James Swanger v. Carrie Lowery ( 2017 )

03/08/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 16, 2016 Session
HENRY FLETCHER v. CFRA, LLC
Appeal from the Circuit Court for Davidson County
No. 14C1630 Hamilton V. Gayden, Jr., Judge
No. M2016-01202-COA-R3-CV
Henry Fletcher (“Plaintiff”) sued CFRA, LLC (“CFRA”), which owns and operates an
International House of Pancakes (“IHOP”) restaurant in Antioch, Tennessee, alleging that
CFRA was liable for the actions of its IHOP employee, Kenneth W. Hale, Jr. (“Hale”), in
connection with an assault upon Plaintiff committed by Hale. The Circuit Court for
Davidson County (“the Trial Court”) granted summary judgment to CFRA. Plaintiff
appeals the grant of summary judgment. We find and hold that CFRA made a properly
supported motion for summary judgment, that Plaintiff failed to show that there are
genuine disputed issues of material fact that would preclude summary judgment, and that
CFRA was entitled to summary judgment as a matter of law. We, therefore, affirm the
grant of summary judgment to CFRA.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
David J. Weissman and Benjamin K. Raybin, Nashville, Tennessee, for the appellant,
Henry Fletcher.
Mark S. LeVan and Christopher M. Jones, Nashville, Tennessee, and Charles T. Hvass,
Minneapolis, Minnesota, for the appellee, CFRA, LLC.
OPINION
Background
Hale had been hired as a dishwasher working third-shift at the IHOP. When Hale
was hired by IHOP and at the time of the assault upon Plaintiff, Hale was on parole for
aggravated battery and felony firearm convictions.
The assault giving rise to this suit (“the Assault”) occurred on May 12, 2013. At
approximately 6:30 a.m. on that day, Plaintiff and a friend, DeAries Holland (“Holland”),
were customers at IHOP. When Plaintiff and Holland left IHOP, there was a dispute
about whether their bill had been paid. Hale and a waitress approached Plaintiff and
Holland in the IHOP parking lot, and the issue regarding the bill was resolved. Plaintiff
and Holland then left the IHOP parking lot. Hale, who had clocked out after finishing his
shift, was picked up by his girlfriend, and they also left the IHOP parking lot. Hale and
his girlfriend and Plaintiff and Holland drove to a nearby apartment complex where the
Assault occurred.
Plaintiff sued CFRA alleging that it was vicariously liable for Hale’s actions and
that it also was directly liable for negligent premises security and for negligently hiring
and supervising Hale. CFRA filed a motion for summary judgment supported by, among
other things, the deposition testimony of Hale, Hale’s girlfriend, Plaintiff, and two IHOP
employees.
Hale’s girlfriend, Sandi F. Cox, testified that she and Hale were living together in
the Saxony Apartments at the time of the Assault. Cox testified that Hale had started
working at the IHOP approximately a month prior to the Assault. Hale had interviewed
for a job as a waiter, but he was not hired as a waiter due to his criminal background.
Instead, Hale was hired as a dishwasher working third-shift.
Cox testified that Hale called her on the day of the Assault to tell her that he was
finished working, and she could pick him up. Cox stated that after that initial telephone
conversation, she called Hale back and asked him to get her some orange juice because
she was feeling unwell. During that second telephone call, Hale told Cox about a verbal
confrontation he had with Plaintiff and Holland in the IHOP parking lot. She stated that
Hale told her that “two guys tried to skip out on their bill,” that he had gone out to the
parking lot with a waitress to get them to pay, and that “they threatened to shoot him.”
Cox further stated:
Well, he told me that he was very calm about it, he didn’t get upset with the
threat. And I told him I was proud of that, I was proud of him for that.
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Because when someone makes threats to you, that can normally trigger
anger, and so I was proud of him keeping his cool. But that was basically
it.
Cox testified that when she pulled into the IHOP parking lot, Hale was inside the
IHOP. Cox was driving a red Chevy Aveo, and she had her four-year old son in the car
with her. Cox noticed a yellow Dodge Charger in the IHOP parking lot. When Hale got
into Cox’s car, Cox mentioned the yellow Dodge Charger because she “really like[d]
those cars.” Hale told Cox that the people in the yellow Dodge Charger were the ones
who had threatened him.
The yellow Dodge Charger pulled out of the IHOP parking lot before Cox pulled
her car out of the lot. Cox was driving, and Hale was in the passenger seat. Cox stated
that she noticed as she was driving that the yellow Dodge Charger was behind her car.
She stated:
We both - - well, we both began to panic because we know they left before
us. And he had previously threatened - - well, the people in the car had
previously threatened [Hale]. And they threatened to shoot him, and so we
were both panicking because we didn’t know if the threat was credible or
not. And so he didn’t want us to drive home because he didn’t want us to
go exactly where we live and they know where we live, so he told me to
turn going toward Chimney Top Apartments because he had a friend that
lived there.
