UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Alieu Sheriff
v. Case No. 21-cv-571-PB Opinion No. 2023 DNH 133 Four Cousins Burgers & Fries of NH, LLC d/b/a Five Guys, et al.
MEMORANDUM AND ORDER
Alieu Sheriff, a food delivery worker, was accosted by two armed
maintenance workers inside a Five Guys restaurant while making an early
morning delivery. Sheriff has sued both the franchisee that operated the
restaurant and the business that employed the maintenance workers. The
defendants have responded with a motion for summary judgment. For the
reasons set forth below, I deny the defendants’ motion.
I. BACKGROUND
A. Factual Background
Sheriff, an employee of Reinhart Food Services, LLC, was attempting to
make an early morning food delivery to a Five Guys restaurant in Tilton,
New Hampshire when the events that gave rise to his claim occurred. Doc.
86-13 at 60-61. Upon his arrival, Sheriff used a key he obtained from one of
the defendants to enter through the restaurant’s main entrance. Id. His entry triggered an alarm, and he proceeded toward the restaurant’s kitchen to
disable the alarm and complete his delivery. Id. at 62-64.
Unbeknownst to Sheriff, two maintenance workers—Nick Gagnon and
Adam Briggs—were also onsite to repair the tiling in the kitchen. Id. at 63-
64; Doc. 86-11 at 44. At the sound of the alarm, Gagnon and Briggs, who were
similarly unaware of Sheriff’s scheduled delivery, moved to investigate. Doc.
86-11 at 52-53, 58. Brandishing a gun and knife, respectively, they
encountered Sheriff outside the kitchen doors. Doc. 86-13 at 66-68. Gagnon
and Briggs quickly recognized Sheriff’s delivery uniform, lowered their
weapons, and returned to their repairs. Doc. 86-11 at 54-55. No verbal
statements or threats were made to Sheriff, and Sheriff was not physically
injured. Doc. 86-13 at 69-70, 86.
Although Sheriff was able to finish his delivery route that day, he
suffered severe emotional distress and was unable to work for a significant
amount of time thereafter. Id. at 36-39, 83-84. He experienced numerous
symptoms, including anxiety, nightmares, and intrusive thoughts, and was
subsequently diagnosed with post-traumatic stress disorder (PTSD) and
prescribed medications to help manage his symptoms. Id. at 86-87; Doc. 86-3
at 4-6. The encounter also resurfaced several traumatic childhood events
Sheriff experienced while growing up during Sierra Leone’s civil war,
2 including suffering his own injuries and witnessing the murders of his father
and two uncles. Doc. 86-13 at 121-23.
B. Procedural Background
Sheriff has grouped his claims into a single count of negligence against
the franchisee of the Tilton Five Guys restaurant, Four Cousins Burgers &
Fries of NH, LLC (Four Cousins), and the entity that employed the
maintenance workers, Gellfam Management Corporation (Gellfam). 1 Doc. 48.
Sheriff argues that the defendants are directly liable for their own negligence
and vicariously liable for the negligence of the maintenance workers. Id. at 3
He asserts that the defendants are directly liable because they failed to keep
the premises “free of hazards” and “warn those entering the premises” of
those hazards. Id. He also alleges that defendants negligently “supervis[ed],
train[ed], and instruct[ed]” their employees by failing to “make them aware of
scheduled visits by vendors,” such as Sheriff, or “prevent[ing] them from
alarming or harming” lawful entrants. Id. Sheriff bases his vicarious liability
claim on his contention that Gagnon and Briggs, while acting for their
employers, failed to “tak[e] reasonable steps to investigate” the disturbance
1 Sheriff also sued Great Bons, Inc., a subsidiary of Gellfam that paid the maintenance workers and managed their tax withholding. He later abandoned those claims after I granted the summary judgment on cross claims asserted against Great Bons by Four Cousins and Gellfam. Doc. 84; Doc. 90.
