Summary
discussing negligent hiring, retention, and entrustment
Summary of this case from Bailey v. Das N. Am., Inc.Opinion
SC 189.
May 10, 1973.
Appeal from the Circuit Court, Monroe County, R. E. L. Key, J.
Douglas Brown filed suit against Vanity Fair Mills, Incorporated, a Corporation. The complaint contained one count which was as follows:
"COUNT ONE: Plaintiff claims of the Defendant the sum of Seventy Five Thousand ($75,000.00) Dollars for that heretofore on, to-wit, May 22, 1972, the Defendant operated an apparel manufacturing plant in Monroeville, Alabama, and in such operation employed one, Herman Melton as a repairman. That on said day, the said Herman Melton was and long had been violent, careless, indifferent and heedless employee so that the tools used in his duties as an employee of Defendant in his hands became a dangerous and deadly agency, of which facts the Defendant had been duly informed, yet, with the information of such facts, the Defendant allowed the said Herman Melton to be upon public streets and places in Monroeville, Alabama in possession of the Defendant's tools, at will, and intrusted the control and operation of said tools to him, and while on said date as aforesaid, he went to Melton's Cabinet Shop, where Plaintiff lawfully was, and the said Herman Melton so negligently, heedlessly, recklessly and wrongfully conducted himself with respect to said tools that he struck the Plaintiff in the head with a hammer and Plaintiff by means of such death-dealing instrumentality suffered the following permanent and grievous injuries: his skull was crushed; his eye was injured; he has been rendered less able to work; he has incurred much medical expense in the treatment of his injuries; he has lost much time and profits from his work; he is still and will in the future receive medical for his injuries; he will incur more expenses in the future for his treatment and he will loose more profits from his work in the future due to these injuries.
And Plaintiff avers that all of his catalogued injuries was the proximate result of Defendant's negligence in that the Defendant had been informed of the said Herman Melton's dangerous proclivities as aforesaid.
And Plaintiff claims punitive damages.
Plaintiff demands a jury trial of this cause."
The defendant demurred to the complaint and the demurrer was sustained by the Circuit Court of Monroe County, Key, J. The plaintiff took a non-suit and appealed.
Affirmed.
William D. Melton, Evergreen, for appellant.
The acts of one or more persons are actionable negligence if it is shown that the defendant owes the plaintiff, as an individual or one of a class, a duty and such duty is breached. Liberty Natl. Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696; Bennett v. T. F. Distributing Co., 117 N.J. Super. 439, 285 A.2d 59; Collins v. Arkansas Cement Co., 8 Cir., 453 F.2d 512; Gardner v. Solomon, 200 Ala. 115, 75 So. 621; Kendall v. Gore Properties, Inc., 98 U.S.App.D.C. 378, 236 F.2d 673; Nordman v. Natl. Hotel Co., 5 Cir., 425 F.2d 1103; Johnston Harris, 387 Mich. 569, 198 N.W.2d 409; Bowman v. Home Life Ins. Co., 3 Cir., 243 F.2d 331; Hipp v. Hospital Authority of City of Marietta, 104 Ga. App. 174, 121 S.E.2d 273. An employer may become primarily liable for a personal assault by an employee upon another, if such employer has failed to exercise due care to avoid the selection or retention of such employee. Morris Hotel v. Henley, 145 Ala. 678, 40 So. 52; Honeycutt v. Pizitz, 235 Ala. 507, 187 So. 91; 34 A.L.R.2d 385 and later case cited at page 246 at Section 9; Jones v. Alden Mills, 150 Miss. 90, 116 So. 438. A hammer, when put to a tortious use, is a deadly weapon. Wall v. State, 16 Ala. App. 365, 77 So. 977; Code of Alabama 1940, Title 14, Section 34 (Recomp. 1958) and cases cited thereunder.
Hare Hare, Monroeville, for appellee.
A master is not liable for the tortious act of a servant on the ground that he had entrusted a simple tool, such as a hammer, to a servant. 53 Am.Jur. 2, Master and Servant, Secs. 420 and 421, pp. 433-435; Barmore v. Vicksburg Railway Co., 85 Misc. 426, 38 So. 210 (1905). The principal is not liable for willful torts of an agent done for the personal benefit of the servant or to gratify servant's spite or personal objective. Birmingham News Co. v. Browne, 228 Ala. 395, 153 So. 773; Tollett v. Montgomery Real Estate, 238 Ala. 617, 193 So. 127. Malice of an agent is ordinarily not imputable to the principal. Fleming v. Lon Morris College (Tex.Civ.App.) 85 S.W.2d 276. The cause of the injury in this instance is so remote from defendant that defendant cannot be charged with responsibility for the injury. 57 Am.Jur.2d Negligence, Sec. 33. Liability for negligence is predicated upon a causal connection between the negligence alleged as the wrong and injury of which complaint is made, and except where the requirement is abrogated or modified by statute, in respect of tort liability for negligence, the common law refers the injury to the proximate, not the remote, cause and establishes as an essential element of liability for negligence what traditionally has been referred to as proximate cause, or, as it is now frequently denominated, legal cause. The existence of merely some causal relation or connection between negligence and an injury is not sufficient to satisfy the law under which liability for negligence exists. 57 Am.Jur.2d Negligence, Sec. 128.
