Massey v. Starbucks Corp.

Not Reported in F.Supp.2d, 2004 WL 1562737, No. 03 Civ. 7279SAS (S.D.N.Y. (2004)

OPINION AND ORDER

SCHEINDLIN, J.

I. INTRODUCTION. Kenya Massey brings this action against Starbucks Corporation to recover damages for injuries she suffered when she was assaulted by two Starbucks employees. Starbucks now moves for summary judgment on the ground that its employees were not acting within the scope of employment when they assaulted Massey. For the reasons set forth below, Starbucks's motion is granted.

II. BACKGROUND. On the evening of February 18, 2003, Kenya Massey and her fiancee, Raymond Rodriquez, visited a Starbucks store located at 750 Seventh Avenue in Manhattan. The couple ordered two beverages from Starbucks employee Okang Wilson, and paid for their drinks. Rodriquez and Massey moved towards the seating area while they waited for their drinks to be prepared.

Karen Morales, the shift supervisor at the store, told Massey and Rodriquez that they could not sit down because the store was closing. Massey asked Morales what time the store closed, and Morales told her that it closed at ten o'clock. Massey pointed out that a large digital clock across the street read nine fifty-two. Morales responded that it was ten o'clock according to her watch, and that she was closing the store.

Massey, who had still not received her drinks, informed Morales that she had paid for her beverages, and that she and Rodriquez intended to sit and enjoy them in Starbucks. Morales instructed Starbucks employee Louis Suriel to cancel Massey's beverage order and refund Massey's money. Massey asked to speak with a manager. Morales identified herself as the manager. Massey asked for the supervisor's name. Morales identified herself as the supervisor, and told Massey to “get a life.” Massey insisted that she was not leaving until she could file a complaint about Morales's behavior.

At that point, Starbucks employee Melissa Polanco became involved in the argument between Massey and Morales. She told Massey: “I get off at ten o'clock and we can go outside.” Polanco gestured aggressively, as if she were going to physically remove Massey from the premises. Rodriquez suggested to Massey that they leave voluntarily, and Massey agreed.

As Rodriquez and Massey started to leave the store, Suriel went over to them and apologized. Polanco, Morales and Wilson held the door open for Rodriquez and Massey as they exited. The couple walked away from the store and towards a nearby subway station, while Massey and the employees yelled profanities at each other.

As Massey continued to walk away, Polanco ran after and caught up with her, and punched her in the face. Morales then jumped on Massey's back. Massey and Morales fell into a snowbank on the sidewalk, and a physical altercation ensued. A pedestrian passerby finally separated the two women. Massey's face was bleeding when she got up.

Massey pressed charges against Polanco and Morales the next morning, February 19, 2003. Morales and Polanco each pled guilty to two counts of assault. All three Starbucks employees who were involved in the altercation—Wilson, Polanco, and Morales—were terminated within four days of the incident.

III. APPLICABLE LAW
A. Legal Standard for Summary Judgment. Summary judgment is permissible “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “An issue of fact is ‘genuine’ if ‘the evidence is such that a jury could return a verdict for the nonmoving party.” ’ “A fact is ‘material’ for these purposes if ‘it might affect the outcome of the suit under the governing law.” ’ See Fed.R.Civ.P. 56(c). The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Accordingly, the non-moving party can defeat summary judgment by raising a genuine issue of material fact. However, she “must do more than simply show that there is some metaphysical doubt as to the material facts,” and she “may not rely on conclusory allegations or unsubstantiated speculation.” Rather, the non-moving party must produce admissible evidence that supports her pleadings. In this regard, “ ‘[t]he mere existence of a scintilla of evidence’ supporting the non-movant's case is also insufficient to defeat summary judgment.” Ordinarily, “the determination of whether a particular act was within the scope of the servant's employment is ... heavily dependent on factual considerations.” Therefore, it typically cannot be resolved on a motion for summary judgment. “However, where ... there is no conflicting evidence as to the essential facts, a court may make [the scope of employment] determination as a matter of law.”

B. Legal Standard for Scope of Employment. “The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of his employment.” To act within the scope of employment, “the servant's conduct must be the kind which he is authorized to perform,” conducted “substantially within the authorized limits of time and space,” and “actuated at least in part, by a desire to serve the master.” In order to hold an employer liable for an employee's actions, the employee's “tortious act must have in some way been effectuated to advance the employer's interest.”

To determine whether an employee was acting within the scope of employment, courts inquire “whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions.” An employee's actions will be within the scope of employment so long as he acts “in the performance of duties enjoined upon him by his employment and in the furtherance of his employer's interests.” “Liability will not attach, however, where the [employee's] acts ... are done with a purpose foreign to the interests of the employer.”

The New York Court of Appeals has suggested that courts consider the following factors in deciding whether an employee has acted within the scope of employment: the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated.”

