Jordan v. Western Distributing Co.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1965
LLOYD E. JORDAN,
Plaintiff - Appellant,
versus
WESTERN DISTRIBUTING COMPANY,
Defendant - Appellee,
and
STEPHEN PHILIP MEININGER; RONNIE GENE SASSER,
JR.,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
03-950-CCB)
Argued: March 17, 2005 Decided: May 2, 2005
Before MICHAEL and DUNCAN, Circuit Judges, and Frederick P. STAMP,
Jr., United States District Judge for the Northern District of West
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for
Appellant. Andrew Gendron, VENABLE, L.L.P., Baltimore, Maryland,
for Appellee. ON BRIEF: Gabrielle S. Moses, VENABLE, L.L.P.,
Baltimore, Maryland; Luis A. Toro, SENN, VISCIANO, KIRSCHENBAUM,
MERRICK, P.C., Denver, Colorado, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
This case arises from an incident that occurred on February
26, 2002, on Interstate 95 in Baltimore, Maryland. On that date,
Ronnie G. Sasser, Jr. (“Sasser”) and Stephen Philip Meininger
(“Meininger”), while transporting currency in an armored vehicle
pursuant to their duties as drivers and security guards for Western
Distributing Company (“Western”) and its subsidiary, United States
Armored Company, allegedly attempted to “cut off and to force
[Lloyd Jordan’s] vehicle off the road on numerous occasions.”
Compl. ¶ 11. During the incident, Meininger also allegedly leaned
out of the passenger window and repeatedly aimed a sawed-off
shotgun at Jordan and threatened to “blow off” Jordan’s head. Id.
The Maryland State Police subsequently stopped and arrested
Sasser and Meininger. Sasser was charged with possession of
marijuana and carrying a concealed weapon without a proper permit.
Meininger was charged with first degree assault of Jordan, second
degree assault of Jordan, concealment of a deadly weapon,
possession of a controlled, dangerous substance, and possession of
paraphernalia. Sasser pleaded guilty to the marijuana charge and
the State dismissed the weapon charge against him. A jury
convicted Meininger of first degree assault against Jordan and
possession of a controlled, dangerous substance.
Jordan filed this civil suit against Sasser, Meininger, and
Western in the Circuit Court for Baltimore County, Maryland. The
3
complaint alleges eight counts, including negligence, assault, and
intentional infliction of emotional distress against Sasser and
Meininger (Counts I through VI), negligence pursuant to the
doctrine of respondeat superior against Western (Count VII), and
negligent hiring, training, supervision, and retention against
Western (Count VIII). Western then removed the case to federal
court pursuant to 28 U.S.C. §§ 1332 and 1441. The district court
entered an order granting Western’s motion to dismiss Count VII
(respondeat superior) and denying Western’s motion to dismiss Count
VIII (negligent hiring, training, supervision, and retention).
Subsequently, the district court entered an order denying Jordan’s
motion for summary judgment on Count VIII and granting Western’s
cross-motion for summary judgment on Count VIII.* These decisions
are the basis of Jordan’s appeal.
I. Respondeat Superior
The district court found that Jordan’s respondeat superior
claim against Western was without merit because the alleged conduct
of Sasser and Meininger was not connected to their duties of
employment. The court found that the actions of Sasser and
Meininger were a departure from Western’s course of business and
were “both unexpected and unforeseeable.” J.A. 86.
*
The district court later granted Jordan’s motion for default
judgment as to Sasser and Meininger. The court entered a joint and
several judgment of $200,000 against them for compensatory damages
and assessed each defendant $100,000 in punitive damages.
4
Jordan argues that the district court erred in dismissing this
claim because respondeat superior liability is an issue that should
be decided by a jury. He asserts that Western can be held liable
for any acts incident to the performance of the duties entrusted to
its employees, even if they are against Western’s orders. He
contends that Sasser and Meininger committed the actions at issue
using Western’s vehicle and the firearms provided to them by
Western to carry out their duties. In addition, he notes that the
attack occurred while Sasser and Meininger were transporting
currency for Western in furtherance of its business. Jordan
asserts that “[t]he corporation clearly benefitted from the
guarding and transport of U.S. currency by Sasser and Meininger and
it was while furthering the transport of the currency that Sasser
and Meininger attacked [him].” Appellant’s Br. at 16.