Cox testified that her ex-husband also lived at the Chimney Top Apartments (“Chimney
Top”).
Chimney Top is a gated community, and Cox had to enter a code to get through
the gate. Cox explained that she knew the Chimney Top emergency code because she
previously had lived at Chimney Top. Cox input the code and pulled through the gate.
The yellow Dodge Charger pulled through the gate right behind her. Cox drove toward
the back of the apartment complex toward where Hale’s friend lived. The yellow Dodge
Charger followed. Cox pulled into a parking spot, and Hale got out of the car. Hale told
Cox to leave and take her son home. Cox did so and did not stay to see what happened.
Cox stated that before she left Chimney Top she saw two people get out of the
yellow Dodge Charger, one through the driver’s door and one through the passenger’s
door. Hale started walking toward his friend’s apartment. Cox stated that Hale was
walking away and “it looked as if [the people from the yellow Dodge Charger] were
proceeding towards him.”
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Cox went home. She stated that Hale telephoned her as she was arriving home
and asked her to pick him up “on the road past Summit, which is the apartment complex
right next to Chimney Top.” She picked Hale up, and they went home. When they got
home, Hale told Cox: “That they got into it. He fought with them, and that he hit them - -
hit one of them.” Hale then telephoned Cox’s mother, his mother, and the police.
Cox was shown a video taken at the IHOP, and she stated that it showed the
yellow Dodge Charger leaving the IHOP. She stated: “He makes it to the bottom of the
hill, and it looks as if he is backing into this - - it’s a little cut area, it’s not an actual
road.” She stated that the video then showed her car passing the yellow Dodge Charger
and the yellow Dodge Charger pulling out and following her car.
Kara March (“March”), the waitress who accompanied Hale out to the IHOP
parking lot, testified that she was working at IHOP as a server, but she was not the person
who served Plaintiff and Holland on the date of the Assault. On the date of the Assault,
March had just finished cleaning a table “or something” and:
[Hale] came out and he was like, “Are you guys going to let them walk
out?” And I had said, “Who?” And he said, “The table back here.” At the
time, he’s walking, so I follow him shortly behind. And I believe we have -
- we’ve seen pictures of that.” . . . He continues to walk, to follow the guys
outside of the - - outside of the store, outside of the restaurant. . . .
March followed Hale. She stated: “My point of following him was to get these guys to
pay. That was my only focus was to get the guys to pay their ticket.” March admitted
that Hale was a dishwasher and not a manager, and she was not following what she
understood to be the policy about walkouts when she followed Hale. March never had
worked with Hale before that day and did not know that he had a criminal record.
March stated that she and Hale approached the yellow Dodge Charger, and Hale
opened the driver’s-side door. The driver was inside the car, but the passenger was not
yet inside the car. March stated:
And then when he opened the door, the driver got out and said, “Don’t
touch my car.” And then the passenger come around to the front and asked
me how much the ticket was. I said, “I will run in and find out.”
I ran back into the restaurant. Went to the register. Looked the
ticket up on the computer. Got the total. Went back out. Told the
passenger the total.
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He’s standing at the front of the car now. He hands me a 20 and a
10, I believe. He handed me $30 total. I come back, and he tells me,
“Leave the rest for the server.” I said, “Okay.”
I then come back inside and cash out the ticket. And I believe Mr.
Hale is close behind me, but I’m not sure. . . . As I walk in and cash out the
ticket, then the passenger comes in after that and he takes the rest of the
money. I don’t know what he does with that. I’m guessing he gives it to
his server. And then I go back to work, and it’s a regular day after that for
me.
March stated that the only statement she heard from Holland was: “Don’t touch my car.”
March testified that she never has seen an IHOP written policy with regard to
walkouts. She stated that there is an IHOP employee handbook, and she was given a
copy of the employee handbook when she was hired. March was asked what sorts of
things were in the employee handbook, and she stated: “I would say your duties, your
responsibilities, how you’re supposed to dress, your uniform, how you’re supposed to
wear your hair, the proper way to wash your hands.” March was asked if there was a
policy with regard to walkouts in the handbook, and she stated: “I’m sure there is in
there. I’m not familiar with it because - - as in the book, I’m not familiar with it.” March
testified that her understanding about the policy with regard to walkouts was that a
manager would go out after the customers along with an employee to act as a witness.
March stated that she did that on one occasion with a manager, but those customers had
already left the parking area.
Plaintiff was asked if he ever had been to that IHOP prior to the Assault, and he
stated: “Yes. Made several trips there. Literally almost weekly.” Prior to the day of the
Assault, however, Plaintiff never had met Hale. Plaintiff did not believe that Holland
ever had met Hale prior to the Assault either. Holland died before Plaintiff was deposed.