3 Sheriff caused when he entered the restaurant and improperly brandished
their weapons when they encountered Sheriff. Id.
II. STANDARD OF REVIEW
Summary judgment is warranted when the record shows “no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Tang v. Citizens Bank, N.A., 821 F.3d
206, 215 (1st Cir. 2016). A “material fact” is one that has the “potential to
affect the outcome of the suit.” Cherkaoui v. City of Quincy, 877 F.3d 14, 23
(1st Cir. 2017) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.
1996)). A “genuine dispute” exists if a factfinder could resolve the disputed
fact in the nonmovant’s favor. Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 7 (1st
Cir. 2018).
The movant bears the initial burden of presenting evidence that “it
believes demonstrate[s] the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); accord Irobe v. U.S. Dep’t
of Agric., 890 F.3d 371, 377 (1st Cir. 2018). Once the movant has properly
presented such evidence, the burden shifts to the nonmovant to designate
“specific facts showing that there is a genuine issue for trial,” Celotex, 477
U.S. at 324, and to “demonstrate that a trier of fact could reasonably resolve
that issue in [its] favor.” Irobe, 890 F.3d at 377 (quoting Borges ex rel.
4 S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). If the nonmovant
fails to adduce such evidence, the motion must be granted. Celotex, 477 U.S.
at 324. In considering the evidence, the court must draw all reasonable
inferences in the nonmoving party’s favor. Theriault v. Genesis HealthCare
LLC, 890 F.3d 342, 348 (1st Cir. 2018).
III. ANALYSIS
To recover on a negligence claim, a plaintiff must prove “the existence
of a duty, the breach of which proximately cause[d] injury to the plaintiff.”
Smith v. Cote, 128 N.H. 231, 240 (1986). The scope of the defendant’s duty is
limited to the risks that are “reasonably foreseeable.” Macie v. Helms, 156
N.H. 222, 224-25 (2007). Additionally, where the plaintiff seeks to recover for
emotional distress without an accompanying physical injury, as in this case,
he must establish that he suffered “serious mental and emotional harm
accompanied by objective physical symptoms.” Tessier v. Rockefeller, 162
N.H. 324, 342 (2011); Moore v. Mortg. Elec. Registration Sys., Inc., 848
F. Supp. 2d 107, 135 (D.N.H. 2012). In most such cases, the plaintiff must
establish those physical symptoms and their causal relationship to the
defendants’ negligence through expert testimony. Thorpe v. State, 133 N.H.
299, 304 (1990); O’Donnell v. HCA Health Servs. of N.H., Inc., 152 N.H. 608,
611 (2005).
5 Four Cousins and Gellfam contend that they are entitled to summary
judgment on Sheriff’s negligence claim for three reasons. First, they argue
that Sheriff cannot prove the causation and physical symptom components of
his claim because his expert disclosures were untimely and inadequate. Doc.
86-1 at 11-12. Second, they contend that they did not owe Sheriff a duty of
care because they could not have reasonably foreseen that their conduct
would lead to Sheriff’s injuries. Id. at 18-19. Finally, they assert that Sheriff’s
vicarious liability claim fails because he cannot prove that the maintenance
workers were acting within the scope of their employment when they
confronted Sheriff. Id. at 14-17. I address each argument in turn.
A. Causation and Physical Symptoms
Sheriff plans to prove the causation and physical symptom components
of his claim by calling his treating providers and other medical professionals
who were commissioned by third parties to perform his independent medical
examinations (IMEs). The defendants argue that none of Sheriff’s expert
witnesses should be permitted to testify because Sheriff failed to comply with
his expert disclosure obligations. Id. at 11-12. They alternatively argue that,
even if Sheriff’s experts are permitted to testify, they cannot satisfy the
causation and physical symptom requirements of New Hampshire law. Id. at
9-12.