Western responds that the wrongful actions taken by Sasser and
Meininger –- specifically, in trying to force Jordan off the road,
pointing a weapon at him, and threatening to shoot him –- were not
of the kind that they were hired to perform. Further, Western
points out that Sasser and Meininger were subsequently arrested and
separated from the truck as well as the currency that Western
entrusted to their care. Western asserts that these circumstances
refute the claim that Western benefitted from Sasser and
Meininger’s conduct. Western argues that Jordan is essentially
claiming that Western is liable simply because Sasser and Meininger
5
were on duty at the time of the incident, and that, under this
theory, an employer would be liable for the actions of its
employees regardless of how outlandish the behavior is. Western
asserts that the district court correctly applied the analysis
outlined in Sawyer v. Humphries, 322 Md. 247, 255, 587 A.2d 467,
471 (1991), and properly concluded that Sasser and Meininger acted
outside of the scope of their duties.
In reviewing a dismissal of claims pursuant to Rule 12(b)(6),
this Court takes the factual allegations of the complaint as true
and reviews any legal issues de novo. Bass v. E.I. DuPont de
Nemours & Co., 324 F.3d 761, 764 (4th Cir.), cert denied, 540 U.S.
940 (2003). Under Maryland law, “the questions of agency and scope
of employment are generally questions for the jury.” Carroll v.
Hillendale Golf Club, 156 Md. 542, 545, 144 A. 693, 695-95 (1929).
However, “‘[w]hen the servant’s deviation from the strict course of
his employment or duty is slight and not unusual, the court may
determine as a matter of law that he is still executing the
master’s business, and if the deviation is very marked and unusual
it may determine the contrary.’” Id. at 546, 144 A. at 695(quoting Mechem on Agency § 1982 (2d ed.)).
Maryland law states:
To be within the scope of the employment the conduct must
be of the kind the servant is employed to perform and
must occur during a period not unreasonably disconnected
from the authorized period of employment in a locality
not unreasonably distant from the authorized area, and
actuated at least in part by a purpose to serve the
master.
East Coast Freight Lines, Inc. v. Baltimore, 190 Md. 256, 285, 58
6
A.2d 290, 304 (1948) (citations omitted) (quoted in Sawyer v.
Humphries, 322 Md. 247, 255, 587 A.2d 467, 471 (1991)). In Sawyer,
the court further noted that the conduct must be “expectable” or
“foreseeable.” 322 Md. at 256, 587 A.2d at 471. The Sawyer court
also found that,
particularly in cases involving intentional torts
committed by an employee, this Court has emphasized that
where an employee’s actions are personal, or where they
represent a departure from the purpose of furthering the
employer’s business, or where the employee is acting to
protect his own interests, even if during normal duty
hours and at an authorized locality, the employee’s
actions are outside the scope of his employment.
Id. at 256-57, 587 A.2d at 471. Finally, the court noted that
“‘[w]here the conduct of the servant is unprovoked, highly unusual,
and quite outrageous,’” this can in and of itself be sufficient to
indicate that the conduct was personally motivated and outside of
the scope of employment. Id. at 257, 587 A.2d at 471-72 (quoting
Prosser and Keaton On The Law of Torts § 70, at 506 (5th ed.
1984)).
We find that the district court properly dismissed Jordan’s
respondeat superior claim. We cannot consider the actions of
Sasser and Meininger to be “of the kind” they were employed to
perform. Sasser and Meininger were not acting to protect the cargo
entrusted to them during this incident –- rather, personal animus
motivated their actions. While it is true that Sasser and
Meininger committed these acts while on duty, using the truck and
guns provided to them by Western, they were in no way attempting to
7
advance Western’s interests. Their actions actually placed the
safety of the cargo entrusted to them in peril, rather than
protecting it. Moreover, it goes almost without saying that their
actions were “unprovoked, highly unusual, and quite outrageous.”
Thus, the district court’s decision to dismiss Count VII was
proper.
II. Negligent Hiring, Training, Supervision and Retention
Certain additional facts are relevant in determining whether
the district court properly granted summary judgment to Western on
Count VIII (negligent hiring, training, supervision and retention).
Pursuant to United States Department of Transportation regulations,
Western conducts pre-employment drug screenings of new drivers. If
an employee tests positive, Western terminates his employment.
