Opinion
16-P-732
05-17-2017
Steven COTE v. FORD'S HOMETOWN SERVICES, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Steven Cote brought an action against Ford's Hometown Services, Inc. (Ford), the former employer of Michael Caccialino, alleging negligent hiring and supervision and negligent infliction of emotional distress. He now appeals from the summary judgment entered in favor of Ford. We affirm.
The complaint contained no counts against Caccialino.
Background. The following material facts are not in dispute. Caccialino was hired by Ford in 2010 as a sales representative and occasional technician. When he applied to work at Ford, he denied having any criminal convictions. Prior to September 1, 2010, Ford "had no knowledge of any violent, aggressive, or threatening behavior by [ ] Caccialino."
To the extent Cote included materials in the record appendix that were not part of the summary judgment record below, we do not consider them. See Ford's motion to strike and its supplemental record appendix.
On September 1, 2010, Cote was employed as a maintenance technician by Churchill Forge Properties (Churchill). Ford had a contract with Churchill to perform pest control and lawn maintenance for Churchill's Presidential Park Apartments, and on that date, Cote, Caccialino, and another Ford employee were working at the property. It was a hot and humid day. While Cote was using the toilet in the bathroom of the maintenance shed, Caccialino attempted to open the toilet door and then banged on it aggressively. He kept banging on the door, telling Cote that he was sick and had to use the bathroom, and to "open the fucking door or [he would] kick it down." Cote told Caccialino that he was having stomach problems, to go use another bathroom, and to "get the fuck out of the maintenance shed." He also locked the second lock on the toilet door for safety.
After yelling at Cote and threatening to "kick the fucking door open," Caccialino began kicking the door until it flew open. He then grabbed Cote, who was sitting on the toilet with his pants down to his ankles, pulled him off the toilet, held him by his arms, shook him, and would not let go. According to Cote, "[i]t looked like [Caccialino] was looking at my dick." Cote told Caccialino to "fucking let go of me," and "used his free hand to call his supervisor for help on his phone." Caccialino did not allow Cote to exit the bathroom until he heard Cote's supervisor enter the building.
Cote testified at his deposition that he felt scared for his life. He testified that since the incident, he has become a paranoid, nervous wreck who feels unsafe, has difficulty around people, and cannot work. He further testified that his marriage has broken apart; that he is unable to use bathrooms as before; and that he largely stays in his mother's cellar.
Discussion. 1. Standard of review. We review the grant of summary judgment de novo. Doe v. Boston Med. Center Corp., 88 Mass. App. Ct. 289, 290 (2015). The order will be affirmed if, when "viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). A judge may decide the issue of negligence by summary judgment "when no rational view of the evidence permits a finding of negligence." Roderick v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994).
2. Negligent hiring and supervision. To prove negligent hiring and supervision, Cote must show that Ford "owed [him] a legal duty, and that a breach of that duty proximately caused [his] injury." Petrell v. Shaw, 453 Mass. 377, 385 (2009). Ford's duty, if any, to protect Cote from Caccialino's assault extended only to those acts that were reasonably foreseeable. Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 203 (2003).
Cote presented no facts to suggest that at the time Caccialino was hired, he had a history of violent conduct or assaults which Ford could have discovered through reasonable investigation. Petrell, supra at 386. To the contrary, the summary judgment record reflects that when Ford asked Caccialino whether he had any misdemeanor or felony convictions, Caccialino stated that he did not. Nor did Cote present any evidence showing that Caccialino had exhibited aggressive or threatening behavior at any time between the date of his hiring and the assault. Where Cote presented nothing in opposition to Ford's summary judgment motion to show that Ford knew of Caccialino's temper prior to the assault or could reasonably foresee such an assault, the grant of summary judgment was appropriate. Id. at 385-386.
The plaintiff's claim that a genuine issue of material fact whether Ford provided Caccialino proper training on dealing with hot and humid weather is unavailing. Assault and battery was not a foreseeable result of any alleged negligent training that would give rise to a duty to Cote, or that was the proximate cause of Cote's injuries. See Foley v. Boston Hous. Authy., 407 Mass. 640, 645-646 (1990) ; Glick v. Prince Italian Foods ofSaugus, Inc., 25 Mass. App. Ct. 901, 902 (1987). For the reasons delineated in section 3, infra, Cote's claims likewise fail under a theory of respondeat superior.
3. Negligent infliction of emotional distress. To prevail on his claim for negligent infliction of emotional distress, Cote must prove "(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case." Sullivan v. Boston Gas Co., 414 Mass. 129, 132 (1993), quoting from Payton v. Abbott Labs, 386 Mass. 540, 557 (1982). Furthermore, where Cote proceeds under a theory of respondeat superior, he must demonstrate that Caccialino committed the tort within the scope of employment. See Lev v. Beverly Enterprises-Mass., Inc., 457 Mass. 234, 238 (2010). "The conduct of an agent is within the scope of employment if it is of the kind he is employed to perform, if it occurs substantially within the authorized time and space limits, and if it is motivated, at least in part, by a purpose to serve the employer." Ibid. (citations and quotations omitted).
Here, Cote essentially contends that Ford failed to adequately train and supervise Caccialino; that had Ford done so, Caccialino would have better monitored his water intake; that had he done so, he could have avoided stomach problems; that his stomach problems motivated him to "go to the bathroom as quickly as possible so he could go back to work"; that Cote occupied the bathroom and thus Caccialino "was upset because [ ] Cote was hindering his ability to return to work and finish his job"; and that as a result, Caccialino threatened, assaulted, and detained Cote. The claim is unavailing because the threats, physical assault, and detention of Cote were not tasks of the kind that Caccialino was hired to perform. See Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 405 (1990). In such circumstances, Ford is not vicariously liable for Caccialino's assault even though it occurred during work hours. See Petrell, supra at 384 and cases cited therein.
In addition, Caccialino's actions were not, as a matter of law, motivated by the purpose to serve Ford. See Fells Acres, supra at 405, n.13. In this regard, the summary judgment record does not support Cote's claim that Caccialino's subjective intent was to act "in what he thought were [Ford's] interests." Moreover, Caccialino's intent, although a potentially relevant factor, is not the critical consideration for our analysis here. See Miller v. Federated Dept. Stores, Inc., 364 Mass 340, 348 (1973) ("more important than the question of employee's subjective intent is whether the assault was committed as a result of the plaintiff's conduct which at the time of the assault was affecting the employee's ability to satisfactorily do his job").
Finally, none of the cases cited by Cote involved conduct by an employee that was similarly far removed from the scope of the employee's assigned work. Compare Rego v. Thomas Bros. Corp., 340 Mass. 334, 335 (1960) ; Miller, supra. To the contrary, the purported link between Caccialino's lack of training and his assault upon Cote for failing to abdicate the toilet is far too attenuated to sustain a cause of action against Ford for any form of negligence.
To the extent that we have not specifically addressed subsidiary arguments in the parties' briefs, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.