Appeal by defendants M, M & R, Inc., individually, and M, M &
R, Inc., d/b/a The Sports Pad Complex, from an order entered 25
September 2002 and from judgment entered 26 November 2002 by Judge
Clifton W. Everett, Jr. in Superior Court, Pitt County. Heard in
the Court of Appeals 1 April 2004.
Law Offices of Frank A. Cassiano, Jr., by Frank A. Cassiano,
Jr., for plaintiff-appellee.
The Robinson Law firm, by Leslie S. Robinson, for defendants-
appellants.
McGEE, Judge.
Steven Lee Wallace (plaintiff) filed a complaint on 19
September 2000 against M, M & R, Inc., individually; M, M, & R,
Inc., d/b/a The Sports Pad Complex; Joseph Mark Saieed (Saieed),
Adam Thomas Redfield (Redfield), Jon Ryan Whaley (Whaley), and
Roger Dale Southard, Jr. (Southard), alleging that M, M & R, Inc.,
individually, and M, M & R, Inc., d/b/a The Sports Pad Complex
(defendants) failed to provide safe and secure premises and that
defendants negligently hired and trained their security staff.
Defendants filed an answer on 23 October 2000. At trial, a jury
determined defendants were liable to plaintiff in the amount of
$35,000 for compensatory damages and $210,000 for punitive damages.
Defendants moved for judgment notwithstanding the verdict on
7 June 2002. The trial court denied defendants' motion on 25
September 2002. Defendants M, M & R, Inc., individually, and M,
M & R, Inc., d/b/a/ The Sports Pad Complex, appeal.
The evidence at trial tended to show that plaintiff was
injured on the evening of 5 February 2000 while he was a patron at
a nightclub owned and operated by defendants. Plaintiff and Danny
Elwell (Elwell) were sitting at the nightclub's bar when they saw
Whaley, one of defendants' employees, who was working that evening
as a bouncer. Whaley had been struck on the head with a beer
bottle at the nightclub a week earlier. January Wright (Wright),the bartender on duty on the evening of 5 February, told Whaley she
heard plaintiff and Elwell discussing the earlier assault. Whaley
radioed Southard, the operations manager for the Sports Pad, and
told him that the people who had assaulted him were reportedly in
the nightclub. Southard sent Whaley to take a closer look to try
to determine if plaintiff and Elwell were the individuals who had
assaulted Whaley. Whaley was unsure whether plaintiff and Elwell
were the assailants, so Southard sent other employees who had been
present on the night of the assault to attempt to determine whether
plaintiff and Elwell were the parties responsible for the assault.
Two employees told Southard they believed that plaintiff and Elwell
had committed the attack on Whaley. Plaintiff testified that he
was not at the nightclub the night Whaley was assaulted.
Southard decided that plaintiff and Elwell should be removed
from the nightclub. Southard gathered several on-duty employees to
inform them of his plan. Whaley testified that Southard asked
Redfield, an employee who was allegedly off duty that night, to
assist in removing plaintiff and Elwell from the nightclub.
Southard and the employees divided into two groups of three
bouncers each and approached plaintiff and Elwell at the bar. They
formed a semi-circle around plaintiff and Elwell, told plaintiff
and Elwell to leave the premises, and took away their drinks. As
plaintiff and Elwell rose to leave, Redfield punched plaintiff in
the head. Whaley then struck plaintiff's head on the other side.
Plaintiff fell to the floor and was punched and kicked repeatedly
by Redfield, Whaley, and the other on-duty bouncers. Whaley
stomped on plaintiff's head while plaintiff was on the floor. Asplaintiff was being beaten, two bouncers dragged Elwell outside.
Southard testified that no one made an effort to restrain Redfield,
the off-duty employee, from participating in the attack. As a
result of the beating, plaintiff was rendered "unconscious and
unresponsive[.]" Furthermore, plaintiff was bleeding from his
right ear, was having trouble breathing, and sounded as if he was
aspirating. After the beating, the bouncers then allegedly slapped
plaintiff's face while they dragged plaintiff's unconscious body
across the floor.
The police arrived shortly after the beating ended. Plaintiff
was taken to the hospital where he remained until 10 February 2000.
Plaintiff suffered some hearing loss, as well as vertigo, extreme
panic attacks, and anxiety.
Prior to the events of 5 February 2000, testimony indicated
that Saieed, defendants' president and operator, was aware that
Whaley had a past history of violence against bar patrons. In
fact, Whaley had been dismissed once due to an incident involving
excessive force but was subsequently rehired. Southard also
testified that he was aware that Redfield had used excessive force
against a bar patron in the past.
