{¶ 2} Appellants' complaint alleging false imprisonment, intentional infliction of emotional distress, assault, and battery, stems from an incident that occurred on December 18, 2004, at the Bob Evans Restaurant located on Georgesville Square Drive. Defendant Patricia Carlisle ("Carlisle") was the Assistant Store Manager at the time. Carlisle had borrowed jewelry from fellow employee Midge Carr ("Carr"), to wear to a Christmas party. The jewelry included a tennis bracelet, diamond earrings, and a diamond ring. After noticing the jewelry was missing from the manager's office, Carlisle informed appellee William Pyles ("Pyles") of the circumstance. Both Carlisle and Pyles searched the office, but to no avail. Pyle proceeded to look in trash bins, including trash bags already placed in the outside dumpsters.
{¶ 3} Believing that an employee stole the jewelry, Carlisle called the police, and an officer from the Columbus Police Department arrived. After declining Carlisle's request to do a "strip search" of the employees, the officer took a report and left. Subsequently, Carlisle ordered a "strip search" of the employees and appeared to focus her attention on the female employees, believing that one of them had taken the jewelry for her own personal use.
{¶ 4} Carlisle was heard to say that no one was going to be permitted to leave the restaurant until the missing items were found. Appellants Watkins and Gahn went into the restroom together. Watkins testified at her deposition that Carlisle instructed her to unbutton her shirt and her bra, and shake the garments out. Further, Watkins explained that Carlisle told them to take off their pants, but Gahn refused and left the restroom. After Gahn left, Watkins pulled her pants down and dropped them to the bathroom floor.
{¶ 5} According to Gahn, she volunteered to be one of the first persons to be searched and entered the restroom with Watkins. Gahn testified that she asked Carlisle what to do, but Carlisle said nothing. Thereafter, Gahn asked Watkins what to do, and Watkins told her to unbutton her top. Gahn explained that she untucked both her under and over shirts, and shook them out. Thereafter, she and Watkins traded aprons and searched them. After searching the aprons, Gahn refused to do anything else and left the restroom to go home.
{¶ 6} Appellant Ridgeway testified that she entered the restroom when Watkins told her to go in next. According to Ridgeway, no one told her to take off any of her clothing, but she proceeded to take off her apron and shoes, unbutton her shirt, and shake out her shirt and bra. Ridgeway also unbuttoned her pants and shook them out, but did not take them off or pull them down.
{¶ 7} Appellant Tith testified that Carlisle asked her to go into the restroom. While Carlisle was not in the restroom with her, Carr was. Although not asked to take off any of her clothing, Tith removed her shirt, bra, pants, panties, and shoes. Tith explained that she felt compelled to "prove herself" because Carlisle and Carr were "pointing the finger at [her]." (Depo. at 56.)
{¶ 8} When Pyles returned from searching the outside dumpsters, Carlisle had finished her shift and left the premises. When he learned of what had happened, Pyles called Area Director Ron McIntyre to inform him of what had transpired. After an investigation, Carlisle was terminated for misconduct.
{¶ 9} Appellants filed their complaint on April 6, 2005. On January 23, 2006, appellees moved for summary judgment arguing that they are not liable for the intentional acts of Carlisle, and that appellants' claims for battery, assault, false imprisonment, and intentional infliction of emotional distress fail as a matter of law. By written decision rendered on March 13, 2006, the trial court granted judgment as a matter of law in favor of appellees as to all counts of the complaint. Judgment reflecting the trial court's decision was rendered on June 21, 2006.
{¶ 10} Appellants timely appealed, and bring the following two assignments of error for our review:
ASSIGNMENT OF ERROR NO. 1:
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS BY GRANTING SUMMARY JUDGMENT TO BOB EVANS FARMS, INC.
ASSIGNMENT OF ERROR NO. 2:
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS BY GRANTING SUMMARY JUDGMENT TO WILLIAM PYLES.
