Opinion
C.A. No. 04C-09-219MJB.
Submitted: February 27, 2007.
Decided: April 19, 2007.
Upon Defendant's Motion for Summary Judgment, DENIED.
Lois J. Dawson, Esquire, Law Offices of Lois J. Dawson, Wilmington, Delaware, Attorney for Plaintiff, Tony L. Matthews.
Robert J. Leoni, Esquire, Morgan, Shelsby Leoni, Stanton, Delaware, Attorney for Defendant, Pamela S. Booth.
Richard D. Abrams, Esquire, Heckler and Frabrizzio, PA, Wilmington, Delaware, Attorney for Defendant, Food Lion L.L.C.
OPINION AND ORDER
INTRODUCTION
This personal injury action arises out of injuries sustained by Plaintiff, Tony Matthews ("Matthews") when he fell off of the hood of a vehicle driven by Defendant, Pamela Booth ("Booth"). Plaintiff asserts negligence claims against Booth and negligent supervision/retention claims against Booth's employer, Food Lion, L.L.C. ("Food Lion"). On February 1, 2007, Food Lion filed a Motion for Summary Judgment on two grounds: first, that the claims against it are barred by the Workers' Compensation statute, and second, that the negligent supervision claims should be dismissed because Food Lion had no knowledge of Booth's actions. The Court held a hearing on February 20, 2007, during which the parties were instructed to file additional submissions, which were filed on February 27, 2007. For the reasons that follow, the Motion for Summary Judgment is DENIED.
FACTUAL BACKGROUND
The facts, taken in a light most favorable to the non-moving party, are as follows. At the time of the incident, Plaintiff was eighteen years old and was an employee of Food Lion under the direct supervision of Booth, who was the night manager of the store. Plaintiff had a personal relationship with Booth at the time of the incident and was seeing her at least once or twice a week after work. It is alleged that Booth also had relationships with other young men who worked at the Food Lion, and that Booth often supplied alcoholic beverages to Plaintiff and his under-age friends and co-workers.
The Food Lion Corporate Policy Manual specifically prohibits dating between management and associates in the same store. Where such a relationship exists, the corporate policy requires a transfer of one of the employees to another store. There are also procedures set forth for dealing with incidents of sexual harassment. Furthermore, the policy manual specifically prohibits loitering and consumption of alcohol on "property owned or leased" by Food Lion. Plaintiff alleges that Food Lion management was aware of Booth's inappropriate behavior and interactions with other employees and failed to take the necessary steps, pursuant to its own policy manual, to address the improprieties and breaches of the code of conduct required of all its employees.
See Food Lion Corporate Policy Manual, Pl. Resp. Br., D.I. 36, Ex. B.
Id.
Id.
Id.
On September 24, 2002, after their shifts had ended and the store had closed, Plaintiff and Booth remained in the parking lot. It is not clear from the record whether they were drinking that night. At approximately 12:10 a.m., as Plaintiff was riding on top of the hood of a vehicle operated by Booth, in the parking lot of Food Lion, he fell off and was injured. As a result, Plaintiff has sustained permanent injuries to his neck, brain, head, shoulders, back, and legs. Due to the brain damage and loss of memory, Plaintiff does not have any recollection of the events that led to his injuries. On September 24, 2004, Plaintiff filed this action against Booth and Food Lion. Subsequently, Food Lion filed the instant motion seeking summary judgment.
On the night of September 24, 2002, the Food Lion store closed at midnight.
STANDARD OF REVIEW
The standard for granting summary judgment is high. Summary judgment may be granted where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. "In determining whether there is a genuine issue of material fact, the evidence must be viewed in a light most favorable to the non-moving party." "When taking all of the facts in a light most favorable to the non-moving party, if there remains a genuine issue of material fact requiring trial, summary judgment may not be granted."
Mumford Miller Concrete, Inc. v. Burns, 682 A.2d 627 (Del. 1996).
Super.Ct.Civ.R. 56(c).
Muggleworth v. Fierro, 877 A.2d 81, 83-84 (Del.Super. 2005).
Gutridge v. Iffland, 889 A.2d 283 (Del. 2005).
CONTENTIONS OF THE PARTIES
In support of its Motion for Summary Judgment, Food Lion first argues that the claims against it are barred by the Workers' Compensation statute. Food Lion claims the injuries arise out of, and were sustained in the course of, employment, because the incident occurred at the place of employment. Food Lion contends that although the parking lot where the incident occurred is not owned by Food Lion, it was intended for the use of its customers and employees. Therefore, Food Lion contends, the lot should be considered Food Lion's property for the purposes of the Workers' Compensation statute. Furthermore, Food Lion contends the fact that the injuries occurred after working hours (12:10 a.m.) does not change the result, because it was within a reasonable time after the hours of employment.Food Lion next argues that Plaintiff's negligent supervision claims must fail on several grounds. First, Food Lion contends there is no precedent for permitting an employee to sue an employer for negligent supervision. Second, Food Lion argues that Plaintiff has not set forth any specific evidence that Food Lion knew, or should have known, that Ms. Booth was incompetent or dangerous, or that her conduct could foreseeably result in the injury alleged by Plaintiff. Finally, Food Lion maintains that if neither Plaintiff's injury nor Booth's actions took place in the course and scope of employment, the negligent supervision claims must fail.