On the date of the Assault, Plaintiff had been drinking but was not driving. He
stated that when he and Holland arrived at the IHOP: “I was severely buzzed. I wasn’t
intoxicated not to be able to handle myself. . . . Because I was still able to function - -
walk, talk, mingle - - but I had drinks in my system.” He testified that Holland was the
driver and that Holland had not been drinking. Plaintiff was asked if he ate anything at
the IHOP, and he stated: “Yes. And I know specifically my tab came up to 21.84. . . . I
paid for both of us. The meal was 9.99 apiece.” Plaintiff was asked if he would have
remembered what happened at the IHOP if he had not seen the video, and he stated: “The
money? No. I already knew that I paid. I stated that several times. As far as specifically
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how it went down, no, I wouldn’t have recalled specifically, but I said that several times,
that the money was on the table.”
Plaintiff testified that from memory he thought the first time Hale spoke to them
was inside the IHOP, but on the video it appears to be outside. He stated: “But I just
know we had a confrontation right there towards the door.” Plaintiff does not remember
any details about the confrontation. Plaintiff does not remember any of the conversations
with Hale, and does not know if Hale physically touched him or Holland at the IHOP.
Plaintiff could not recall if Holland’s car followed the car Hale was in, but he
stated: “No, but per statement, we were actually followed. And I also seen the video - - I
see that on the video we was also followed.” When asked what he meant by per
statement, Plaintiff stated: “I don’t remember, but documentation, police reports, so forth
and so on, states that we were followed, and also the video shows that we were
followed.” Plaintiff never has seen any statements made by Holland, Hale, or any
employee of IHOP.
Plaintiff could not recall stopping after he and Holland left the IHOP. He admitted
that he does not even recall leaving the IHOP parking lot. Plaintiff admitted that he has
no recollection about being followed by the car Hale was in, and that he was just
testifying as to “what [he] saw in the video and was written in the statements, correct.”
Plaintiff stated that he remembers being at the IHOP, but stated: “My memory stops from
when I paid my money. When I knew that it was paid and I got ready to leave. But other
than that, anything after that, I do not remember.” Plaintiff was asked if his last memory
was of being at the IHOP and getting his money off of the table, and he stated: “Correct.”
Plaintiff stated that his next memory was from: “Four days later, when [he] woke up from
the coma [at Vanderbilt University Medical Center].”
Plaintiff was asked if he was testifying that he left money on the table, and he
stated: “That’s 100 percent correct. . . . It’s 21.84. I left two twenties.” Plaintiff was
asked if he remembered anything that happened in the IHOP parking lot, and he stated: “I
remember the conversation about the tab. And I said, “I’ve already paid, the money is on
the table”, so forth and so on. And then that’s when I remember - - I didn’t even know
[Holland] gave them money again until after, you know, the conversation, and I went
back in there to get my money.” Plaintiff then stated that he was in the car before the
conversation with Hale occurred. Plaintiff could not remember if Holland was already in
the car at that point or not. He also could not remember if Hale touched Holland’s car.
Plaintiff was asked why there was confusion about whether he and Holland had
paid their bill, and he stated:
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Every time you go to IHOP, you’re supposed to pay at the door. . . . It was
a lack of not paying attention on our behalf that we left the money - - that I
left the money on the table. . . . So I’m very well aware that you’re
supposed to pay at the door. I’ve went there several times, to know that.
It’s just partying, having fun, boom, forgot.
When asked again if he had any memory of whether Holland’s car followed the
car Hale was in or if it was the other way around, Plaintiff stated:
Well, I can answer that in another way. . . . If we’re heading out first, and
this is a one way street, the only way - - we were in front of him. He
couldn’t go around us. It’s not like the streets are double. So the only way
we could have followed him is if when we got to the end, we made a right
and turned around. Which the only way you still can make a right - - you
still have to go to the light and come back around. They would have been
gone by then. So that there, it’s obvious that they had to follow us. . . . No
[there’s no place to pull over and wait for them]. The reason why it’s not a
place to pull over right there is because it’s a - - what do you call that? A
car lot. That is Carnival Kia - - well, it was Carnival Kia at that point in
time. And they had cars right there. So I don’t know how we would have
pulled over there when there’s cars for sale right on the side of the road.
Plaintiff was asked if he and Holland would have pulled over, waited for Hale to pass,
and then pulled out after Hale, and Plaintiff stated: “Not for any reason that I would have
thought of. Not that I can say that that’s not what happened, but not for any reason I
would have thought of.”
Plaintiff testified that he never has lived at Chimney Top. Plaintiff stated that
when he and Holland left the IHOP they “were actually going to some friends’ house, a
couple of female friends, to party, to have fun, and we’d go home, and that was the plan.”