6 1. Expert Disclosure Requirements
Federal Rule of Civil Procedure 26(a)(2)(D) requires parties to make
expert disclosures “at the times and in the sequence that the court orders.”
Sheriff was required to make his expert disclosures by February 1, 2023, but
his attorney did not formally make the disclosures until March 6, 2023,
approximately one month after the deadline had passed. Doc. 86-3. Because
Sheriff’s disclosures were untimely, Four Cousins and Gellfam argue that
they cannot be considered. I disagree.
Federal Rule of Civil Procedure 37(C)(1) provides in pertinent part that
a party who fails to properly disclose an expert witness “is not allowed to use
that . . . witness . . . unless the failure was substantially justified or is
harmless.” 2 In the present case, I can consider the reports and records of
Sheriff’s proposed experts because his delay in making his disclosures was
harmless.
Sheriff disclosed the records of his treating providers and the reports of
several independent medical examiners in September 2021. See Doc. 34-3;
Doc. 88-3. He also notified the defendants of his intention to call his treating
2 Rule 37 also permits a court to impose lesser sanctions than preclusion in certain circumstances, but the defendants have not filed a separate motion for sanctions. Accordingly, I consider here only whether Sheriff should be barred from relying on the reports of his proposed experts in resisting the defendants’ summary judgment motion.
7 providers and medical examiners as expert witnesses in April 2022 while
seeking an extension of his expert disclosure deadline. Doc. 41 at 1 (stating
that “it is unclear whether it will be necessary to disclose liability experts (in
addition to treating and examining medical providers, whose records and
opinions contained therein have already been produced)”); Doc. 40 at 1
(same). Given these circumstances, defendants’ conclusory assertion that
they were somehow prejudiced by Sheriff’s failure to formally disclose his
experts by the February 1, 2023, deadline, Doc. 91 at 4, rings hollow. 3
The defendants alternatively argue that, even if Sheriff’s tardiness is
excused, his expert disclosures cannot be considered because the disclosures
do not contain sufficient information. Doc. 86-1 at 12. Again, I disagree. All of
Sheriff’s proposed experts are treating providers or independent medical
examiners. Because he did not retain them to provide expert testimony, he is
only required to identify each expert, describe the subject matter of the
expert’s testimony, and summarize “the facts and opinions to which the
expert is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Sheriff’s May 2023
disclosures minimally satisfy these requirements.
3 Although Sheriff later referenced only “treating medical providers” as potential witnesses in his December 5, 2022 email to the defendants, Doc. 86- 4 at 2, the defendants have not argued that they were somehow misled by this exchange or Sheriff’s failure to also mention the independent medical examiners.
8 2. Sufficiency
Having determined that the medical records and reports from Sheriff’s
treating providers and independent medical examiners may be considered,
the remaining question is whether they provide sufficient evidence of
causation and physical symptoms, as required under New Hampshire law, to
survive summary judgment.
Though defendants are correct that New Hampshire law has long
precluded recovery for “mere upset, dismay, humiliation, grief and anger,”
courts have nevertheless recognized certain “painful mental experience[s]” as
physical symptoms when they have “lasting effects” and are “susceptible to
some form of objective medical determination.” Corso v. Merrill, 119 N.H.
647, 652-53 (1979) (quoting Comment, Negligence and the Infliction of
Emotional Harm: A Reappraisal of the Nervous Shock Cases, 35 U. Chi. L.
Rev. 512, 517 (1968)). In doing so, New Hampshire has followed the
Restatement (Second) of Torts, which provides that “even long continued
mental disturbance[s], as for example in the case of repeated hysterical
attacks, or mental aberration, may be classified by the courts as illness,
notwithstanding their mental character.” Restatement (Second) of Torts
§ 436A cmt. c (Am. Law Inst. 1965).