Sasser’s pre-employment drug screening was negative. However,
Meininger’s screening was positive and Western initially terminated
him on November 24, 2000. Meininger then exercised his right under
the United States Department of Transportation regulations to see
a substance abuse professional, and privately engaged the services
of JoJan P. Adams (“Adams”). Adams filed a report with Western
stating that Meininger did not need drug treatment and should be
returned to full-time employment as soon as possible. Western then
required Meininger to undergo another drug screening, which he
passed. Western re-hired Meininger as a driver on January 4, 2001
8
without requiring him to submit another application and without
conducting any further background checks.
In his complaint, Jordan claims that Western violated several
provisions of the Federal Motor Carrier Safety Regulations
(“FMCSR”) in securing and maintaining Sasser and Meininger’s
employment, and was consequently negligent in hiring and retaining
Sasser and Meininger. Jordan alleges the following violations: (1)
failing to contact Sasser and Meininger’s previous employers to
inquire about past substance abuse; (2) allowing Meininger, a
“known substance abuser,” to operate a commercial motor vehicle,
and failing to inform the Bureau of Engraving and Printing of
Meininger’s positive drug test in 2000; (3) failing to conduct a
proper pre-employment/return to duty drug test prior to re-hiring
Meininger in January 2001; (4) accepting the findings of
Meininger’s substance abuse counselor, whose testing did not comply
with federal regulations; and (5) failing to conduct proper follow-
up drug tests during the twelve months after Meininger was re-
hired.
For the purpose of resolving the summary judgment motions, the
district court assumed, without deciding, that Western breached its
duty of care to the general public by not following all of the
federal regulations with respect to performing background checks on
Sasser and Meininger, hiring Meininger, and requiring Meininger to
submit to follow-up drug tests. The district court also assumed
9
that Jordan suffered actual damages. Nevertheless, the district
court found that Jordan’s claim of negligent hiring and retention
lacked merit because he failed to show that Western’s negligence
was the proximate cause of his injuries. Specifically, the court
found Jordan’s evidence deficient in two respects: (1) he failed to
present sufficient proof that Meininger was actually impaired by
marijuana at the time of the incident; and (2) he presented no
facts from Sasser or Meininger’s past that made it foreseeable to
Western that they would become violent or assaultive.
The district court first concluded that, in order to prove
that Western was negligent in (1) hiring Meininger despite his past
drug use, and (2) failing to conduct follow-up tests to prove he
was drug free, Jordan must prove that Meininger was in fact under
the influence of drugs at the time of the incident and that his
impairment caused Jordan’s injuries. In evaluating the evidence,
the district court found that Jordan relied on the fact that
Meininger tested positive for drugs seven days after the incident
and that a jury found him guilty of possessing a controlled,
dangerous substance at the time of the incident. The district
court explained that these circumstances did not logically require
a finding that he was actually impaired at the time the incident
occurred. Thus, the district court concluded that no genuine issue
of fact remained with respect to this claim.
10
Next, the district court found that Jordan failed to
demonstrate that Sasser and Meininger’s actions were foreseeable to
Western. The district court noted that the record reflects no
evidence that Sasser or Meininger had ever previously threatened or
committed violence against anyone, either physically or with a
weapon, prior to the incident with Jordan. The district court also
determined that there was no evidence that Sasser or Meininger had
previously threatened to or actually used a vehicle to harm anyone.
The district court noted that Jordan relied on Meininger’s pre-
employment drug screen as the factor that should have put Western
on notice of Meininger’s dangerousness. However, the court found
that a reasonable person would not assume that someone under the
influence of marijuana is likely to become violent.
Based on these findings, the district court concluded that no
genuine issue of material fact existed with respect to Jordan’s
claim of negligent hiring and retention against Western.
Accordingly, the district court denied Jordan’s motion for summary
judgment and granted Western’s motion for summary judgment as to
this claim.
Jordan argues that the district court erred in granting
Western’s motion for summary judgment because Jordan submitted
sufficient evidence for his claim to be submitted to a jury.
Jordan claims that the evidence shows that Sasser and Meininger
were under the influence of marijuana at the time of the incident.
11
He argues that a police report notes that the cab of the truck that
Sasser and Meininger were driving smelled of burnt marijuana, and
that several grams of marijuana were found in their possession. He
also asserts that they tested positive for marijuana after the
incident. Further, he argues that the harm that Jordan suffered
was foreseeable because the general type of harm he received –-
injury at the hands of carriers under the influence of drugs –- was
attributable to Western’s negligence in hiring Meininger after his
positive drug test and to Western not following up as required by
federal regulations.