Plaintiff argues that this is not a Workers' Compensation claim because the injuries did not occur in the course of business; that Booth was acting with the primary motive to benefit herself, and Food Lion received no benefit from her interactions of a personal nature with Plaintiff and other employees. Furthermore, Plaintiff notes that Food Lion's own assertions counter its Workers' Compensation arguments. Specifically, Plaintiff refers to submissions, in which Food Lion asserts that "there was no nexus between any acts of Ms. Booth and Food Lion. Ms. Booth was not the agent, servant or employee of Food Lion at or about the time of the accident," that "Food Lion does not believe there was any activity by its employee which occurred during the course and scope of employment," and that "the store was closed and Ms. Booth and Mr. Matthews were not performing any task within the scope of their employment . . . they were not on property owned by Food Lion."
Def. Mot. for Summ. J., D.I. 11.
Def. Answ. Interrogs. #11.
Def. Answ. Interrogs. #15.
With regard to the negligent supervision claims, Plaintiff argues that the issue is not whether Food Lion had a duty to protect Plaintiff, but whether it failed to make proper regulations, whether it employed improper persons involving risk of harm to others, and whether it failed to properly supervise its employee's activities. Plaintiff contends Food Lion was negligent in that it knew or should have known that the supervisor it employed was a "predator to the young boys," and yet failed to properly supervise or terminate her employment, allowing her to continue to harm the young boys.
ANALYSIS
Whether the negligent supervision claim is barred by the Workers' Compensation Statute
The Workers' Compensation statute provides the exclusive remedy for claimants for work-related injuries. It provides:
Every employer and employee, adult and minor, except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies. (emphasis added).
The requirements "arising out of" and "in the course of" employment are two separate requirements, both of which must be met for Workers' Compensation to be available under the statute. As used in the statute, the term "arising out of" refers to origin and cause of injury and the term "in the course of" refers to the time, place and circumstances of the accident. "In determining whether injury arises out of and in the course of employment, the relation of the accident to the service is the essential point of inquiry, and the question is whether the employer exposed the employee to the risk." Thus, service to the employer must at least be a concurrent cause of the injury.
19 Del.C. § 2301(15); Stevens v. State, 802 A.2d 939 (Del.Super. 2002).
19 Del.C. § 2304; Barnes v. Panaro, 238 A.2d 608 (Del. 1968).
Rev. Code 1935, § 6072, 6115; Children's Bureau of Delaware v. Nissen, 29 A.2d 603, 607 (Del. 1942).
Id.
In the present case, Plaintiff's injuries did not arise out of, or in the course of, employment. Although, Plaintiff was injured on premises under the control of Food Lion, neither Plaintiff nor Booth was engaged in a work-related activity at the time of the incident. Food Lion did not receive a benefit from Booth and Plaintiff's activities in the parking lot. Plaintiff's shift had ended, but he remained on the premises and for no other reason but his own personal benefit. As stated above, Food Lion's policy manual expressly prohibits this type of loitering on store premises. The Court finds no nexus between the actions of Booth and Plaintiff that led to these injuries and the scope of their employment at Food Lion. Therefore, the negligent supervision claims are not barred by the Workers' Compensation law.
Food Lion Corporate Policy Manual, Pl. Resp. Br., D.I. 36, Ex. B.
Negligent Supervision claims
Restatement of Agency (Second) § 213 states:
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders of [sic] in failing to make proper regulations; or
(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others; or
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control. (emphasis added).
A negligent supervision claim is based upon the employer's negligence in failing to exercise due care to protect third parties from the foreseeable tortious acts of an employee. An employer is liable for negligent hiring or supervision where the employer is negligent in giving improper or ambiguous orders or in failing to make proper regulations, or in the employment of improper persons involving risk of harm to others, or in the supervision of the employee's activity.
Rausch v. Pocatello Lumber Co., Inc., 14 P.3d 1074 (Idaho Ct.App. 2000).
Simms v. Christina School District, 2004 WL 344015 (Del.Super.).
The Restatement places a duty to control the conduct of employees in certain circumstances even where the action is outside the scope of employment:
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
A) the servant is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or is using a chattel of the master, and
B) the master knows or has reason to know that he has the ability to control his servant, and knows or should know of the necessity and opportunity for exercising such control.