9 For example, in Corso, the New Hampshire Supreme Court held that
the plaintiffs “may be able to prove” at trial that their depression diagnoses
are “susceptible to objective medical determination,” and thus, their “psychic
injury” was sufficient to satisfy the “physical consequences” requirement. 119
N.H. at 658. Furthermore, as Sheriff notes, the First Circuit has expressly
recognized a “PTSD diagnosis with accompanying symptoms” as “sufficient to
satisfy the physical consequences requirement” for a negligent infliction of
emotional distress claim under federal common law. Sawyer Brothers, Inc. v.
Island Transporter, LLC, 887 F.3d 23, 41 (1st Cir. 2018). I have no reason to
expect that the New Hampshire Supreme Court would follow a different path
on the issue.
Here, Sheriff has provided medical records from several of his treating
providers that discuss his PTSD diagnosis, which a jury could find
sufficiently observable to constitute a physical symptom. See, e.g., Doc. 86-5
at 7, 16. Moreover, his medical records document various other symptoms
associated with his PTSD diagnosis, such as “problems with sleeping,” which
a jury could also reasonably find satisfy the physical symptoms requirement.
Id. at 16; see, e.g., O’Donnell, 152 N.H. at 611-12 (implying that “sleeping
problems” could qualify as a “physical manifestations of [the plaintiffs’]
10 distress”). Thus, a jury could reasonably find Sheriff’s PTSD diagnosis
sufficient to satisfy the “physical symptoms” requirement.
The question then becomes whether Sheriff’s evidence sufficiently
relates these symptoms to defendants’ negligence. Judges in this district
have, on occasion, found a plaintiff’s expert testimony as to causation
insufficient. For example, Judge Laplante awarded summary judgment to a
defendant where there was “no admissible evidence suggesting that these
providers can testify as to any physical manifestations of [the plaintiff’s]
claimed distress or its link to the defendants’ conduct.” Brodeur v. Claremont
Sch. Dist., 626 F. Supp. 2d 195, 228 (D.N.H. 2009). And Judge McAuliffe
ruled in favor of a defendant in part because the plaintiff’s expert evidence
explicitly noted that the claimed distress was “secondary” to other stressors
unrelated to the allegedly tortious conduct. Pichowicz v. Hoyt, 2000 DNH
040, 2000 WL 1480445, at *2, 4 (D.N.H. Feb. 11, 2000).
Here, in contrast, Sheriff’s medical records include opinions by his
treating medical providers relating his PTSD and associated symptoms to his
encounter with Gagnon and Briggs. See, e.g., Doc. 86-5 at 4 (“Onset of anxiety
and depressive symptoms following stressful incident at work on 9/7/18[.]”);
id. at 26 (“[Patient] . . . has had PTSD for past 3+ years. This resulted from
his coming upon an armed robbery (gun and machete) when he was doing a
11 delivery[.]”). Based on this evidence, a jury could reasonably conclude that
Sheriff’s PTSD was caused by his encounter with Gagnon and Briggs.
Accordingly, Sheriff has identified sufficient expert evidence to permit these
questions to be presented to a jury.
B. Foreseeability
The defendants next argue that Sheriff’s encounter with the
maintenance workers was “incredibly unforeseeable,” and “no business or
property owner could have reasonably anticipated” its occurrence. Doc. 86-1
at 18. In their view, they could not have reasonably foreseen that two
maintenance workers, who were neither employed as guards nor permitted to
carry weapons, might approach a person in Sheriff’s position during their
early morning repairs, armed with a gun and knife. 4 Id. Sheriff rejects this
argument and contends that the encounter was foreseeable due to the “direct
contact” between himself and defendants’ employees. Doc. 88-2 at 7.
Every negligence claim “demands the existence of a duty from the
defendant to the plaintiff.” BK v. N.H. Dep’t of Health and Human Servs.,
814 F. Supp. 2d 59, 72 (D.N.H. 2011). The scope of this duty is, in turn,
4 It is unclear whether defendants are also arguing that Gagnon and Briggs could not have reasonably foreseen that their actions would cause emotional distress to Sheriff. To the extent that they are, I disagree. It is entirely foreseeable that drawing weapons on an unsuspecting person may cause emotional distress and psychological trauma.