Plaintiff could not remember the names of these friends and when asked if he knew
where the friends lived he replied: “I don’t. Chimney Top, from my understanding. It
was his female friends. One of his friends who had a friend with her.” Plaintiff did not
know when the arrangements had been made to go see these friends. Plaintiff was asked
if Holland had had a telephone conversation with these friends, and Plaintiff stated:
“That’s where we was going over to one of his female friends’ house. Which [Holland]
had a lot of females. That was just him. . . . I was a tag along buddy at that point in
time.” When asked again if he knew which building or apartment the friends lived in,
Plaintiff stated: “Huh-uh (negative). Because he’s that type of detail person. Like, ‘Man,
just shut up and let’s go.’ That’s the type of person [Holland] was.”
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Plaintiff was asked if he had spoken with Holland about what happened that night,
and he stated:
Actually, when the situation happened, I was real upset with it happening,
and so I distanced myself from him. . . . He went to the grave without me
speaking to him. And it kind of really bothered me about it, because I was
upset with the stories that were going around, saying that he ran and left me
because he was scared of the guy. But, you know, I never really got his
side of the story. I took what was being told to me and I didn’t want to deal
with it no more. So I never had a conversation with him.
Hale testified that he never met Plaintiff or Holland until the day of the Assault.
Hale clocked out from his shift at IHOP at 6:34 a.m. Plaintiff and Holland left the IHOP
at 6:34 a.m. Hale thinks he was already outside when Plaintiff “got up to go out there.”
Hale stated that he passed Holland going out as Hale was coming in. Hale was asked
why he had been outside, and he stated: “I was outside smoking. And on my way back in
[Plaintiff] told me to tell Holland to pay for the meal.” Hale testified that Plaintiff “said
hey, make sure my home boy pay for the meal.” Hale testified that when he passed
Holland, he told Holland what Plaintiff had said and kept walking. Hale stated: “I didn’t
wait for any response or anything. I just said your home boy said you got to pay for that
meal and I kept walking.” Hale looked back and saw Holland leave without paying.
Hale was told that Plaintiff claimed to have left money on the table and Hale stated: “No,
sir.”
Hale stated that he and a waitress went outside. Hale was on the driver’s side of
Holland’s car. Hale walked up and knocked on the driver’s side window. Hale stated
that Holland opened the door “and threatens me and said I could have shot your big ass
walking up on my car like that.” Hale testified that Holland said these words with a
threatening tone. Hale stated that he replied: “It sound good. For twenty-three dollars
and some change? You are going to kill me over twenty-three dollars and some change?”
Hale could not remember Holland’s response. Hale testified that Holland made Plaintiff
go back inside to pay. Hale stated that the waitress went back inside, then Hale went
back inside, and then Plaintiff went back inside. Hale went back to the drink station to
get an orange juice. Plaintiff headed back to where he and Holland had been sitting.
Plaintiff then left the restaurant. Hale headed toward the lobby, but turned around. He
could not remember why he turned around.
Hale testified that there was no physical contact between Hale and Plaintiff, or
Hale and Holland at the IHOP. Hale stated that after Plaintiff had paid the bill and exited
the IHOP, Hale did not think anything else was going to happen. Hale then headed out
the door to meet his girlfriend who was waiting in the parking lot. Hale stated that Cox
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had her four year old son in the car with her. Hale stated that when he got into Cox’s car,
Holland pulled up and “[Holland] got to talking more smack. But I can’t really recall
what he said. But I know he was making gestures and stuff. And then I knew that my
girl, her son was with me, so I didn’t say anything. Now, it’s like real serious.” Hale
stated that he did not respond to Holland.
Holland pulled his car around the back of the IHOP and all the way around and out
on to the street. Cox then backed her car up and pulled out of the IHOP parking lot. Hale
stated that when they got to the end of the street, he saw the yellow Dodge Charger,
which was on the passenger side of Cox’s car. The yellow Dodge Charger was parked.
Cox drove past the yellow Dodge Charger. The yellow Dodge Charger then pulled out
and followed Cox’s car. Hale explained that they had passed the Kia dealership and that
the yellow Dodge Charger had been parked near the Steak n’Shake.
Hale noticed the yellow Dodge Charger following them, and he said to Cox:
“these guys are following us, let’s go to Chimney Top. Because that’s where her brother
was. And I had another friend that lived up there.” Hale decided to go to Chimney Top:
“Because I knew these guys was wanting some trouble. They was following us. You
know what I’m saying? So I decided to go that way where I had some help - - . . . if I
needed it.” Hale stated that he couldn’t be sure that they would follow, “[b]ut you know
what I’m saying? You just had threatening words with these guys, so I’m assuming they
would follow me, so that’s why I wanted to detour this way.” Hale was asked why he
didn’t just call the police, and he stated: “Because at that time in my life I was a dumbass.
I thought I could handle stuff myself.” Hale was asked how he got the code for the
Chimney Top gate, and he stated: “Because my friend lives there and he had the code.
It’s like, you can go ahead and punch it in and come on down, whenever, you know, that
I come to visit.”