Jordan further argues that the intentional nature of
Meininger’s actions did not make the harm unforeseeable. He claims
that the test is not based on intention, but on the general type of
harm. He argues: “Harm caused by drivers and armed guards under
the influence of drugs is a general field of danger. Whether the
actual damage is caused intentionally or unintentionally, the
potential for serious harm existed and was known to Western.”
Appellant’s Br. at 27.
In addition, Jordan asserts that the district court’s finding
that no evidence exists to suggest that marijuana can prompt
violence is “simply ludicrous.” Appellant’s Br. at 27. He claims
that it is well established that marijuana impairs judgment, and
that a jury should decide whether the use of marijuana by Sasser
and Meininger caused them to be reckless and violent or influenced
their decision to assault Jordan.
12
Finally, Jordan contends that proximate cause exists because
the incident with Sasser and Meininger never would have occurred if
Western had properly complied with the applicable regulations
regarding drug testing. He asserts that such testing would have
revealed that Meininger was still abusing drugs and he would have
been terminated. In addition, he claims that if Western had
properly maintained files and shared its background check
information with other federal agencies, Sasser and Meininger’s
“inherently unfit nature would have become apparent.” Appellant’s
Br. at 29.
Western counters that Jordan has again presented no solid
evidence that either Sasser or Meininger was under the influence of
drugs at the time of the incident. Western points out that Jordan
did not verify by deposition, or by statement under oath in any
form, the allegations in his amended complaint, nor did he provide
any affidavits of fact witnesses. Further, Western points out that
the police report cited by Jordan in which the officer noted the
smell of burnt marijuana in the cab of the truck is not included as
part of the record in the Joint Appendix. Western asserts that the
district court correctly concluded that Jordan cannot prove
proximate cause because he has no evidence to support his
allegation that Sasser and Meininger were under the influence of
marijuana at the time of the incident.
13
Further, Western argues that Jordan improperly attempts to
enlarge the scope of foreseeability. Western asserts that “[u]nder
Plaintiff’s theory, had Messrs. Meininger and Sasser committed
theft, arson, insider trading, defamation, fraud, or any other
intentional act, all would be in the ‘general field of danger’ and
foreseeable to Western based on a pre-employment drug screen that
was positive for marijuana.” Appellee’s Br. at 26. Western
contends that the district court properly found that Jordan’s harm
was not foreseeable because it was not the type of harm that a
reasonable person would believe a driver’s drug use would cause.
In addition, Western notes that Jordan has failed to cite any case
in which a court found a link between marijuana use and assault.
Finally, Western reiterates that Jordan produced no evidence
to show that Western breached its duty of care. Western asserts
that Jordan has provided no proof that Western did not comply with
federal regulations. Further, Western asserts that, even if Jordan
had produced evidence of violations, these could not support a
claim for negligent hiring, training, supervision, or retention
based on the holding in Bryant v. Better Business Bureau of Greater
Maryland, Inc., 923 F. Supp. 720 (D. Md. 1996). The Bryant court
held that a state court could not impose liability on an employer
for failing to prevent a harm that is not cognizable under the
common law. Id. at 751. Moreover, Western asserts that Jordan
could not proceed with a negligence claim based on violations of
14
federal regulations because such a claim would be preempted by
federal law.
We review a district court’s ruling on a summary judgment
motion de novo. Karpel v. Inova Health Sys. Servs., 134 F.3d 1222,
1226 (4th Cir. 1998). A court should grant summary judgment only
“if 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.” Fed.
R. Civ. P. 56(c). When deciding whether a genuine issue of
material fact remains, “the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
Under Maryland law,
[i]n order to prove a cause of action for either
negligent hiring, supervision or retention, the Plaintiff
must establish that her injury was caused by the tortious
conduct of [an employee], that the employer knew or
should have known by the exercise of diligence and
reasonable care that the [employee] was capable of
inflicting harm of some type, that the employer failed to
use proper care in selecting, supervising or retaining
that employee, and that the employer’s breach of its duty
was the proximate cause of the Plaintiff’s injuries.
Bryant v. Better Business Bureau of Greater Maryland, Inc., 923 F.
Supp. 720, 751 (D. Md. 1996). In a negligent selection claim,
“there is a rebuttable presumption that an employer uses due care
in hiring an employee.” Evans v. Morsell, 284 Md. 160, 165, 395
A.2d 480, 483 (1978). In cases involving the intentional torts of
15
employees, the critical standard is “whether the employer knew or
should have known that the individual was potentially dangerous.”
