This appeal involves a personal injury action arising out of a shooting of appel-lee at appellant’s laundromat. The facts are set forth in
Johnson v. Weinberg,
I. Directed Verdict
Appellant contends there was no evidence at the second trial from which the jury could find that there was an employer/employee relationship between himself and Ms. Schneider, and thus between himself and Bоyd, and further that there was no evidence from which the jury could find the shooting occurred within the scope of Boyd’s employment. Appellant argues, therefore, that Judge Taylor erred in failing to direct a verdict in his favor at the close of appellee’s evidence and again at the close of all the evidence.
The same issues were submitted to the trial court in the first trial and to this court in the first appeal.
See Johnson I, supra,
when (1) the motion under consideration is substantially similar to the one already raised before, and considered by, the first court; (2) the first court’s ruling is “sufficiently ‘final’ and (3) the prior ruling is not “clearly erroneous in light of newly presented facts or a change in substantive law.”
Tompkins v. Washington Hospital Center,
A. Master/Servant Relationship
Appellant argues there were insufficient facts at the second trial to establish a jury question on his work relationship with Boyd. Since the law of the case doctrine is designed to “dispose of cases efficiently by discouraging ‘judge-shopping’ and multiple attempts to prevail on a single question,”
Tompkins, supra,
B. Scope of Employment
Appellant also argues Judge Taylor erred in failing to direct a verdict in his behalf on the ground that the shooting was not within Boyd’s scope of employment. He maintains the law of the case doctrine does not control because there has been a substantive change in the law as set forth in
Boykin v. District of Columbia,
The doctrine of
respondeat superior
is a doctrine of vicarious liability which imposes liability on employers for the torts committed by their employees within the sсope of their employment.
District of Columbia v. Coron,
In Johnson I, supra, the court stated: Boyd was employed to clean the laundromat. In addition to his regular duties, in the interest of his employer, when all of the washing machines were full he would remove clothes from the machines as they finished washing, so that empty machines would be available for other patrons. This service enhanced customer relations, but also placed Boyd in a position where it would be anticipated that problems of the nature described here could arise. If a patron was unable to locate his or her laundry, once having deposited it, it seems likely that Boyd would be confronted in an effort to resolve the matter. ‘Whether the assault ... was the outgrowth of a job-related controversy or simply a personal adventure of ... [Boyd’s], was a question for the jury.’
The questions for the jury were whether the shooting occurred in the course of Boyd’s performance of duty or after the job-related transaction was completed, and whether the shooting involved no more than Boyd's use of a “job-related situation”
*989
as an opportunity to pursue his own “personal adventure.” The holding in
Johnson I
that these are questions for the jury is not affected by
Boykin, supra,
In Boykin, a coordinator of an educational program for blind and deaf students took one of the students for a walk, ostensibly to train her to avoid walking into obstacles, and sexually assaulted her in the school cafeteria. Id. at 561. The coordinator was not performing any of his teaching responsibilities at any time during the encounter with the student. In observing that while “Boyd’s walks with the student afforded him the opportunity to pursue his personal adventure,” id. at 563 (emphasis in original), the court affirmed the grant of summary judgment:
[T]he sexual attack ... wаs unprovoked. It certainly was not a direct outgrowth of Boyd’s instructions or job assignment, nor was it an integral part of the school’s activities, interests or objectives. Boyd’s assault was in no degree committed to serve the school’s interest, but rather appears to have been done solely for the accomplishment of Boyd’s independent, malicious, mischievous and selfish purposes.
Id. at 562.
Boykin
relied on the principles of
respondeat superior
set forth in
Penn Central Transportation Co. v. Reddick, supra,
II. Jury Instruction: Scope of Employment
Appellant also contends Judge Taylor erred in instructing the jury that Boyd was acting within the scope of his employment if the shooting was either done, at least in *990 part, to serve or further the interests of the employer or was done as the outgrowth of a job-related controversy. Appellant had requested an instruction explaining that three elements had to be present fоr an intentional tort to be within the scope of employment: first, the tort must occur in a job where a confrontation with a customer or third party can be expected; second, the controversy or the assault must arise out of some provocation and some job-related argument or controversy; and third, the employee must be acting in furtherance or at least partially in the furtherance of the employer’s business. Judge Taylor declined to instruct on the second and third elements except in the alternative, commenting that Johnson I did not require it and that appellant had not objeсted to the instruction given at the first trial which did not include both elements.
