 756; see also Moye v. A.G. Gaston Motels,
Inc., 499 So.2d 1368, 1373 n. 1 (Ala. 1986) (stating
that evidence that one murder and one robbery of a
guest in a hotel room in the 18 months preceding the
homicide of Ms. Moye "would be insufficient as a
matter of law to give rise to a duty to protect Ms.
Moye"), and Henley v. Pizitz Realty Co., 456 So.2d 272,
273, 277 (Ala. 1984) (holding that prior criminal
acts on the premises, including "one battery upon
the owner of a car; six breakings and enterings of
cars; two robberies; . . . six thefts; and one theft
in which the thief was shot by a customer," were not
sufficient to make the rape of Henley foreseeable).

"`Nothing in McFadden's history indicated that he
would molest a child. Therefore, I conclude that the
molestation of E.P. was not foreseeable. I would
affirm the summary judgment for the hospital in its
entirety.'

"785 So.2d at 367-68.

"We agree with Judge Crawley and Judge Thompson that
the Court of Civil Appeals should have affirmed the
summary judgment for the hospital, on the authority of
Carroll v. Shoney's, supra, and the cases cited
therein. See Ala. Code 1975, § 12-3-16 (`The
decisions of the Supreme Court shall govern the
holdings and decisions of the courts of appeals, and
the decisions and proceedings
Page 840
of such courts of appeals shall be subject to the
general superintendence and control of the Supreme
Court as provided by Constitutional Amendment No.
328.'). The main opinion of the Court of Civil Appeals
does not cite Carroll v. Shoney's. In fact, it cites
no case dealing with the substantive law applicable
to the merits of E.P.'s claims against the hospital."

Ex parte South Baldwin Reg'l Med. Ctr., 785 So.2d 368, 369-71 (Ala. 2000)
(emphasis supplied). This Court said that the record in that case
"clearly indicate[d] that McFadden had a history of mental illness (manic
depression) and that he had functioned for years as a nurse because of
the hospital's willingness to allow him to work while he was receiving
treatment." 785 So.2d at 371. The Court also noted that the evidence
indicated that although McFadden generally did a good job, he had "a
history of emotional outbursts with fellow employees and with at least
one patient," but that "[n]o evidence indicates that McFadden had ever
engaged in sexual misconduct before the incident made the basis of this
action." 785 So.2d at 371.

The Court concluded its opinion by asking and answering a question:

"Did hospital administrators exercise sound judgment
in allowing McFadden to work at the hospital in direct
contact with patients? The answer to that question is
debatable. However, the evidence, even viewed in the
light most favorable to E.P., as our standard of
review requires us to view it, falls woefully short of
demonstrating that McFadden's supervisors should have
foreseen that he would probably sexually molest a
child in the hospital's care. See Ex parte McRae's of
Alabama, Inc., 703 So.2d 351, 352 (Ala. 1997), wherein
this Court, after citing numerous cases, stated: `The
plaintiffs' evidence falls far short of the high
standard a plaintiff must meet to hold a defendant
liable for the criminal acts of a third party.'

"We also note that this case does not fall within the
rule stated in Young v. Huntsville Hospital,
595 So.2d 1386 (Ala. 1992), wherein this Court held
that a special relationship had been created that
imposed a unique duty on the defendant hospital
because the hospital had anesthetized the plaintiff
and placed her in a situation that we later described
as making her `uniquely dependent upon the hospital
for protection.' Saccuzzo v. Krystal Co., 646 So.2d 595,
597 (Ala. 1994). The evidence in this present case
indicates that the incident giving rise to E.P.'s
claims occurred in one of the hospital's patient-care
rooms and in the presence of E.P.'s two brothers, her
mother and father, and a housekeeper. The record gives
no indication that at the time of this incident E.P.
was `uniquely dependent upon the hospital for
protection,' as was the helpless patient in Young. See
also Baptist Mem'l Hosp. v. Gosa, 686 So.2d 1147
(Ala. 1996)."

785 So.2d at 371. We have quoted extensively from Ex parte South Baldwin
Regional Medical Center, to show how this Court has applied principles of
law relating to criminal acts committed by third parties in a case in
which a plaintiff attempts to hold an employer liable for a criminal act
committed by one of its employees, as is the case here.

Meyer also argues that the trial court erred in refusing to give
certain jury instructions she requested. Based on the same legal
reasoning set out above, we hold that the trial court did not err in
refusing to instruct the jury as requested by the plaintiff. As we have
pointed out, the trial court's oral instruction was sufficient
Page 841
to cover the issues presented to the jury by the pleadings.

* * *

Click the case caption above for the full text of the Court's opinion.

Defendant's verdict.

Unknown

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