[1] Defendants argue that the trial court erred by denying
defendants' motions for directed verdict and defendants' motion for
judgment notwithstanding the verdict. For the reasons below, we
disagree. "The test for determining whether a motion for directed
verdict is supported by the evidence is identical to that applied
when ruling on a motion for judgment notwithstanding the verdict."
Martishius v. Carolco Studios,
Inc.,
355 N.C. 465, 473, 562 S.E.2d887, 892 (2002). "[T]he trial court must consider the evidence in
the light most favorable to the nonmoving party, giving [the
nonmoving party] the benefit of all reasonable inferences to be
drawn therefrom and resolving all conflicts in the evidence in [the
nonmoving party's] favor."
Id.
(quoting
Taylor v. Walker, 320 N.C.
729, 733-34, 360 S.E.2d 796, 799 (1987)). A motion should be
granted only when the evidence is insufficient to support a verdict
in the nonmoving party's favor.
Dockery v. Hocutt, 357 N.C. 210,
217, 581 S.E.2d 431, 436 (2003). A motion for directed verdict or
judgment notwithstanding the verdict should be denied if the trial
court finds there is "more than a scintilla of evidence supporting
each element of the plaintiff's claim[.]"
Hutelmyer v. Cox, 133
N.C. App. 364, 369, 514 S.E.2d 554, 558,
disc. review denied, 351
N.C. 104, 541 S.E.2d 146 (1999).
"When there is a dispute as to what the employee was actually
doing at the time the tort was committed, all doubt must be
resolved in favor of liability and the facts must be determined by
the jury."
Edwards v. Akion, 52 N.C. App. 688, 698, 279 S.E.2d
894, 900,
aff'd, 304 N.C. 585, 284 S.E.2d 518 (1981). Furthermore,
"[w]here the employee's actions conceivably are within the scope of
employment and in furtherance of the employer's business, the
question is one for the jury."
Medlin v. Bass, 327 N.C. 587, 593,
398 S.E.2d 460, 463 (1990).
On the issue of vicarious liability for the act of an
employee, our Supreme Court has stated:
If the servant was engaged in performing the
duties of his employment at the time he did
the wrongful act which caused the injury, the
employer is not absolved from liability byreason of the fact that the employee was also
motivated by malice or ill will toward the
person injured, or even by the fact that the
employer had expressly forbidden him to commit
such act.
Wegner v. Delicatessen, 270 N.C. 62, 66, 153 S.E.2d 804, 807-08
(1967). In
Wegner, an employee at the defendant's restaurant
slammed a glass down on the plaintiff's table. The plaintiff told
the employee that he did not think his actions were "too funny."
Id.
at 64, 153 S.E.2d at 806.
The employee left and immediately
returned to the plaintiff's table and
threatened to cut the
plaintiff's eyes out with a fork. As the plaintiff attempted to
leave the restaurant, the employee, who had been restrained by a
fellow employee, broke away and struck the plaintiff.
Id. Our
Supreme Court held that, "[w]hatever the source of his animosity
toward the plaintiff may have been, he did not strike the plaintiff
as a means or method of performing his duties as [an employee]."
Id. at 68, 153 S.E.2d at 809. However, our Supreme Court also
noted a different situation would have arisen had the glass that
the employee smashed on the plaintiff's table broken and injured
the plaintiff. In such a case, "the employee would have been
performing an act which he was employed to do and his negligent or
improper method of doing it would have been the act of his employer
in the contemplation of the law."
Id.
The facts of the present case align analogously with our
Supreme Court's hypothetical scenario. In the case before our
Court, the facts indicate that a jury could reasonably find that
the bouncers were acting
within the scope of their employment at
the time of the incident. Southard, the operations manager, firstsent Whaley, and then two more employees, to check on plaintiff and
Elwell. When the employees expressed some assurance that plaintiff
and Elwell were the patrons who had attacked Whaley, Southard
rounded up the bouncers. An organized plan was developed. Two
flanks of three bouncers each approached plaintiff and Elwell with
the purported purpose of removing them from the premises. The
police had been notified, but instead of awaiting their arrival,
Southard and the bouncers decided to approach plaintiff and Elwell.
Such an action, taken as a group decision in consultation with
Southard, the manager, is in compliance with the job description of
a bouncer at a bar. Such an action is, as
Wegner instructs,
"performing an act which [an employee] was employed to do[.]"
Id.
The bouncers' action, though guised as an opportunity to remove
plaintiff and Elwell, quickly turned into a beating. That this
action was performed with "negligent or improper method" opens
defendants to liability. Once Redfield struck plaintiff and the
beating commenced, Southard made no effort to restrain the
bouncers.
"Acting within the scope of employment means doing what
one was employed or authorized to do."