As stated in Part I, supra, for an employer to be held vicariously liable for the intentional tort of a servant, the tor-tious act must occur within the scope of employment. The tort must be actuated, at least in part, by a purpose to further the master’s business 7 and not be unexpected in view of the servant’s duties. 8 The first criterion is often called “intent” or “purpose” and excludes from the scope of employment all actions committed “solely for [the servant’s] own purposes.” 9 The latter criterion is loosely called “foreseeability” and implies that the tortious act must be incidental to conduct the employer has authorized. 10
Judge Taylor addressed both criteria in her instructions to the jury. 11 The *991 judge properly instructed on foreseeability in part [2] of her instruction. Supra note 11. See Restatement (Second) of Agency §§ 228(l)(d), at 245 (1958). In part [la] of the instruction, the judge correctly instructed that the jury must find the servant’s tortious act was intended, at least in part, to further the master’s business. Supra note 11. The only issue is whether inclusion of alternative [lb] — that the shooting must be “the outgrowth of a job-related controversy” — permitted the jury to find liability based on a more attenuated relationship between the shooting and the master’s business than the relationship imрlied by the first formulation.
“[T]he trial court’s charge ‘is not to be tested in isolated segments’; the question ‘is whether the charge as a whole was fair and adequate.’ ”
Sinai v. Polinger Company,
The case law makes clear that the test for scope of employment is an objective one, based on all the facts and circumstances. As the law has evolved, the intent or purpose criterion has become broad enough to embrace an intentional tort arising out of any dispute that “was originally undertaken on the employer’s behalf.”
Internationаl Distributing Corp. v. American District Telegraph Co.,
Judge Taylor’s instructions appropriately provided alternative definitions of intent to serve the master, coupled with the necessary limitation of foreseeability. The first definition (part la) tracks the “intent” or “purpose” language traditionally used, and is literally correct. Because it is difficult, if not impossible, however, to believe shooting a customer could be intended to further the interest of the employer unless a robbery or a burglary is involved, the alternative, “job-related controversy” criterion (part lb) provided a useful clarification of the intent criterion for the instant case. It also indicated that the intent criterion focuses on the underlying dispute or controversy, not on the nature of the tort, and is broad enough to embrace any intentional tort arising out of a dispute that “was originally undertaken on the employer’s behalf.”
International Distributing Corp. v. American District Telegraph Co., supra,
Clearly, the dispute over аppellee’s shirts that led to the shooting in this case can be characterized as one that originally was undertaken on behalf of the employer, for whom Boyd tended the laundry machines and, consequently, dealt with customers. In this respect, the instant case is indistinguishable from
Lyon v. Carey
and
Dilli v. Johnson. Boykin
is distinguishable, since it was solely a “personal adventure,”
III. Denial of New Trial on Liability
Appellant further contends Judge Taylor erred in granting a new trial on damages alone because “the mitigating factors in the case were removed but the inflammatory aspects remained,” and the
*993
issues were too inseparable to permit a limited retrial. In considering a motion for a new trial, the trial judge must consider all the evidence and is not required to view the evidence in the light most favorable to the nonmoving party.
Rich v. District of Columbia,
The sole relevant case cited by appellant is a good example of a situation where liability and damages are too intertwined to permit a bifurcated trial. In
Munsey v. Safeway Stores, supra,
In contrast, appellee sought to prove only the extent of his injury from the gunshot, the amount of treatment required, and the curtailment of his income over his lifetime. Although proof of his injury involved proof of mental illness resulting from the shooting, the circumstances surrounding the shooting do not affect proof of this illness. Similarly, the number of drinks taken by appellee before entering the laundromat and the abusiveness of his conduct do not affect the damages whiсh resulted from the shooting. Since Judge Taylor’s ruling that the issues of liability and damages are not closely interwoven is within the range of permissible decisions in the reasoned exercise of her discretion,
see generally Johnson v. United States,
IV. Excessiveness of Verdict
Finally, appellant contends Judge Riley erred in denying his motion for a new trial on liability and damages because the verdict of two million dollars was excessive. He maintains that since Judge Taylor granted a new trial on damages when the verdict was $800,000, due to what she characterized as an excessive award, and (in appеllant’s view) the sole difference in proof was the addition of $35,000 of medical bills, a $2,000,000 verdict is surely excessive, and “a product of sympathy, inflamed emotions and prejudice.” He also argues the passion and prejudice were exacerbated because the second trial dealt only with damages taken out of context from the circumstances which led to the injury.
