Parmenter v. J & B Enterprises, Inc.
99 So. 3d 207
Miss. Ct. App.2012Background
- Parmenter and cousin ate at the McDonald’s in Holly Springs on Aug 11, 2000.
- Parmenter had a verbal altercation with cashier Kesha Jones in the lobby; witnesses note a racial slur or harsh words.
- Jones retrieved a spatula and struck Parmenter in the lobby.
- Parmenter filed suit on Sep 20, 2003 alleging tort claims and vicarious liability, including negligent hiring/training/supervision/security; Jones was not named a defendant.
- The circuit court granted summary judgment for McDonald’s on Dec 19, 2007, holding McDonald’s not liable as a master; Parmenter later obtained a directed verdict in favor of J&B Enterprises, which was affirmed on appeal.
- The court affirmed both the summary judgment for McDonald’s and the directed verdict for J&B Enterprises.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Respondeat superior liability for McDonald’s | Parmenter asserts McDonald’s controlled franchise operations. | McDonald’s did not exercise control over day-to-day franchise operations. | No genuine issue; not liable. |
| Respondeat superior liability for J&B Enterprises | Jones’s actions were within the franchise’s scope of employment. | Jones acted outside the scope of employment and training. | Directed verdict for J&B Enterprises upheld; no scope. |
| Negligent hiring and negligent training | Employer failed to hire/train appropriately. | No evidence of incompetence or failure to train; no liability. | Meritless; no triable issue. |
| Admission of Dr. Cooper as expert (PTSD) | Dr. Cooper should be allowed to testify about PTSD damages. | Dr. Cooper not qualified to diagnose PTSD or causation; unreliable. | Disqualification upheld; issue meritless. |
| Admission of Trudi Porter deposition | Porter’s deposition should be admitted as former testimony. | Porter was not properly designated or unavailable. | Exclusion proper; issue meritless. |
Key Cases Cited
- Favre v. Wal-Mart Stores, Inc., 820 So.2d 771 (Miss. Ct. App. 2002) (scope of employment analysis; control factors as master)
- Adams v. Cinemark USA, Inc., 831 So.2d 1156 (Miss. 2002) (employee’s tort not within scope; personal motive; not incidental)
- Holmes v. Campbell Props., Inc., 47 So.3d 721 (Miss. Ct. App. 2010) (summary judgment standard; burden on nonmovant)
- Allen v. Choice Hotels Int’l, 942 So.2d 817 (Miss. Ct. App. 2006) (control factors for master/servant under vicarious liability)
- Odier v. Sumrall, 353 So.2d 1370 (Miss. 1978) (control/means-and-ends test for master liability)
- Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250 (Miss. 1945) (scope of employment; incidental acts within employment)
- Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (Miss. 1931) (early master/servant factors)
- Black’s Law Dictionary (definition of notice), - (-) (used for definitional context on actual/constructive notice)