{¶ 11} Appellate review of summary judgment motions is de novo.Koos v. Cent. Ohio Cellular, Inc. (1994),
{¶ 12} Appellants' claims arise solely from Carlisle's actions, which, they argue, were committed within the course and scope of her employment. We begin by noting that appellants have failed to cite to any legal authority relative to this assignment of error. As such, they have not met their burden of affirmatively demonstrating error on appeal. App.R. 16(A)(7); State ex rel. Petro v. Gold,
{¶ 13} For an employer to be liable under the doctrine of respondeat superior, an employee's tortious act must be committed and, if an intentional tort, it must be calculated to facilitate or promote the employer's business or interest. Wynn v. Ohio Dept. of Job FamilyServs., Franklin App. No. 04AP-163,
{¶ 14} Applying this standard to the present case, we find that Carlisle's actions were not committed while she was within the scope of her employment. It is undisputed that the missing jewelry, which prompted Carlisle to act, was not the property of Bob Evans. Further, appellants' deposition testimonies establish that they did not perceive Carlisle's actions as either having to do with the operation of Bob Evans, or otherwise advancing its interests. (Ghan depo. at 83, 84; Ridgeway depo. at 66; Sok depo. at 62, 63; Watkins depo. at 76, 97.) Simply stated, there is no evidence in the record that Carlisle's actions were in any way designed to facilitate the business of, or resulted in a benefit to, Bob Evans. Instead, the only reasonable inference to be drawn is that Carlisle's actions were personal and self-serving.
{¶ 15} Further, the fact that Carlisle committed these acts while "on duty" is irrelevant, as her actions were so divergent from her employment that they severed any existent employment relationship. See, e.g., Groob, supra; Caruso v. State (2000),
{¶ 16} A case that lends support to our decision is Hester v. Church'sFried Chicken (1986),
[T]he assault in question followed an attempt by the tortfeasor to reprimand one of the employees under his supervision for what he apparently regarded as an instance of unsatisfactory job performance. It began harmlessly enough with several disparaging remarks about the employee's personal life, but ended only moments later in a fit of rage when the tortfeasor grabbed the employee by her collar, threw her to the ground and kicked her in the back.
Although it may be said on the state of this record that the tortfeasor had the authority to engage in limited forms of disciplinary action in accordance with the established policies of his employer, there is nothing to controvert the employer's evidence that such authority did not extend to the unprovoked use of physical violence against a fellow employee; nor is there any tenable factual basis to support a finding that the tortfeasor's actions apart from the initial reprimand were ratified by his employer. In our view, the only reasonable conclusion to be drawn from the evidence is that the tortfeasor simply lost his temper and was motivated to commit the assault solely out of feelings of personal ill will and malice harbored against his victim. * * *
Id. at 75. See, also, Jackson v. Saturn of Chapel Hill, Stark App. No. 2005-CA-00067,
{¶ 17} Given all the above, we find there is no genuine issue of material fact as to whether Carlisle's conduct was within the scope of her duties, whether her conduct was a reasonably foreseeable outgrowth of these duties, and/or whether her actions were calculated to facilitate or promote Bob Evans' business. Carlisle's search of appellants was an independent, self-serving act that was clearly outside the scope of her employment. As such, Bob Evans cannot be liable to appellants under the theory of respondeat superior. Accordingly, appellants' first assignment of error is overruled.
{¶ 18} In their second assignment of error, appellants argue that the trial court erred in granting summary judgment to Pyles on appellants' claims for assault,3 false imprisonment,4 and intentional infliction of emotional distress.5 We disagree. It is undisputed that Pyles was not physically present while Carlisle was conducting her search of appellants, but, instead, was looking outside in the garbage dumpsters for the missing jewelry. Appellants do not assert that Pyles had notice of Carlisle's decision to search appellants, nor do they assert that he was notified about the searches while they were taking place. In fact, the record discloses that Pyles was not informed about Carlisle's actions until after she concluded hersearch of appellants. Although appellants' complaint describes Pyles as, essentially, acting in concert with Carlisle, the evidence produced does not, at a minimum, support these allegations.
{¶ 19} Based on the foregoing, we conclude that the trial court properly found that there were no genuine issues of material fact regarding appellants' claims for assault, false imprisonment, and intentional infliction of emotional distress, and that Pyles was entitled to judgment as a matter of law as to these claims. Accordingly, appellants' second assignment of error is overruled.
{¶ 20} For these reasons, we conclude that there is no genuine issue of material fact, and that appellees are entitled to judgment as a matter of law. Appellants' two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.