*994
The decision whether to grant a new trial because damages are excessive is entrusted to the sound discretion of the trial judge. The trial judge must determine whether the award indicates prejudice, passion or partiаlity or was based on oversight, mistake or consideration of an improper element.
Vassiliades v. Garfinckel’s,
Judge Riley found no indicatiоn of passion or prejudice in the course of the trial:
Plaintiff’s case was presented by able counsel at a very high level, with no attempt at undue eloquence or histrionics. All of the witnesses, including plaintiff, gave their testimony in a calm, deliberate fashion, without dramatization or obvious emotion.
The judge further concluded that the award was not excessive in view of the nature of appellee’s injuries, his age, the likely permanence of the injuries, their continuation for eight years after the shooting, the likelihood appellee will be in pain for the rest of his life, his severely reduced сapacity for manual work of any kind, and the drastic change in his personality. The record includes substantial evidence to support the judge’s findings, which are not clearly erroneous. D.C.Code § 17-305 (1981). In addition, the proof of damages at the two trials was different.
During the trial before Judge Taylor, appellee did not submit his hospital and medical bills. His witnesses on damages were limited to himself, his employer’s supervisor of finance management who testified about appellee’s time and attendance pay records at the Government Printing Office (GPO), and a general surgeon who testified about appellee’s medical condition after the shooting, the treatment which was required, and (although he was not a psychiatrist) about appellee’s psychiatric problems as a result of the incident. In granting a new trial on damages, Judge Taylor referred to the need for corroboration and the absence of “what [are] supposed to be rather large bills — that it would be appropriate to introduce ... since that was a matter of concern to the court in determining the propriety of the jury’s verdict.” At the new trial on damages before Judge Riley, appellee presented ten witnesses in addition to himself, as well as attendance, pay, earnings and medical records. The witnesses included his former and present supervisors at GPO who testified about pay and attendance records and about appellee’s potential for promotion or advancement during the balance of his employment, and an economist who calculated appellee’s lifetime stream of earnings and testified about his impaired earning capacity. The medical records described, more fully than previously, the nature of appellee’s mental illness and the course of treatment at George Washington University Medical Center. 14 We find no *995 abuse of discretion by Judge Riley in refusing to grant a new trial on all issues due to excessiveness of the second verdict.
Accordingly, the judgment is
Affirmed.
Notes
. By filing a timely appeal from Judge Riley’s order at the third trial, D.C.C.A. R. 4-11(1), now Rule 4 (effective Jan. 1, 1985), appellant has preserved the right to appeal on grounds of error by Judge Taylor at the second trial.
District of Columbia v. Davis,
. Appellant’s other claims of error are meritless. See infra notes 4, 6 & 13.
.
Giles v. Shell Oil Corporation,
. We find meritless appellant’s claim that reversible error occurred when Judge Taylor refused to give a requested instruction outlining the variоus factors the jury could consider in determining whether Ms. Schneider was an employee or an independent contractor. Judge Taylor instructed the jury:
An independent contractor is one who engages in independent employment and makes a contract to do a piece of work according to his own methods and without being subject to the control of the person who hires him, except as to the results of the work.
This instruction fully informed the jury of the relevant point of law albeit in a more general form than appellant requested.
Mark Keshishian & Sons
v.
Washington Square,
. Nor is the holding in
Johnson I
undermined by
Jordan v. Medley, supra,
The D.C. Court’s most recent case, Johnson [I], ... contains language that seems more compatible with an approach that would substitute foreseeability for intent to further the employer’s business; but that is arguably inconsistent with other language of the opinion and unquestionably inconsistent with the opinion’s strong reliance upon our decisions in Lyons v. Carey and International Distributing Corp. v. American District Telegraph Co., supra [186 U.S.App.D.C. 305 ,569 F.2d 136 (1977)]_ [U]nder D.C. law foreseeability must be combined with a purpose to further the employer's interest.