Although none of these factors is decisive, New York courts generally stress the fifth factor, namely, whether the employee's conduct “could reasonably have been anticipated” by the employer. This emphasis is grounded in the policy on which the doctrine of respondeat superior is based: “The master ... is justly held responsible when the servant, through lack of judgment or discretion ... goes beyond the strict line of his duty ... and inflicts an unjustifiable injury upon another.”

[F]or an employee to be regarded as acting within the scope of his employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected.... [Thus,] where the element of general foreseeability exists, even intentional tort situations have been found to fall within the scope of employment.

In Pizutto v. County of Nassau, for example, a correctional officer was responsible for maintaining order inside a prison facility. Because the officer's employer anticipated that the officer would use force in performing his duties, the employer was held vicariously liable when that officer brutally beat one of the prisoners.

Employees may be found to act “in furtherance of their [employers'] interests” even if they act with unwarranted aggression, if their purpose is “to enforce a rule promulgated by [their] employers.” Thus, in Sims v. Bergamo, the court found that a bartender may have assaulted a customer in an effort to uphold his employer's policy of barring entry to intoxicated customers. Similarly, in De Wald v. Seidenberg, the court found that a superintendent could have been acting within the scope of employment when he assaulted a tenant; his purpose may have been to uphold the landlord's building rules.

Although “[e]mployers have been found vicariously liable for an intentional assault where the nature of the employee's duties made it foreseeable that such an assault would take place,” an employer will not be held liable for an employee's actions when those actions “were undertaken by the employee for wholly personal motives.” Nor will an employer be held liable if the employee's conduct constitutes “such a wide departure from [the] normal method of performance as not to be reasonably anticipated” by the employer.

IV. DISCUSSION
Massey contends that because her assault was sparked by a dispute concerning whether the store should close, the employees were acting in an employment capacity even when they chased Massey down the street. According to Massey, Starbucks could reasonably have anticipated that its employees would be overzealous in encouraging customers to leave stores at closing time. Thus, in Massey's view, Starbucks should be held liable for her assault, as its employees were simply using excessive force in order to uphold Starbucks'ss closing policy.

Starbucks argues that it could not possibly have anticipated that its employees would assault a customer because the customer refused to leave the store at closing time. Starbucks points out that it instructs employees to call security if a customer refuses to leave. In Starbucks's view, the assault on Massey constituted a drastic departure from this procedure, and, as such, was not generally foreseeable behavior.

Starbucks insists that its employees were not acting in furtherance of its interests when they attacked Massey on the sidewalk. It argues that “it would be difficult to envision an act more foreign to the interest of Starbucks than assaulting a customer.” Massey responds that Starbucks incorrectly assumes that the conduct in question is the assault; in fact, Massey argues, the conduct in question is the closing of the store. Massey claims that “the scenario of a dispute arising over the closing of the store ... is certainly within the realm of foreseeability.”

Massey fails to consider that she suffered no damages as a result of the dispute, but only as a result of the assault. Thus, the question for this Court is not whether the employees were acting within the scope of their employment when they first began arguing with Massey. Rather, the question is whether they were acting within the scope of their employment when they assaulted her. Massey urges this Court to view both the dispute and the ensuing assault as one event, centering around the closing of the store. However, several facts lead me to conclude that while the dispute may have started when the employees were acting within the scope of employment, it ended in an assault that was clearly outside of that scope.

First, when Polanco ran after Massey, there was no question that the store was closed and that Massey would not be returning that night. Thus, the employees could not have been motivated by a desire to close the store when they assaulted Massey. Second, Polanco told Massey that she “get[s] off at ten” at which point they could “go outside.” The employees thereby differentiated between the dispute and the subsequent assault, their professional obligations and their personal animosity. Third, the employees made a point of waiting until Massey had left the store before they assaulted her. By holding the door open for Massey and Rodriquez while they exited, the employees indicated to Massey that their roles as employees were different from their roles as assailants.

New York courts have held employers vicariously liable for intentional torts committed by employees only where the employees intended those actions to benefit their employer. Thus, if the Starbucks employees had assaulted Massey in order to remove her from the premises so that they could close the store on time, they would have been acting within the scope of employment. If that were the case, it would not matter whether the employees' actions were actually in Starbucks's interest, so long as the employees were at least partly motivated by a desire to do their job.

In this case, the employees did not assault Massey as part of their job. They did not attack Massey on the sidewalk to remove her from the store at closing time, or for any other employment-related purpose. In fact, the employees deliberately waited until Massey had voluntarily left the store before they assaulted her. Morales, Polanco, and Wilson were not acting overzealously in executing their assigned tasks. This assault was not the result of poor employee judgment; rather, it was an act committed for purely personal reasons.

V. CONCLUSION
Because Starbucks's employees' actions were not reasonably foreseeable, and because those acts constituted a drastic departure from normal employment practices, they cannot be considered within the scope of employment. Accordingly, Starbucks cannot be held vicariously liable for their assault on Massey. Summary judgment is therefore granted in favor of Starbucks. The Clerk is directed to close this motion [docket # 10] and this case.

SO ORDERED.