Between the time they left the IHOP and the time they arrived at Chimney Top,
Hale had called his friend and “said I think these guys are following us. I think there’s
going to be some trouble. Put your shoes on and come outside.” Hale stated that he tried
to telephone Cox’s brother, but could not reach him. Hale told Cox to park, and he saw
his friend, so he got out of the car and began walking toward his friend.
Hale stated: “As I was getting out of the car, like you know, with my leg out of the
car, Holland is trying to call me to his car. And I tell him hell no. And that’s when I
really take off.” Holland got out of his car and ran up behind Hale. Hale stated:
So I run down into the parking lot. Because at first I was on the sidewalk.
So I run down actually into the street. And he chases me into the street.
And then that’s when I get away from him. And as I was turning around to
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go back towards [Cox’s] car [Plaintiff] gets out of the car and acts like he
has a gun that he is hiding underneath his shirt.
Plaintiff did not pull a gun, and Hale approached him and hit Plaintiff in the face.
Plaintiff fell to the ground. Hale stated that Holland was running behind Hale.
Hale ran “straight to their car.” When asked why he ran to their car, Hale stated:
“Because I was going to get away.” Hale got into the yellow Dodge Charger, put it in
gear, drove forward, and hit Plaintiff. Hale stated that he was not intending to hit
Plaintiff, but he also was not intending to avoid hitting Plaintiff. Hale was asked where
Holland was at that point in time, and he stated: “I think he was paused in shock. I don’t
know. Like he wasn’t chasing me anymore once I ran him over. He was stuck for a
minute, I guess.” Hale stated:
When I go straight - - the parking lot - - normally where I’m at it’s a circle,
but that day they had built a pipe so that - - I guess it was a pipe - - or
whatever. So I had - - I was fixing to leave, but it was dug, so I had to turn
around - - . . . and that’s when Holland ran up on the car and got to
attacking me through the window.
Holland was trying to grab him, and Hale “sped up on the gas.” He stated: “I slammed
on the gas.” Hale then hit Plaintiff again. Holland was running behind the yellow Dodge
Charger at that point. Hale drove away from Chimney Top. He pulled into another
nearby apartment complex, parked and locked the car, and telephoned Cox to come get
him. He and Cox went home where Hale telephoned Cox’s mother, his mother, and the
police. Hale was sentenced to “Eight years or 30 percent” in connection with the Assault.
Christina McNamara (“McNamara”) was the IHOP manager who hired Hale.
McNamara testified that initially she was skeptical about Hale’s background. She
explained:
That he had a felony on his record. And when I say that, because he was
forthcoming about it, I felt more at ease about it, about hiring him. Most
people who know that a company like ours didn’t really do background
checks for associates would not even put it on there to begin with. And he
was very open and honest about what he had listed as his felony on the
application.
When asked what type of felony Hale had listed on his application, McNamara stated: “I
think it had something to do with a firearm and battery, maybe. . . . Or assault of some
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sort.” McNamara testified that she did not do background checks for hourly associates
and, indeed, was not permitted to do them.
With regard to the Assault, McNamara stated:
I had seen [Hale] as he was clocking out. He was finishing up. He was
clocking out. He had told me good-bye. I believe I went on with my duties
elsewhere after that.
Next thing I heard was somebody saying - - I believe somebody was
saying that somebody was trying to walk out on their ticket. And then I
saw [Hale] out there at the car. So in my head I thought, “Oh, he knows
this guy, you know.”
Apparently, that wasn’t the case. He came back in. The guy paid
his ticket. [Hale] left. That’s all I assumed that the situation had ended up
to be.
I don’t even recall saying anything to [Hale] about it, because, under
my assumption, he was just out there talking to a guy he knew.
And then I get a phone call from somebody - - I don’t remember; it
was one of the employees who had already left for the day - - saying that an
incident had just occurred with [Hale] and the guy who had walked out on
his particular - - or allegedly walked out on his ticket. And that’s when we
had learned of the situation.
Thomas E. Gough “(Gough”), the Chief Financial Officer for CFRA testified that
CFRA stands for Carolina Family Restaurant Associates. He explained that CFRA
operates over 40 IHOP locations, and that all of the hiring is done by CFRA, all of the
management is done by CFRA, and all of the operations are governed by CFRA. Gough
testified that CFRA created a written policy with regard to walkouts after the date of the
Assault. At the time of the Assault there was a verbal policy with regard to walkouts.
Gough stated that the verbal policy was:
We don’t want our employees going out into the parking lot after
customers. All of our policies - - we have a back door policy, kind of the
same thing, that no one’s in the dark - - and it’s mostly driven by the dark.
But, like, taking out the trash, any type of incident where we’ve got our
employees going in the parking lot, we don’t want that taking place at
nighttime.
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Then again, as far as dining and dashing, you know, typically it’s
happening usually at night, more often than not. So the policy is for - - not
to leave the building.