Id.
at 428,
. We find meritless appellant’s claims that Judge Taylor should not have allowed appellee’s mother and girlfriend to testify, and should have аllowed Bennett and Elizabeth Carrington to testify. Appellant was informed by letter dated December 13, 1982 from appellee’s counsel that appellee planned to call a number of persons as witnesses at the third trial, including appellee’s mother and girlfriend. Since the trial began in May 1983, appellant had approximately six months’ advance notice of these witnesses. Appellant does not claim any prejudice by virtue of the omission of these witnesses’ names in answers to his interrogatories. Nor does he allege that he could not obtain pertinent information, such as addressеs, about the witnesses. Thus, assuming the "informar letter disclosure failed to comply with Super.Ct.Civ.R. 26(f)(1), the violation was harmless since appellant had notice and suffered no prejudice. In contrast, appellant never notified appellee that he intended to call the Carringtons as witnesses, despite appellee’s request for such information in Interrogatory 25 requesting "the names and addresses of all persons known to you or your representatives not heretofore mentioned having any personal knowledge of material facts regarding the occurrence giving rise to this suit.”
.
Meyers
v.
National Detective Agency,
.
Penn Central Transportation Co. v. Reddick, supra,
.
Meyers, supra,
.
Jordan v. Medley, supra,
. The judge instructed the jury:
That next question, of course, is whether the wrongful act of Mr. Boyd, whom you have — we will assume for this purpose have just found was indirectly employed by Mr. Weinberg, whether the wrongful actions of Mr. Boyd were committed while Mr. Boyd was acting within the scope of his employment. Mr. Weinberg, of course, denied that Mr. Boyd was acting within the scope of his employment when he shot Mr. Johnson. Once again, therefore, you are the ones who must decide.
Now what do we mean by within the scope of his employment? It does not mean that the employer is responsible merely because the employee was employed generally by the employer. It doesn’t mean that he is responsible merely because the accident happened during working hours. It doesn’t mean that he is responsible merely because the incident took place on the premises, in the laundromat, or while the employee was doing things that might have involved Mr. Weinberg’s property or equipment. It means instead that thе employee must be serving or furthering a business interest of his employer when he takes the action in question. The question is whether the employee at the time of the incident had any business connected reason for his conduct.
In other words, to the extent relevant here an act is within the scope of employment [la] if it is done at least in part to serve or to further the interest of the employer or [lb] if it is the outgrowth of a job-related controversy. [2] But there is an additional element in this case and a very important one and we must deal with it. And that is the particular act in question here involved the intentional use of force. Where that is the case, where force is intentionally used by an employee against some other person, then the act is only considered to be within the scope of employment if the use of force was not unex-pectable by the employer.
In short, Mr. Weinberg would be liable for the harm done by Mr. Boyd to Mr. Johnson [1] if he shot Mr. Johnson in connection with his employment and [2] if the shooting was not unexpectable in view of Mr. Boyd’s duty, even though the shooting was not authorized. In deciding whether the shooting here occurred within the scope of Mr. Boyd’s employment you should look at the nature of his job, whether the shooting [la] occurred while Mr. Boyd was furthering Mr. Weinberg’s business *991 or [lb] grew out of a business-related controversy, as we have talked about those things; [1] whether the reasons for the shooting were personal in nature and wholly unrelated to Mr. Boyd's employment and [2] whether the shooting was totally unprovoked, the kind of act that Mr. Weinberg could not have expected. [Emphasis and numbering added.]
. In Boykin the court commented that Johnson I approaches the outer limits of the liability that may be imposed under respondeat superior because
the fact that the servant acts in an outrageous manner or inflicts a punishment out of all proportion to the necessities of his mastеr’s business is evidence indicating that the servant has departed from the scope of employment in performing the act.
Id. at 563 (quoting Restatement (Second) of Agency § 245 comment f (1950)). See supra note 5.
. The other cases cited by appellant,
Perfect Fit Industries
v.
Acme Quilting Co.,
. We find meritless appellant’s contention that admission into evidence of appellee’s medical expenses of $35,000 was a miscarriage of justice. Contrary to appellant’s position, the claim for medical expenses was not extinguished because Group Health Association, Inc., which had sub-rogated itself to appellee’s right, failed to file a timely notice of appeal.
Jacobs v. H.L. Rust Co.,