B. B. Walker Co. v. Burns International Security Services, Inc.

424 S.E.2d 172 (1993) 108 N.C. App. 562

B.B. WALKER COMPANY, Plaintiff,
v.
BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant.

No. 9119SC1146.

Court of Appeals of North Carolina.

January 5, 1993.

Smith Helms Mulliss & Moore by James A. Medford and Deborah L. Hayes, Greensboro, for plaintiff-appellant.

Petree Stockton & Robinson by Daniel R. Taylor, Jr. and Donald M. Nielsen, Winston-Salem, for defendant-appellee.

WELLS, Judge.

Plaintiff contends that the trial court committed reversible error in directing a verdict for defendant on the following claims: (1) a tort claim under the doctrine of respondeat superior; (2) a negligent hiring, supervision and retention claim; (3) a negligent breach of contract claim; and (4) a breach of contract claim.

The Standard of Review

"A motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff." Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1978). In determining whether a trial judge's ruling on defendant's motion for a directed verdict was proper, "plaintiffs' evidence must be taken as true and all the evidence must be considered in the light most favorable to the plaintiffs, giving plaintiffs the benefit of every reasonable inference." West v. King's Dept. Store, Inc., 321 N.C. 698, 365 S.E.2d 621 (1988). "A directed verdict is improper unless it appears, as a matter of law, that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish." Id. With these principles as our guide, we must determine whether the plaintiff's evidence, when considered in the light most favorable to plaintiff, was legally sufficient to withstand defendant's motion for a directed verdict as to any of its claims.

Respondeat Superior

Plaintiff first contends that the damages which plaintiff suffered as a consequence of the security guards' thefts were a legally compensable result of defendant's breach of a duty of care owed to the plaintiff by the defendant and that defendant should be liable for the guards' thefts under the doctrine of respondeat superior. Although plaintiff has not clearly enunciated its position on this point, it appears that plaintiff's respondeat superior argument is directed toward the conversion of plaintiff's property by defendant's employees. As a general rule, a principal will be liable for its agent's wrongful act under the doctrine of respondeat superior when the agent's act is (1) expressly authorized by the principal; (2) committed within the scope of the agent's employment and in furtherance of the principal's business— when the act comes within his implied authority; or (3) ratified by the principal. Medlin v. Bass, 327 N.C. 587, 398 S.E.2d 460 (1990). Thus, in order for plaintiff to recover under this claim, the evidence presented must sufficiently establish that the conduct of defendant and/or its agent falls within one of these categories.

Plaintiff does not contend that the acts of theft committed by security guards Freedle and Albright were either authorized or ratified by defendant. Rather, plaintiff argues that the security guards were acting within the scope of their employment and in furtherance of defendant's business when the criminal acts occurred because defendant placed the guards in a unique position to steal plaintiff's property by hiring and assigning them to provide security at plaintiff's facility. The guards were alone on plaintiff's property at night and had access to the goods which they stole by nature of their employment. Therefore, plaintiff argues, in essence, that the thefts committed by the two security guards were so very closely connected to their employment duties that they were able to steal the very items they were employed to protect. Plaintiff then concludes that such conduct was naturally incident to their employment. We disagree.

"To be within the scope of employment, an employee, at the time of the incident, must be acting in furtherance of the principal's business and for the purpose of accomplishing the duties of his employment." Troxler v. Charter Mandala Center, 89 N.C.App. 268, 365 S.E.2d 665, disc. review denied, 322 N.C. 838, 371 S.E.2d 284 (1988). "If an employee departs from that purpose to accomplish a purpose of his own, the principal is not [vicariously] liable." Id. Furthermore, this Court has stated that "intentional tortious acts are rarely considered to be within the scope of an employee's employment." Brown v. Burlington Industries, Inc., 93 N.C.App. 431, 378 S.E.2d 232, disc. review allowed, 325 N.C. 270, 384 S.E.2d 513, cert. granted, 325 N.C. 704, 387 S.E.2d 55 (1989), disc. review improvidently allowed, 326 N.C. 356, 388 S.E.2d 769 (1990).

The security guards' acts of theft were clearly contrary to, and not in furtherance of, the business of defendant which was to provide security for the facility and the property contained therein. In fact, the employees' thefts were indirectly contrary to the principal's business. The thefts resulted from the guards' personal motives; therefore, they cannot be deemed an act of their employer. Wegner v. Delicatessen, 270 N.C. 62, 153 S.E.2d 804 (1967). (Employer not answerable in tort for deliberate assault committed by employee.) Accordingly, the trial court properly concluded that plaintiff's evidence was not legally sufficient to go to the jury and support a verdict for plaintiff for conversion under the doctrine of respondeat superior.

Negligent Hiring, Supervision and Retention

Next, plaintiff contends that the evidence was legally sufficient to withstand defendant's motion for a directed verdict on plaintiff's claims of negligent hiring, supervision, and retention. We disagree.

As stated by our Supreme Court in Medlin v. Bass, supra, North Carolina recognizes a claim against an employer for the negligent hiring and retention of an employee where certain requirements are met. Drawing from Medlin and the cases cited and relied upon therein, it appears that in order to prevail on its claim in this case, plaintiff would have to prove (1) the wrongful act on which the claim is founded (the theft); (2) the incompetency of the guards to perform their duty, either by inherent unfitness for the job, or by showing such incompetence by previous conduct; and (3) either actual or constructive notice to defendant of the guards' unfitness or bad conduct.

There was no such showing in this case. While plaintiff alleged that defendant was negligent in hiring the guards, there was no showing that there was anything in the background of either man which should have put defendant on notice that either man was incompetent or otherwise unfit for the job. Plaintiff centers its argument on retention and supervision, contending that had the guards been properly or adequately "supervised," their thefts could have been prevented. This amounts to no more than speculation that because defendant failed to adequately guard the guards, it was negligent. We see no showing here that defendant should have reasonably foreseen that more supervision was required to prevent these deliberate criminal acts which were the cause of plaintiff's loss. This argument must be rejected.

Negligent Breach of Contract

For the reasons we have stated with respect to plaintiff's other negligence based claims, plaintiff's claim for negligent breach of contract was properly dismissed. Plaintiff was unable to show any wrongful act or omission in support of this claim for which defendant may be held liable.

Breach of Contract

In its last assignment of error, plaintiff contends that its evidence of a breach of contract was legally sufficient to withstand defendant's motion for a directed verdict. We disagree.

In its contract with plaintiff, defendant agreed to furnish security personnel for plaintiff's facility, but the contract contained the following limiting language.

LIMITS OF LIABILITY

Client acknowledges that Burns is not an insurer. Burns makes no warranty, express or otherwise, that the services furnished shall avert or prevent occurrences or consequences therefrom.... Client agrees that Burns shall be liable only for personal injury or property damage resulting directly from the sole negligence or the proportionate share of any concurrent negligence by Burns or its officers, agents or employees acting within the scope of their employment, and within the performance of services rendered hereunder.

Under this explicit language, defendant could not be held answerable for the deliberate criminal conduct of its employees, and this argument is therefore rejected.

Defendant's Cross Appeal

In its purported cross appeal defendant attempts to challenge the trial court's admission of an insurance certificate contained in plaintiff's exhibit # 1. We need not reach this question.

No error.

HEDRICK, C.J., and ARNOLD, J., concur.