Restatement 2 nd Torts, § 317.
While the Court is not aware of any Delaware cases in which a claim of negligent supervision has been raised by an employee against the employer, other jurisdictions have recognized the tort of negligent supervision where such a claim was asserted by an injured employee. In allowing such a claim to move forward, the deciding factor has been whether the employer had or should have had knowledge of the necessity to exercise control over its employee. Thus, existence of duty under a negligent hiring/supervision theory depends upon foreseeability, that is, whether the risk of harm from the dangerous employee to a person such as plaintiff was reasonably foreseeable as a result of the employment. Under the negligent supervision theory, therefore, an employer may be held liable for acts beyond the scope of employment, where it has prior knowledge of the dangerous tendencies of its employee, thereby making injury to third parties foreseeable.
See Waffle House, Inc. v. Williams, 2007 WL 290808 (Tex.App.); Rausch v. Pocatello Lumber Co., Inc., 14 P.3d 1074 (Id. Ct. App. 2000).
Janssen v. American Hawaii Cruises, Inc., 731 P.2d 163 (Haw. 1987).
Does 1-9 v. Compcare, Inc., 763 P.2d 1237 (Wash.Ct.App. 1988).
In cases that have addressed the issue of foreseeability of harm in the context of negligent supervision claims, the courts have found foreseeability where there was specific evidence of an employer's awareness and knowledge. For instance, in Waffle House, Inc. v. Williams, where the plaintiff, a Waffle House waitress, was repeatedly sexually harassed by a co-worker, there was undisputed evidence that the restaurant managers were informed about the situation and failed to take the necessary steps in accordance with the policy manual.
2007 WL 290808 (Tex.App.).
In Rausch v. Pocatello Lumber Co., Inc., the plaintiff was injured when Sargeant, an employee of the defendant, Wall2Wall, pulled a chair out from under the plaintiff as he started to sit. The evidence established there had been other instances of similar "horseplay" by the employee, about which plaintiff had made several complaints to the manager. At trial, the manager acknowledged that the employee had previously exhibited the same behavior and that he expected it would eventually result in injury. The Rausch court stated that "an employer's duty of care requires that an employer who knows of an employee's dangerous propensities control the employee so he or she will not injure third parties. Thus, in the present case, Rausch was entitled to have the jury decide whether Wall2Wall breached a duty to Rausch because Wall2Wall knew of Sargeant's propensity to engage in rough and dangerous horseplay and failed to exercise due care in supervising Sargeant so as to prevent him from injuring Rausch."
14 P.3d 1074 (Id. Ct. App. 2000).
Id.
In the present case, while Plaintiff alleges that Food Lion had knowledge of Booth's alleged inappropriate interaction with the young employees, no specific, undisputed evidence of such knowledge is offered. Plaintiff relies on the deposition of Christopher Rust ("Rust") who was Plaintiff's co-worker at the time of the incident. When questioned about Food Lion management's awareness of Booth's interaction with Plaintiff and other employees, Rust stated "I would not say that they weren't aware of it . . . they knew we were drinking, they just couldn't prove that it was our stuff. They knew we were getting the alcohol from somewhere, and they knew that a lot of times Pam and Tony and myself and Jenny would all sit in the parking lot. Now whether they could put two and two together to realize that they were giving us the alcohol or they were bringing it from home or what, I don't know." Notably, Food Lion has neither admitted nor denied the allegation that its store managers were aware of the situation.
See Pl. Resp. Br., D.I. 36, Depo. of Christopher Rust, at 68.
As stated above, to decide whether Food Lion had a duty to Plaintiff in this case, the Court must first determine whether the injury was a foreseeable one. To make this determination, the Court must decide whether Food Lion in fact had knowledge, or should have had knowledge, of the risk of harm, if any, that Booth posed to other employees including Plaintiff. At this juncture, the Court cannot conclusively make that determination because there are genuine issues of material fact in dispute as to the extent of Food Lion's awareness of Booth's involvement with Plaintiff. Therefore, the Court cannot dispose of the claims on a summary judgment motion.
CONCLUSION
For the foregoing reasons, the Court finds that the negligent supervision claims are not barred by Workers' Compensation, as the injuries allegedly suffered by Plaintiff did not arise out of, or in the course of, Plaintiff's employment. Furthermore, at this stage, based on the record before it, the Court cannot conclusively determine whether Plaintiff's injuries were the result of a foreseeable harm and whether Food Lion owed a duty to protect Plaintiff from that harm. Therefore, the Court finds that the
12 factual disputes in this case bar summary judgment. Accordingly, Defendant's Motion for Summary Judgment is DENIED. IT IS SO ORDERED. 13