Edwards, 52 N.C. App. at
693, 279 S.E.2d at 897. Therefore, there was sufficient evidence
by which a jury could conclude that plaintiff was injured while
defendants' employees were acting within the scope of their duties.
Defendants' argument is without merit.
[2]
Defendants next argue that the trial court erred by
failing to allow the motion for judgment notwithstanding the
verdict as to punitive damages. This Court has said:
Under G.S. § 1D-15(c), punitive damages may
not be assessed against a corporation unless"the officers, directors, or managers of the
corporation participated in or condoned the
conduct constituting the aggravating factor
giving rise to punitive damages." N.C. Gen.
Stat. § 1D-15(c). As the legislature has not
seen fit to define the word "manager" in this
context, we must accord that word its plain
meaning.
See Grant Const. Co. v. McRae, 146
N.C. App. 370, 376, 553 S.E.2d 89, 93 (2001)
(if word not defined in statute, courts must
accord word plain meaning and refrain from
judicial construction). A "manager" is one
who "conducts, directs, or supervises
something."
Webster's Third New International
Dictionary 1372 (1968).
Miller v. B.H.B. Enters., Inc., 152 N.C. App. 532, 539-40, 568
S.E.2d 219, 225 (2002). In
Miller, we considered whether the
plaintiff failed to present sufficient evidence that an officer,
director, or manager of the defendant participated in or condoned
the attack on the plaintiff within the meaning of N.C.G.S. § 1D-
15(c). We found that the manager of the defendant's restaurant was
a "manager" within the meaning of N.C.G.S. § 1D-15(c). In
Miller,
the restaurant manager had supervisory powers, including the power
to hire and fire employees. The manager also worked "directly
under" and "hand-in-hand" with the owner of the defendant's
restaurant.
Miller, 152 N.C. App. at 540, 568 S.E.2d at 225.
We find
Miller to be instructive in its interpretation of
N.C.G.S. § 1D-15. Thus, we find the record in the present case
contains sufficient evidence that indicates that Southard was a
"manager" of defendants. Southard was operations manager of
defendants on 5 February 2000. He was the most senior employee on
duty at the time the incident occurred. At trial, Southard
testified that as operations manager, he "gave directions." He
further noted that, "[he] dispense[d] the liquor [and] [he]dispose[d] [of] the money." Southard set the work schedules for
the bouncers and supervised them when they arrived for work. He
employed supervisory power over the bartenders by assuring they
"got to the proper place" and he also "gave them the money they
needed." Southard also offered input as to whether employees
should be hired or fired, and he engaged in periodic meetings to
discuss personnel.
Moreover, we considered in
Miller whether the manager
"condoned" the attack on a patron of the defendant's restaurant for
the basis of finding punitive damages.
Id.
"The plain meaning of
'condone' is to 'forgive or overlook,'
The Oxford American
Dictionary 197 (1999), or 'permit the continuance of.'
Webster's
Third New International Dictionary 473 (1968)."
Miller, 152 N.C.
App. at 540, 568 S.E.2d at 225.
In
Miller, the evidence indicated
that the manager failed to intervene and failed to direct his
employees to intervene in a situation where the plaintiff was
struck and repeatedly kicked by employees of the defendant.
The
manager stood "right there" as the plaintiff was beaten.
Id.
We
concluded that there was sufficient evidence to show that the
manager condoned this attack on the plaintiff within the plain
meaning of N.C.G.S. § 1D-15.
In the present case, we find the evidence, taken in the light
most favorable to plaintiff, was sufficient to show that Southard
condoned the attack on plaintiff. When Southard was notified that
plaintiff and Elwell were in the bar, he sent Whaley and two other
employees to see if plaintiff and Elwell were the assailants.
After several minutes, Southard then gathered his staff ofbouncers. They went over to plaintiff and Elwell in two groups and
formed a semi-circle around plaintiff and Elwell. Whaley testified
that Southard also asked Redfield to assist in removing plaintiff
and Elwell. By his own testimony, Southard failed to intervene in
the beating of plaintiff. He did not ask the bouncers to stop or
attempt to break up the attack on plaintiff in any way. We find
defendants' argument to be without merit.
[3] Defendants finally argue that plaintiff's claim for
negligent infliction of emotional distress cannot be sustained;
however, the record shows that the trial court granted a directed
verdict as to plaintiff's negligent infliction of emotional
distress claim as to all defendants. Defendants' argument is thus
without merit.
N.C.R. App. P. 28(b)(6) provides that "[a]ssignments of error
not set out in the appellant's brief, or in support of which no
reason or argument is stated or authority cited, will be taken as
abandoned." Accordingly, defendants' remaining assignments of
error are deemed abandoned.
No error.
Judges CALABRIA and STEELMAN concur.
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