Gough testified that there is a government program, Work Opportunity Tax Credit,
that provides incentives for employers to hire certain targeted individuals such as ex-
convicts in order to receive a tax credit. Gough stated: “While the government’s had the
program out there, we’ve always taken advantage of it.” He stated that the program has
been in place for ten or twelve years and was in place at the time of the Assault.
Gough testified that at the time of the Assault, CFRA only did background checks
for management employees due to factors of cost and time because there is a high
turnover in regular employees in the restaurant industry.
On May 25, 2016, the Trial Court entered its order granting summary judgment to
CFRA after finding and holding, inter alia:
Mr. Hale was employed as a dishwasher at an IHOP location, owned
by CFRA, LLC. At approximately 5:30 am on May 12, 2013, Plaintiff and
his friend, Mr. Holland, entered the restaurant and occupied a booth for an
hour. Plaintiff was intoxicated, and both he and Mr. Holland had been
drinking the night before. Mr. Hale clocked out of his shift at 6:34 am and
stepped outside the restaurant to wait for his ride. Plaintiff and Mr. Holland
finished their meal and left money at the table, in lieu of paying at the front
cash register as was the custom practice [sic]. Mr. Hale observed Plaintiff
and Mr. Holland as they left the restaurant, and became concerned as to
whether they did or did not pay for their meal. Mr. Hale and a waitress
went out to the parking lot and confronted Plaintiff. Plaintiff gave them
money for the bill, then went inside to retrieve the money that he had left
on the table. Although words were exchanged, no physical altercation
ensued at that time. Mr. Hale’s girlfriend picked him up at the restaurant
and together, they drove to Chimney Top Apartments. There is a dispute as
to whether video surveillance shows that they were followed by Plaintiff
and Mr. Holland. Nevertheless, once Mr. Hale exited his car at the
apartment complex, a physical confrontation ensued. Mr. Hale allegedly
exchanged blows with Plaintiff and Mr. Holland, and ran over Plaintiff in
his car. Plaintiff now contends that CFRA, LLC, [sic] is liable for any
harm caused by Mr. Hale’s actions.
***
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In regards to any altercation that occurred on IHOP’s premises,
Plaintiff does not dispute that Mr. Hale had no authority to intervene when
Plaintiff left the restaurant. Plaintiff has offered no evidence to suggest that
Mr. Hale’s actions were required by his position, job title, job description,
or that Defendant has otherwise instructed him to intervene on behalf of his
employer. Rather, the record states that the alleged assault occurred at
Chimney Top Apartments, nearly one mile away from any property owned
by CFRA, LLC. Given the location of the incident, the nature of Mr.
Hale’s job, and the fact that Mr. Hale had completed his shift before the
alleged harm occurred, it is impossible for a reasonable jury to conclude
that Mr. Hale’s actions could have been “reasonably foreseen” or otherwise
prevented by the defendant.
Video footage shows Mr. Hale being pursued by the Plaintiff after
the initial encounter, and it follows that his off-site response to Plaintiff’s
pursuit was motivated by a purpose outside the scope of his employment.
At the time that the harm occurred, Mr. Hale was “obeying his own will,
not as a servant or agent, but as an independent person.” Due to the fact
that Mr. Hale was not fulfilling some purpose of the defendant, and due to
the unrelated location of the harm, this Court finds that the agency
relationship was, at least temporarily, suspended.
Plaintiff further contends that Defendant breached its duty of care.
The applicable law states that a duty can be imposed on a business to take
reasonable measures to protect its customers from foreseeable criminal acts
that occur on its premises. However, this duty does not extend to
unforeseeable crimes that occur off premises. The video shows a verbal
confrontation in the parking lot of the IHOP location, but the alleged
assault occurred in a separate location, on private property over which
Defendant had no control.
***
The evidence in this case clearly demonstrates that any criminal act
occurred outside of the immediate vicinity of Defendant’s premises, and
would not have been “reasonably foreseeable” to the Defendant. The
plaintiff has not offered proof to suggest that the employee was acting
within the course and scope of his employment when the injury occurred.
Thus, based on its review of the record, this Court finds that “there is no
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genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.”
(citations omitted). Plaintiff appeals the May 25, 2016 order to this Court.
Discussion
Although not stated exactly as such, Plaintiff raises two issues on appeal: 1)
whether the Trial Court erred in granting summary judgment to CFRA on the claim for
vicarious liability; and, 2) whether the Trial Court erred in granting summary judgment to
CFRA on the claim for direct liability.
As our Supreme Court has instructed:
Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
summary judgment de novo, without a presumption of correctness. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
so, we make a fresh determination of whether the requirements of Rule 56
of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).