12 “limited to those risks that are reasonably foreseeable.” Macie, 156 N.H. at
225; accord Corso, 119 N.H. at 651 (“Duty and foreseeability are inextricably
bound together.”). Under New Hampshire law, whether a defendant owes a
duty is a question of law for the court to decide. Maloney v. Badman, 156
N.H. 599, 602 (2007).
New Hampshire courts impose liability on landowners if it was
“foreseeable that an injury might occur as a result of the landowner’s actions
or inactions.” Kellner v. Lowney, 145 N.H. 195, 198 (2000). Similarly,
premises owners may be subject to “liability for harm caused to entrants on
the premises” if the harm resulted from “the owner’s failure to remedy or give
warning of a dangerous condition of which he knows or in the exercise of
reasonable care should know.” Rallis v. Demoulas Super Mkts., Inc., 159 N.H.
95, 99 (2009). This duty of care, in turn, “depends upon whether [the owner]
had actual or constructive notice of the dangerous condition.” Id. (citing
Restatement (Second) of Torts § 343 (Am. Law Inst. 1965)).
Employers also have a duty to exercise reasonable care in the
supervision, training, and instruction of their employees. Trahan-Laroche v.
Lockheed Sanders, Inc., 139 N.H. 483, 485 (1995); Cutter v. Town of
Farmington, 126 N.H. 836, 840 (1985). When an employer breaches this duty,
it can be liable for its own negligence even if its employee was not acting
13 within the scope of his employment when he injured the plaintiff. Trahan-
Laroche, 139 N.H. at 485. To be liable for its own negligent failure to train,
supervise, or instruct an employee, however, the employee’s injurious conduct
must be reasonably foreseeable to the employer. See Restatement (Third) of
Agency § 7.05 cmt. d (Am. Law Inst. 2006) (“Conduct that results in harm to
a third person is not negligent or reckless unless there is a foreseeable
likelihood that harm will result from the conduct.”).
Defendants cite Gellfam’s weapons policy, which restricts the use of
onsite weapons to police officers, security guards, or those expressly
authorized in writing—none of which included Gagnon or Briggs—to support
their contention that Sheriff’s injury was not foreseeable. But a real and
substantial risk of injury does not become unforeseeable merely because an
employer adopts a policy that prohibits conduct that contributes to the
plaintiff’s injuries. Instead, although the existence of such a policy may be
relevant to the foreseeability issue, and it may be considered in determining
the adequacy of an employer’s supervision of the employee, it will rarely be
determinative of the issue standing alone.
Here, what matters are the circumstances that led to Sheriff’s
encounter with Gagnon and Briggs. It is undisputed that this encounter
occurred during the early morning hours inside a locked restaurant. Sheriff
14 alleges that Gagnon and Briggs were assigned to work in the empty building
without any advance notice that Sheriff would be using a key he had been
given to him to enter the building. Given these circumstances, it was
foreseeable to the defendants that their workers might feel the need to take
precautions to protect themselves should they encounter an unknown person
in a restaurant they expected would be unoccupied. And there was a real and
foreseeable risk that someone in Sheriff’s position could face real injury if he
was mistaken for an intruder. Whether defendants’ supervision of Gagnon
and Briggs was adequate under these circumstances is a question for the
jury, but I agree with Sheriff that the risk that he would be injured in the
way he claims was foreseeable.
In a final effort to save their foreseeability argument, defendants
contend that it was unforeseeable that such a “brief altercation” could
“frighten[] anyone to the extent that they developed a debilitating case of
post-traumatic stress disorder.” Doc. 86-1 at 18. In response, Sheriff cites the
“eggshell plaintiff” doctrine and states that his “unusual[] susceptib[ility] to
emotional injuries . . . does not absolve the defendants of liability.” Doc. 88-2
at 7. I agree with Sheriff.
