Summary
holding that an employer is generally not vicariously liable for the intentional torts of its employees "if the employee does the act while engaged in the employer's work, but outside his authority."
Summary of this case from Kesner v. Little Caesars Enterprises, Inc.Opinion
Docket No. 94942.
Decided July 6, 1988.
Lakin, Worsham Victor, P.C. (by Larry A. Smith), for plaintiff. Gofrank Kelman (by Thomas J. Killeen, Jr.), for defendant.
Plaintiffs appeal from an order issued by the Wayne Circuit Court granting summary disposition to defendant Burroughs Corporation.
Defendant Debra Switchenko, who was employed by Burroughs, was shopping for a used car in September, 1984, for her personal use. After finding a car she liked at Blackwell Ford, Ms. Switchenko began to negotiate for its purchase with plaintiff Ronald Leitch, a used car salesman. On October 2, 1984, Ms. Switchenko returned to the dealership to buy the car and made Leitch an offer for the car that was about $300 to $400 lower than Leitch's previous offer. Thereupon a ten- to fifteen-minute exchange took place between Switchenko and Leitch which Switchenko later characterized as rude, embarrassing, intimidating, and angry. Switchenko left the lot, returned to her office at Burroughs, and wrote a letter on Burroughs' stationery to the president of Blackwell Ford that became the basis of this action. Ronald Leitch was fired the day the letter arrived.
Plaintiffs sued Switchenko and Burroughs. In the first three counts of the complaint, plaintiffs asserted that Burroughs was liable, on a respondeat superior basis, for libel, slander, and interference with the employment contract between Ronald Leitch and his employer. In Count IV of the complaint, Burroughs was charged with negligence in hiring Ms. Switchenko. Burroughs moved for summary disposition of the claims against it. The lower court concluded that Ms. Switchenko had been acting solely in her individual capacity and not as either an actual or apparent agent of Burroughs. It held that Burroughs was not, therefore, liable for the libel, slander, or contract interference allegedly committed by Switchenko and granted summary disposition to Burroughs under MCR 2.116(C)(10). The court also held that there were no facts to support the claim that Burroughs had been negligent in hiring Switchenko and that summary disposition as to this count was proper under MCR 2.116(C)(8). Plaintiffs appeal from the amended final order granting judgment to Burroughs.
Plaintiffs claim on appeal that liability against Burroughs was established under the doctrine of respondent superior and, therefore, the trial court's grant of summary disposition to Burroughs on all four counts was improper.
We initially note that plaintiffs have abandoned any claim that summary disposition on Count IV, as to negligent employment, was improper. The title of plaintiffs' sole argument on appeal concludes that the employer is liable on the basis of respondeat superior. Since Count IV was an allegation made directly against the employer, there would be no respondeat superior liability. Moreover, the only place plaintiffs' claim as to Count IV is arguably addressed is in the last paragraph of plaintiffs' brief, in a one-sentence argument with no citation to authority. A statement of position without supporting citation is insufficient to bring an issue before this Court. A party may not leave it to this Court to search for authority to sustain or reject its position. Tringali v Lal, 164 Mich. App. 299; 416 N.W.2d 117 (1987). This Court concludes that the issue as to summary disposition on Count IV has been waived. City of Midland v Helger Construction Co, Inc, 157 Mich. App. 736, 745; 403 N.W.2d 218 (1987).
We now focus on plaintiffs' claim as to Counts I, II, and III of their complaint and whether summary disposition was properly granted pursuant to MCR 2.116(C)(10).
A motion for summary disposition on the ground that there is no genuine issue of material fact tests the factual support of the claim. Slaughter v Smith, 167 Mich. App. 400; 421 N.W.2d 702 (1988); Hagerl v Auto Club Group Ins Co, 157 Mich. App. 684, 687; 403 N.W.2d 197 (1987), lv den 428 Mich. 900 (1987). The court must consider the affidavits and all other evidence as well as the pleadings and be satisfied that the claim cannot be supported by evidence at trial before granting summary disposition under MCR 2.116(C)(10). Id. The opposing party is entitled to all benefits of doubt and all reasonable inferences must be decided in that party's favor. Id.
As a general rule, an employer may be vicariously liable for the intentional torts of an employee "if the tort is committed in the course and within the scope of the employee's employment. An employer is not liable, however, if the employee does the act while engaged in the employer's work, but outside of his authority." Burch v A G Associates, Inc, 122 Mich. App. 798, 804; 333 N.W.2d 140 (1983); Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 624; 363 N.W.2d 641 (1984). Liability under this doctrine may also be based on a finding that the employee was acting within the apparent scope of his employment. McCann v Michigan, 398 Mich. 65, 71-72; 247 N.W.2d 521 (1976); Smith v Merrill Lynch Pierce Fenner Smith, 155 Mich. App. 230, 236; 399 N.W.2d 481 (1986). Whether the employee was acting within the scope or apparent scope of employment is generally a question for the trier of fact; however, summary disposition is appropriate "where it is apparent that the employee is acting to accomplish a purpose of his own." Id.
By analogy, the concept of "apparent scope of employment," like apparent authority in the agency context, is based upon conduct of the employer which leads a third party to reasonably believe that the employee's actions were taken on behalf of the employer. The critical factors are the employer's conduct and the third party's reasonable belief. See Central Wholesale Co v Sefa, 351 Mich. 17, 25; 87 N.W.2d 94 (1957); Michigan National Bank of Detroit v Kellam, 107 Mich. App. 669, 679-680; 309 N.W.2d 700 (1981), lv den 413 Mich. 870 (1982); 2A CJS, Agency, § 158, pp 793-795 (1972).
In this case, the relevant third party appears to be John Blackwell, president of Blackwell Ford. John Blackwell testified that he was not under the impression that the letter was written on behalf of Burroughs, nor did he or any of Ronald Leitch's supervisors believe that Switchenko was buying the car on behalf of Burroughs. Plaintiffs offered no evidence to rebut this. There was no evidence that Switchenko was acting within the actual scope of her employment or that the letter was authorized by any of Burroughs' personnel. Switchenko testified that she neither sought nor received permission from anyone at Burroughs before sending the letter.
This is a case where it is apparent that the employee was acting to accomplish a purpose of her own. Smith v Merrill Lynch, supra at 236. There was no factual support for plaintiffs' claim that Switchenko was acting within the scope of her employment. The trial court properly granted summary disposition in favor of Burroughs on Counts I, II, and III pursuant to MCR 2.116(C)(10).
Affirmed.