***
[I]n Tennessee, as in the federal system, when the moving party does not
bear the burden of proof at trial, the moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
moving party to support its motion with “a separate concise statement of
material facts as to which the moving party contends there is no genuine
issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
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separate, numbered paragraph and supported by a specific citation to the
record.” Id. When such a motion is made, any party opposing summary
judgment must file a response to each fact set forth by the movant in the
manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
to survive summary judgment, the nonmoving party “may not rest upon the
mere allegations or denials of [its] pleading,” but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, “set
forth specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
“must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
Ct. 1348. The nonmoving party must demonstrate the existence of specific
facts in the record which could lead a rational trier of fact to find in favor of
the nonmoving party. If a summary judgment motion is filed before
adequate time for discovery has been provided, the nonmoving party may
seek a continuance to engage in additional discovery as provided in
Tennessee Rule 56.07. However, after adequate time for discovery has
been provided, summary judgment should be granted if the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving party comes
forward with at the summary judgment stage, not on hypothetical evidence
that theoretically could be adduced, despite the passage of discovery
deadlines, at a future trial.
Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).
We first consider whether the Trial Court erred in granting summary judgment to
CFRA on the claim for vicarious liability. As this Court has explained:
It has long been a well-established rule that for an employer to be held
vicariously liable, through the respondeat superior doctrine, for an
employee’s actions, the plaintiff must prove that the employee was acting
within the course and scope of his employment when the injury occurred.
Hamrick v. Spring City Motor Co., 708 S.W.2d 383, 386 (Tenn. 1986);
Tennessee Farmers Mut. Ins. Co. v. American Mut. Liability Ins. Co., 840
S.W2d 933, 937 (Tenn. App. 1992).
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Ordinarily the question of whether an employee is acting within the
course and scope of his employment is one of fact for the jury; however,
where the departure from the employer’s business is of such a “marked and
decided character” that reasonable minds could reach but one conclusion
under the undisputed facts, summary judgment is proper. Craig v. Gentry,
792 S.W.2d 77, 80 (Tenn. App. 1990); Home Stores, Inc. v. Parker, 179
Tenn. 372, 166 S.W.2d 619, 622 (Tenn. 1942); Tennessee Farmers, 840
S.W.2d at 936-7.
Davis v. Modine Mfg. Co., 979 S.W.2d 602, 607-08 (Tenn. Ct. App. 1998). This Court
further discussed vicarious liability in Tennessee Farmers Mut. Ins. Co. v. American Mut.
Liability Ins. Co. stating:
While the principles embodied in the respondeat superior doctrine
are relatively easy to articulate, they are not always easy to apply. Deihl &
Lord v. Ottenville, 82 Tenn. (14 Lea) 191, 194 (1884). The doctrine does
not lend itself to bright line rules, Hall Grocery Co. v. Wall, 13 Tenn. App.
203, 208 (1930), but rather requires the weighing and balancing of the facts
and circumstances of each case. Leeper Hardware Co. v. Kirk, 58 Tenn.
App. 549, 556, 434 S.W.2d 620, 623–24 (1968); Fitzgerald v. Wood, 34
Tenn. App. 345, 349, 238 S.W.2d 103, 105 (1950).
The courts have frequently turned to the Restatement (Second) of
Agency for the theoretical framework for deciding whether an employee’s
conduct is within the scope of his or her employment. Restatement
(Second) of Agency § 228 (1957) provides:
(1) Conduct of a servant is within the scope of employment if,
but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and
space limits;
(c) it is actuated, at least in part, by a purpose to serve the
master; and
(d) if force is intentionally used by the servant against
another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of
employment if it is different in kind from that authorized, far
beyond the authorized time and space limits, or too little
actuated by a purpose to serve the master.
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In addition, Restatement (Second) of Agency § 229 (1957) states:
(1) To be within the scope of employment, conduct must be
of the same general nature as that authorized, or incidental to
the conduct authorized.
(2) In determining whether or not the conduct, although not
authorized, is nevertheless so similar to or incidental to the
conduct authorized as to be within the scope of employment,
the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such
servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is
apportioned between different servants;
(e) whether or not the act is outside the enterprise of the
master or, if within the enterprise, has not been entrusted to
any servant;
(f) whether or not the master has reason to expect that such an
act will be done;
(g) the similarity in quality of the act done to the act
authorized;
(h) whether or not the instrumentality by which the harm is
done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of
accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
Tennessee Farmers Mut. Ins. Co. v. American Mut. Liability Ins. Co., 840 S.W.2d 933,
937-38 (Tenn. Ct. App. 1992).
In the case now before us with regard to this issue, the Trial Court specifically
found and held:
Plaintiff has offered no evidence to suggest that Mr. Hale’s actions were
required by his position, job title, job description, or that Defendant has
otherwise instructed him to intervene on behalf of his employer. Rather,
the record states that the alleged assault occurred at Chimney Top
Apartments, nearly one mile away from any property owned by CFRA,
LLC. Given the location of the incident, the nature of Mr. Hale’s job, and
the fact that Mr. Hale had completed his shift before the alleged harm
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occurred, it is impossible for a reasonable jury to conclude that Mr. Hale’s
actions could have been “reasonably foreseen” or otherwise prevented by
the defendant.