“One of the bedrock foundations of tort law is that the defendant takes
the plaintiff as it finds him.” Trull v. Volkswagen of Am., Inc., 320 F.3d 1, 10
15 (1st Cir. 2002). And courts have long held that liability may lie even when the
“particular form of such harm may not be foreseen” so long as the harm was
“of a such a character . . . to impose the need of precautionary attention and
action.” Chiuchiolo v. New England Wholesale Tailors, 84 N.H. 329, 544
(1930). Thus, Sheriff’s particular susceptibility to emotional distress due to
his childhood trauma is irrelevant to the question of legal foreseeability.
Instead, the inquiry is only whether it was foreseeable that an altercation
causing emotional distress would occur. On this point, the evidence
establishes that the possibility of such an altercation was foreseeable.
C. Scope of Employment
Finally, defendants move for summary judgment on Sheriff’s vicarious
liability claim, arguing that Gagnon and Briggs acted outside the scope of
their employment when they encountered Sheriff. Doc. 86-1 at 13-17. An
employer may be held vicariously liable for the tortious acts of its employee if
the employee was acting within the “scope of his employment” when the
tortious act injured the plaintiff. Daigle v. City of Portsmouth, 129 N.H. 561,
579 (1987) (citing Restatement (Second) of Agency § 219(1) (Am. Law Inst.
1958)). Under New Hampshire law, an employee’s conduct is within the scope
of his or her employment if “(a) it is of the kind he or she is employed to
perform; (b) it occurs substantially within the authorized time and space
16 limits; and (c) it is actuated, at least in part, by a purpose to serve the
master.” Pierson v. Hubbard, 147 N.H. 760, 766 (2002) (citing Restatement
(Second) of Agency § 228 (Am. Law Inst. 1958)). Whether an employee’s
conduct falls within the scope of employment is a question of fact. Porter v.
City of Manchester, 155 N.H. 149, 158 (2007).
Defendants argue that Sheriff’s complaint does not adequately raise
the issue of vicarious liability and, in any event, that he has failed to provide
sufficient evidence to support his claim. Doc. 86-1 at 14-15. I am unpersuaded
by either argument.
1. Pleading Vicarious Liability
Defendants argue that Sheriff cannot maintain a vicarious liability
claim against either defendant because the second amended complaint “fails
to even allege” that Gagnon and Briggs’ conduct occurred within the scope of
their employment. Id. at 14. Sheriff does not address defendant’s position on
this matter; nevertheless, I find defendants’ argument unavailing.
Sheriff’s second amended complaint alleges that Gagnon and Briggs
were “employees and/or agents of one or more of the defendants” and that
“defendants’ employees and[/]or agents, who were on the premises at the time
in question, also owed a duty of care, to refrain from carrying and displaying
dangerous and frightening appearing weapons without any provocation
17 and/or without taking reasonable steps to investigate the plaintiff’s identity
and purpose for being on the defendant’s property.” Doc. 48 at 2-3.
Considering that Sheriff only named the corporate entities as defendants and
construing his complaint generously, it is minimally sufficient to state a
plausible vicarious liability claim.
2. Proving Vicarious Liability
Defendants argue that Gagnon and Briggs were not acting within the
scope of their employment when they confronted Sheriff because their
responsibilities were limited to “fixing and cleaning” Five Guys restaurants
“after the restaurant[s] had closed,” and accordingly, their duties did not
warrant the use of dangerous weapons or interactions with third parties,
such as delivery personnel. Doc. 86-1 at 14-15. They also cite Gellfam’s
restrictive weapons policy as support for this assertion. Id. at 15. Sheriff
responds by noting that Gagnon and Briggs were scheduled to work “during
the night in an otherwise empty building where help from other employees
and passersby was not immediately available,” and, from this, a jury could
reasonably infer that their responsibilities included “protect[ing] their
employer’s property from damage by intruders, as well as protecting
themselves.” Doc 88-2 at 6.