Id., 395 A.2d at 483.
In this case, Jordan has established that Sasser and Meininger
were Western employees and that they were responsible for his
injuries. He next must prove that Western “had or should have had
knowledge of [Sasser and Meininger’s] conduct or general character
which would have caused a prudent employer in these circumstances
to have taken action.” Bryant, 923 F. Supp. at 752.
A similar analysis applies when considering whether Western’s
actions were the proximate cause of Jordan’s injuries. Proximate
cause exists when, at the time of the tortfeasor’s negligent act,
the tortfeasor “should have foreseen ‘the general field of danger,’
not necessarily the specific kind of harm to which the injured
party would be subjected as a result of the defendant’s
negligence.” Yonce v. Smithkline Beecham Clinical Labs, Inc., 111
Md. App. 124, 139, 680 A.2d 569, 576 (1996) (quoting Stone v.
Chicago Title Ins. Co., 330 Md. 329, 337, 624 A.2d 496, 500
(1993)). The chain of causation remains unbroken if an intervening
occurrence “is one which might, in the natural and ordinary course
of things, be anticipated as not entirely improbable, and the
[initial tortfeasor’s] negligence is an essential link in the chain
. . .” Yonce, 111 Md. App. at 139, 680 A.2d at 577 (quoting State
ex rel. Schiller v. Hecht Co., 165 Md. 415, 421, 169 A. 311, 313
16
(1933)). Thus, the key issue in determining Western’s liability is
whether Sasser and Meininger’s illegal conduct was foreseeable to
Western.
To establish foreseeability, the plaintiff must present
facts showing that a person of ordinary intelligence, who
is equipped with the knowledge of the dangerous
condition, should realize the danger posed by that
condition. The test for foreseeability “encompasses what
a person of ordinary prudence should realize, not what he
or she actually did know or realize.” Stated
differently, a particular harm is foreseeable if a person
of ordinary prudence should realize that the condition of
which he or she has notice[] enhances the likelihood that
the harm will occur.
Hemmings v. Pellam Wood Ltd. Liab. Ltd. P’ship, 375 Md. 522, 541,
826 A.2d 443, 454 (2003) (quoting Brown v. Dermer, 357 Md. 344,
362, 744 A.2d 47, 57 (2000)).
This Court cannot conclude that Western should have foreseen
Sasser and Meininger’s violent conduct solely because of the
positive results of Meininger’s pre-employment drug screening. No
evidence exists in the record that Meininger previously had been
convicted of any crime related to drug use. Moreover, there is no
evidence that Meininger tested positive for drugs while employed by
Western before this incident occurred. We also note that neither
Sasser nor Meininger had a documented history of violent behavior.
In addition, no record exists of any coworkers or customers filing
a complaint regarding their behavior prior to this incident. Thus,
we cannot conclude that a reasonable person would have anticipated
such actions by Meininger based on the information known to
Western.
17
We also agree with the district court that proximate cause is
lacking due to Jordan’s failure to conclusively demonstrate that
Sasser and Meininger were under the influence of drugs at the time
of the incident. In order to successfully prove a nexus between
Western’s alleged negligence –- i.e., hiring Meininger after a
positive drug screening and failing to conduct follow-up testing –-
and Jordan’s injuries, Jordan would have to show that Meininger
acted while under the influence of drugs. We agree with the
district court that the evidence in the record –- (1) the fact that
Meininger tested positive for drugs seven days after the incident,
and (2) the fact that a jury found Meininger guilty of possessing
a controlled substance at the time of the incident –- is
insufficient to prove that he was actually under the influence of
drugs during the incident.
In briefs and during oral argument, Jordan’s counsel alluded
to a police report that states that the cab of the truck smelled of
burnt marijuana at the time of Sasser and Meininger’s arrest.
However, the parties did not include this police report in the
Joint Appendix, and we cannot assume that it exists for the purpose
of this decision. Thus, we have not considered that evidence in
our analysis.
Given the above conclusions, we find that no genuine issue of
material fact exists as to Jordan’s negligent hiring and
supervision claim, and that the district court appropriately
granted summary judgment in favor of Western.
18
III. Conclusion
For the reasons set forth above, the orders of the district
court dismissing Count VII of the complaint and granting summary
judgment to Western Distributing Company on Count VIII of the
complaint are
AFFIRMED.
19