The undisputed evidence in the record on appeal shows that Hale was hired as a
dishwasher and that his job duties did not involve interacting with customers, particularly
with regard to payment of a bill. The evidence further shows that after Hale took it upon
himself to confront Plaintiff and Holland in the IHOP parking lot that the issue regarding
the bill was resolved and that Plaintiff and Holland then left the IHOP. Plaintiff has
shown no injury resulting from Hale’s actions up until after Plaintiff and Holland left the
IHOP.
The undisputed evidence shows that before the Assault occurred, Hale had
finished working his shift, had clocked out, and had left the IHOP. Hale’s conduct at
Chimney Top was not within his IHOP job duties, was beyond the authorized time and
space limits of Hale’s employment, and was too little actuated by a purpose to serve
IHOP. Once the bill had been paid and all parties had left the IHOP premises, it was not
reasonably foreseeable that Hale and Plaintiff would go to another location where Hale
then would assault Plaintiff. Hale’s actions at Chimney Top were simply too attenuated
from his employment at IHOP for a reasonable jury to conclude that Hale was acting
within the course and scope of his employment when he assaulted Plaintiff. Hale was
off-duty, off the IHOP premises, and not involved in any action at Chimney Top which
reasonably could have been considered to be for the benefit of his employer.
Furthermore, the force Hale used when he assaulted Plaintiff was not used for the benefit
of IHOP as Hale did not use this force until after the bill had been paid. Hale exercised
no force when he confronted Plaintiff and Holland in the IHOP parking lot about their
bill. Hale’s employer, CFRA, simply could not have expected Hale’s use of force in this
situation.
CFRA made a properly supported motion for summary judgment showing that
Plaintiff would be unable to prove that Hale was acting within the course and scope of his
employment at the time that he assaulted Plaintiff. While there may be a genuine issue as
to some facts, there is no genuine issue as to any material fact. As such, CFRA was
entitled to summary judgment on the claim for vicarious liability.
Next, we consider whether the Trial Court erred in granting summary judgment to
CFRA on the claim for direct liability. Plaintiff alleged that CFRA was liable for
negligent premises security and for negligently hiring and supervising Hale. With regard
to negligent premises security, we note that this Court has held that a business owner has
no duty to protect customers from an assault perpetrated by an off-duty employee outside
of the business premises. Finger v. James Gang Amusements, No. E2004-00593-COA-
18
R3-CV, 2005 WL 756231, at *2 (Tenn. Ct. App. April 4, 2005), no appl. perm. appeal
filed. CFRA has shown that the assault in the case now before us was perpetrated by an
off-duty employee outside of the IHOP premises. As such, CFRA negated an essential
element of Plaintiff’s claim for negligent premises security, i.e., duty, and was entitled to
summary judgment on this claim.
As for Plaintiff’s claim for negligent hiring and supervision, we note that “[a]
plaintiff in Tennessee may recover for negligent hiring, supervision or retention of an
employee if he establishes, in addition to the elements of a negligence claim, that the
employer had knowledge of the employee’s unfitness of the job.” Bazemore v.
Performance Food Group, Inc., 478 S.W.3d 628, 638-39 (Tenn. Ct. App. 2015) (quoting
Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d 712, 717 (Tenn. Ct. App.
2008)). Plaintiff has produced no proof that Hale was unfit for the job of a dishwasher,
which is the job for which CFRA hired Hale. We decline to hold that CFRA should be
held liable for negligent hiring simply because it hired a convicted felon. Such a holding
would effectively deter employers from hiring anyone with a felony record. The result
would be that convicted felons would have a nearly impossible time finding gainful
employment that would allow them to turn their lives around and become productive
citizens. This would be contrary to public policy as evidenced by the Work Opportunity
Tax Credit program that Gough testified about, a program which provides incentives for
employers to hire certain targeted individuals such as ex-convicts in order to receive a tax
credit.
We further decline to hold that CFRA should have provided a “capable guardian”
to supervise Hale while he was at work. Plaintiff has produced no evidence showing that
such a measure was necessary. Plaintiff has shown no injury that occurred during the
time period when CFRA could have supervised Hale’s actions. Nor has he shown that
CFRA was on notice that such measures were necessary. As dicussed more fully above,
CFRA could not have supervised Hale’s actions after Hale had finished working his shift,
clocked out, and left the IHOP premises. Hale was on his own time and acting in his own
interest at the time of the Assault. CFRA made a properly supported motion for summary
judgment showing that Plaintiff cannot establish that CFRA had knowledge of Hale’s
unfitness for his job as a dishwasher. As such, CFRA was entitled to summary judgment
on this claim.
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Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court
for collection of the costs below. The costs on appeal are assessed against the appellant,
Henry Fletcher, and his surety.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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