18 Although defendants correctly assert that Gagnon and Briggs were not
employed to interact with delivery personnel, investigate suspicious behavior,
or brandish weapons, the inquiry is not so narrow. New Hampshire follows
the Restatement (Second) of Agency in recognizing that an employer may be
held vicariously liable “for the tortious acts of an employee committed
incidental to or during the scope of employment.” Trahan-Laroche, 139 N.H.
at 485 (emphasis added); accord Restatement (Second) of Agency § 229(1)
(Am. Law Inst. 1958). It also tracks the Restatement in recognizing that “[a]n
act, although forbidden, or done in a forbidden manner, may be within the
scope of employment.” Porter, 155 N.H. at 155-56 (quoting Restatement
(Second) of Agency § 230 (Am. Law Inst. 1958)).
In this case, neither Gagnon and Briggs’ narrow job description nor
Gellfam’s weapons policy necessarily shield defendants from liability. Rather,
Gagnon and Briggs were subjected to working conditions that exposed them
to certain inherent risks—namely, working during the night when the
restaurants were otherwise empty and immediate help was unavailable.
Furthermore, there is evidence that at least Gagnon appreciated those risks.
During his deposition, Gagnon testified that he feared for his safety at times,
such as the night when he watched a man steal his truck, which was
eventually returned to him with someone else’s weapon inside. Doc. 86-11 at
19 33. Accordingly, a jury could reasonably find that Gagnon and Briggs were
tasked with protecting themselves, their personal property, or the premises
while onsite and that their actions during the encounter with Sheriff were at
least in part committed within the scope of their employment.
Although defendants cite several cases in support of their argument,
none involved allegedly tortious conduct resulting from a hazard of the
employee’s job. For example, in Priestley v. Newlin, the court found that a
prison employee did not act within the scope of his employment when he groped
the plaintiff’s genitals during a strip search because the employee was not
authorized to have any contact with the inmate’s genitals, and there was no
“security reason” that created such a necessity. No. 14-cv-148-LJ, 2016 WL
3023826, at *3 (D.N.H. Apr. 28, 2016), report and recommendation adopted
2016 WL 3024059 (D.N.H. May 24, 2016); see also Sullivan v. Transp. Sec.
Admin., 2010 DNH 151, 2010 WL 3269881 (D.N.H. Aug. 19, 2010) (finding that
a Transportation Security Administration agent did not act within the scope of
his employment when he stole a passenger’s watch during a routine security
check); May v. Dartmouth Hitchcock Med. Ctr., 2003 DNH 111, 2003 WL
21488697, at *1 (D.N.H. June 24, 2003) (ruling that a medical employee did
not act within the scope of her employment when she disclosed a patient’s
20 medical records “on her own time, at a private function, and entirely for her
own purposes”).
Instead, I am persuaded by cases from other jurisdictions that
recognize that whether an employee is acting within the scope of his
employment when he overreacts to a perceived threat to his personal safety
while performing his employers’ business is generally a jury question. See,
e.g. Trabulsy v. Publix Super Mkt., Inc., 138 So. 3d 553, 555-56 (Fla. Dist. Ct.
App. 2014); Garcia v. Fuentes, No. 43698, 1982 WL 5283, at *3-4 (Ohio Ct.
App. Apr. 8, 1982); Tymiv v. Lowe’s Home Ctrs., LLC, No. A-0222-20, 2021
WL 3234459, at *7 (N.J. Super. Ct. App. Div. July 30, 2021). Accordingly, I
reject defendants’ summary judgment challenge to Sheriff’s vicarious liability
claim.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion for summary
judgment, Doc. 85, is denied.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
October 23, 2023
cc: Counsel of Record