Roderick Mayberry worked at a Burger King restaurant and held the position of “team leader.” As team leader, Mayberry was responsible for ensuring “good customer service” and supervising his co-workers. When Robin Reynolds, a customer, complained to a cashier about service in the restaurant and demanded a refund of her money, Mayberry, as team leader, intervened to resolve the complaint. The exchange between Mayberry and Reynolds became heated and ultimately culminated in Mayberry intentionally striking a stack of trays with Ids fist, causing them to hit Reynolds in the face. Reynolds brought an action against the restaurant’s operator, L & L Management, Inc. (hereinafter “L & L”), under theories of respondeat superior and negligent hiring, retention and supervision. The trial court granted L & L’s motion for summary judgment. This appeal followed.
1. Reynolds argues that the trial court erred in granting summary judgment to L & L because genuine issues of material fact remain regarding whether Mayberry was acting within the scope of his employment when the alleged assault occurred. We agree and reverse.
The record reveals that after Reynolds ordered and paid for her food, she was asked to wait as several other customers who placed their orders after her were served. Believing that the employees had decided not to serve her, Reynolds demanded that the cashier refund her money. Mayberry asked Reynolds what the problem was, and she responded that she wanted her money back because she was not being served. The evidence conflicts as to what transpired next.
Mayberry deposed that his job as team leader involved attempting to satisfy customers. He first noticed Reynolds because “she was making a commotion about her order. She was complaining.” May-berry went to talk to her because “it was [his] position as team leader” to do so. He said he apologized to Reynolds for the delay and refunded her money. Mayberry then turned and started to walk away, thinking he had resolved the customer’s complaint. He had taken “maybe two steps” when Reynolds said: “You’re the SOB that broke my son’s nose.” According to Mayberry, Reynolds began cursing and pointing her finger in his face, at which point he asked her to leave the store, then pounded the trays, said he did not have to “put up with this sh-t,” and started walking out. As he walked out, the manager on duty asked him what was wrong, to which Mayberry replied: “Your customer is up there. Go ask her what’s wrong.” May-berry agreed with defense counsel’s statement that the whole incident started when Reynolds called him “the SOB who broke [her] son’s nose.” Mayberry admitted that had he not been team leader, he might not have had the conversation and confrontation with Reynolds.
“ ‘[T]he master is liable for the wilful torts of his servant acting in the prosecution and within the scope of the master’s business, and this is true even though the servant, at the time of the commission of such tort[,] may evidence anger, malice, or ill will.’ ”
Rogers v. Fred R. Hiller Co.,
Viewing the evidence in favor of Reynolds as respondent to May-berry’s motion for summary judgment, and giving her the benefit of every doubt, we cannot say that, as a matter of law,. Mayberry’s assault on Reynolds was a purely personal act. Indeed, there was evidence that the tort was committed within the scope of the actual transaction of the restaurant’s business. Mayberry was performing the type of work for which he was hired, attempting to resolve a customer’s complaint about the restaurant, when the confrontation between the two started. By Reynolds’ account, Mayberry began “hollering” and “cursing” when she complained about the service and demanded a refund. In fact, by Mayberry’s own admission, a commotion had begun about the service before Reynolds made any comment about the school incident. Moreover, evidence that Mayberry asked Reynolds to leave the restaurant after she made the comment about her son, that Mayberry said Reynolds was now the manager’s customer after he struck the trays, and that Reynolds told Mayberry that she would leave when she got her money back, but did not get the refund before she was assaulted, suggests that Mayberry and Reynolds were still acting as employee/team leader and customer at the time of the incident.
The cases relied upon by L & L as requiring a contrary result are distinguishable. None of those cases involves the uninterrupted escalation of an argument between a customer and an employee performing one of the duties for which he is employed (i.e., attempting to resolve a customer complaint about the business). See
Worstell Parking v. Aisida,
2. As to Reynolds’ claims based on other theories, however, we find no remaining genuine issues of material fact.
(a) L & L is not liable under a ratification theory based on evidence that it retained Reynolds’ money. For ratification to occur, the principal must accept and retain the benefits of the unauthorized act. See
Hendrix v. First Nat. Bank of Savannah,
(b) Summary judgment for L & L was also authorized as to Reynolds’ negligent hiring and retention claim. Reynolds’ assertion that Mayberry was in jail on apparently unrelated charges
after
this incident, a co-worker’s testimony
after
the assault that she was afraid to testify on deposition against Mayberry because he might “jump on” her, and Reynolds’ general comment on deposition that the restaurant was “one of the worst in Roswell” are not evidence that L & L knew or should have known of Mayberry’s alleged violent propensities
before
the assault at issue occurred. See generally
Diaconescu v. Hettler,
(c) No triable issue was presented based on the theory that L & L negligently supervised Mayberry. Reynolds has pointed to no evidence supporting her claim that the assistant manager who was in the kitchen area preparing hamburgers could have prevented the assault at the front counter. The assistant manager deposed that he heard Mayberry apologize to Reynolds about the wait, at which point he heard Reynolds ask Mayberry if he was “the m-f that busted” her son’s nose and then fuss at Mayberry. The assistant manager testified that “then when I came around I heard trays.” There was no evidence that he should have arrived at the front counter sooner than he did or that had he done so, he could have prevented the assault. Indeed, Reynolds testified that Mayberry’s act of hitting the trays was “totally unanticipated,” that she “did not expect it” and “did not even have time to react.” Summary judgment for L & L was authorized as to this claim.
Judgment affirmed in part and reversed in part.