Douglas Brown, in a one-count complaint, which the Reporter of Decisions will set out in full, charged that one of Vanity Fair's employees, Herman Melton, came to the cabinet shop where he was working and hit him in the head with a hammer, severely injuring him. Brown contends Vanity Fair is responsible, as we understand his contention, on the ground that Vanity Fair knew Melton had "dangerous proclivities," and that Vanity Fair was negligent in employing and retaining Melton and entrusting the hammer to him.
Vanity Fair's demurrer to the complaint was sustained. Plaintiff Brown took a non-suit and appealed from the judgment of non-suit. We affirm.
Brown frames the issue presented as follows:
"The only real question is whether or not an employer can be liable for a personal assault by an employee upon another if such employer has failed to exercise due care to avoid the selection or retention of such an employee. In this case, did Vanity Fair breach a duty owed to Douglas Brown?"
Construing the allegations of the complaint most strongly against the pleader, in ruling on the demurrer, as the lower court was required to do under our present rules of pleading, the court was correct in ruling that the allegations fail to state a cause of action.
Rule 8 of the Alabama Rules of Civil Procedure which become effective July 3, 1973, changes the long-standing doctrine in Alabama of construing the pleadings strictly against the pleader when ruling on demurrers. Cf. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443 (1932). The goal of Rule 8 is to construe the pleadings so as to do substantial justice. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
The appellant apparently seeks to fasten liability on Vanity Fair on the theory that Vanity Fair was negligent in the selection and retention of the employee committing the assault. While it has been held that an employer has a duty to exercise reasonable care for the safety of his customers, patrons, or other invitees, and in fulfilling this duty he must use due care to avoid the selection or retention of an employee whom he knows or should know is a person unworthy, by habits, temperament, or nature, to deal with the persons invited to the premises by the employer, we do not think that rule is applicable here. In fact, we do not believe plaintiff below proceeded on this theory. The complaint does not allege that the servant was acting within the line and scope of his employment at the time of the assault nor that the servant was in any way furthering the master's business at the time and place of the assault. Therefore, we assume that plaintiff does not seek to recover on the principal-agent or employer-employee relationship.
See Annotation, Assault by Servant, 34 A.L.R.2d 372, 390.
Appellant argues that he stated a cause of action, since he alleged that Vanity Fair hired and retained Melton as a repairman and that Melton was known to have "dangerous proclivities," and that Vanity Fair entrusted Melton with a hammer and "allowed" him to "be upon the public streets and places in Monroeville, Alabama in possession of . . . tools, at will." In short, appellant says that if Vanity Fair had "properly investigated this particular employee, the employee would not have been entrusted or put in a position, with the tools to create damage." Of course, there are times when the entrustment of a dangerous instrumentality to a known incompetent can be actionable. Negligent entrustment is defined in Restatement (Second) of Torts § 390, as follows:
"One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."
The elements of negligent entrustment have been listed as follows:
"(1) Proof that the entrustee was incompetent, inexperienced or reckless; (2) that the entrustor 'knew or had reason to know' of the entrustee's condition of proclivities; (3) that there was an entrustment of the chattel; (4) that the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; (5) that the harm to the plaintiff was 'proximately' or 'legally' caused by the negligence of the defendant."
See Collins v. Arkansas Cement Co., 453 F.2d 512 (8th Cir. 1972); Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark.L.Rev. B. Ass'n J. 101 (1966).
Most of the negligent entrustment cases involve automobiles, but the all-embracing term "chattels" used in the Restatement is not restricted to automobiles.
We are aware that some jurisdictions have held that an "employer" can be held liable for the actions of his "agent" or "independent contractor" on the theory that the employer knew or should have known of the vicious propensities of the "agent" or "independent contractor." See Bennett v. T F Distributing Co., 117 N.J. Super. 439, 285 A.2d 59 (1971). Alabama courts have not ruled on the question as far as we can determine.
Because of the conflicting interests to be considered (the protection of innocent third persons as opposed to the possibility that employers would not hire those with a bad past), we await a proper case for the adoption of a proper rule in such instances. Suffice it to say that the allegations in this complaint fail to state a cause of action under a most liberal interpretation of the negligent entrustment doctrine, and the trial court did not err in sustaining the demurrer to the complaint. The judgment of non-suit is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur.