Latanowich v. Bryant

• Court: Superior Court of Maine
• Decided: May 14, 2010
• Docket: CUMcv-09-248
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-09-248 ~. f\j~ t' (I; ir y,­ T ,,/ I

'--­

FRANCIS, DONNA and MEGHAN LATANOWICH

Plaintiffs, ~~~O~r:f. ORDER v. oY~~':I ~~ <:,':I,C MICHAEL A. BRYA~~ME 't~\~ CUT MEAT MAR~~NS~a\1~ 0 THE COMMERCE INSU~NCE~~~ COMPANY, ~CJ'y

Defe~nts

Plaintiffs Francis, Donna, and Meghan Latanowich have brought suit

against defendants Michael A. Bryant, Prime Cut Meat Market, Inc., and the

Commerce Insurance Company in connection with an altercation between Mr.

Bryant and Mr. Latanowich in the summer of 2007. Prime Cut Meat Market, Inc.,

moves for summary judgment on the plaintiffs' respondeat superior claim. The

plaintiffs oppose the motion, and request leave to supplement their existing

opposition with new, recently discovered facts. These facts are immaterial to the

legal issues currently before the court and allowing the plaintiffs to supplement

their opposition would be futile. As such, their motion to supplement is denied

and Prime Cut's motion for summary judgment is granted.

BACKGROUND Prime Cut Meat Market, Inc., is a Maine corporation that was formed in

2007. (PI.'s CampI. 14; Opp. S.M.F. 12.) Michael A. Bryant invested between

$40,000 and $50,000 in the corporation at its inception and co-owns the business

with Laurie Pelletier. (Opp. S.M.F. 1<][2-4.) Prime Cut had four employees,

1 including Mr. Bryant and Ms. Pelletier. (Opp. S.M.F. <[ 7.) Ms. Pelletier would

pay Mr. Bryant an hourly wage for his work. (Opp. S.M.F. err<[ 6, 11.) Mr. Bryant

used his personal truck for business purposes and it was decorated with Prime

Cut's logo. (Opp. S.M.F. <[err 9-13.) Mr. Bryant also had a key to Prime Cut's

storefront. (Opp. S.M.F. err 14.)

In 2007, Mr. Bryant spent Labor Day weekend with his son and some

friends at the Kokotosi Campground. (Supp. S.M.F. err 6.) On Monday, September

3, he and his son left the campground in his truck with his personal trailer in

tow. (Supp. S.M.F. <[ 7.) Mr. Bryant took a detour on his way home to stop at

Prime Cut's storefront. (Opp. S.M.F. CJIerr 18, 21.) The store was not open that day,

and he wanted to see that it was secure and verify that the coolers were

operating properly. (Opp. S.M.F. err 19.) He may also have expected to meet with

Ms. Pelletier regarding Prime Cut's business. (Pl.'s M. to Suppl. at 2.)

As Mr. Bryant was driving from the campground on a two-lane road,

Francis Latanowich came up behind him and passed the truck and trailer. (Supp.

S.M.F. err 11; Exh. A, Bryant Depo. at 65-66.) Mr. Bryant testifies that Mr.

Latanowich passed him illegally at a curve and caused an oncoming vehicle to go

off the road, while Mr. Latanowich claims that he passed legally and did not

endanger any other drivers. (Exh. A, Bryant Depo. at 65-70.) The parties came to

a stoplight and Mr. Bryant exited his vehicle to confront Mr. Latanowich. (Supp.

S.M.F. en 11.) A physical altercation ensued, which both parties claim the other

started. (Supp. S.M.F. ~[ 1-2.)

Approximately fifteen years before the incident with Mr. Latanowich, Mr.

Bryant had been convicted of assault in connection with a barroom brawl and

served forty-eight hours. (Opp. S.M.F. err 23; Exh. A, Bryant Depo. at 85-86.) Mr.

2 Bryant had also been involved in a confrontation with police stemming from a

dispute with his former wife. (Opp. S.M.F. 124.)

On April 30,2009, Mr. Latanowich, together with his wife and daughter,

filed a complaint against Mr. Bryant alleging assault and battery, false

imprisonment, negligence, and both intentional and negligent infliction of

emotional distress. The complaint also named Prime Cut as a defendant under

the theory of respondeat superior, alleging that Mr. Bryant was acting wi thin the

scope and course of his employment during the incident. Prime Cut seeks

summary judgment in its favor.

DISCUSSION

1. Plaintiffs' Motion to Supplement Their Opposition to Defendant's

Motion for Summary Judgment

The plaintiffs seek to add additional statements of fact to their opposition.

These bcts stem from Mr. Bryant's answers to an interrogatory propounded by

Prime Cut. It appears that Mr. Bryant exchanged multiple phone calls with Ms.

Pelletier and her brother, Dana Pelletier, on September 3, 2007. This allegedly

"further supports the notion that [Mr.] Bryant was traveling on the particular

route and at the particular time on his way from the Kokatosi Campground on

Septemer 3, 2007 ... in order to conduct Prime Cut business." (Pl.'s M. to Suppl.

at 2-3.) These alleged facts are duplicative. Prime Cut has already admitted that

Mr. Bryant was driving to Prime Cut's storefront for business purposes at the

time of the accident. (See Opp. S.M.F. 11 15-19, 21-22.) Furthermore, they are

immaterial to the resolution of the motion for summary judgment as discussed

below. The plaintiffs' motion to supplement is denied.

3 2. Defendant Prime Cut's Motion for Summary Judgment

Summary judgment is appropriate where there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.

M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, en 4, 770 A.2d

653, 655. Any ambiguities "must be resolved in favor of the non-moving party."

Beaulicu v. TIle AulJc Corp., 2002 ME 79, err 2, 796 A.2d 683, 685 (citing Greeu v.

Cessna Aircmft Co., 673 A.2d 216, 218 (Me. 1996)). Here the parties agree to

disagree about who started the fight, so for the purpose of this motion the court

will assume that Mr. Bryant threw the first punch.

Mr. Latanowich claims there is a material dispute of fact as to whether Mr.

Bryant was acting within the scope of his employment during the incident

because he was tr,lVeling to Prime Cut's storefront for a commercial purpose.

Prime Cut contends that Mr. Bryant's alleged intentional torts fall outside the

scope of his employment as a matter law and it should thus be dismissed from

this action. Maine has adopted the Second Restatement of Agency's test to

determine whether an employer should be held vicariously liable for the actions

of an employee. Spcncer v. V.I.?, fnc., 2006 ME 120, err 6, 910 A.2d 366, 367. An

employer will only be liable for the employee's torts if they occur "within the

scope of employment." fd. (citing Mallar v. StoneWood Trmzsp., 2003 ME 63, 9I 13,

823 A.2d 540, 544). An employee's action occurs within the scope of employment

if:

(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limi ts; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

4 (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228 (1958).

Mr. Latanowich builds his argument almost exclusively around Spencer v.

V.I.P., Tnc., a case in which an employee negligently collided with another vehicle

while driving home from a work-related event. 2006 ME 120, <][<]I 2-3, 910 A.2d at

367. The employee in Spencer had volunteered to help set-up a promotional event

at a location other than his usual place of employment in exchange for $25 and a

T-shirt. fri. The trial court found that he was acting outside the scope of his

employment when driving home as a matter of law and granted summary

judgment for the employer. Id. <]I 4, 910 A.2d at 367.

On appeal the Law Court ignored the widely accepted "going-and­

coming" rule and vacated the trial court's decision. 1 lri.

Spencer, 2006 ME 120, (If 6,23, 910 A.2d at 367,372-73 (Saufley, c.J., dissenting);

see Christopher Vaeth, Annotation, Employer's Liability for Negligence of Employee

ill DriLJing His or Her Own Automobile, 27 A.L.R.5th 174, * 3 (1995 & Supp. 2007).

The Court found that there was a material dispute of fact about whether the

employee was acting in the scope of his employment because he received

compensation for attending the event, the travel to and from the event occurred

at times the employer would reasonably expect, and the employee was traveling

at least in part to serve the employer. Spencer, 2006 ME 120, <][<][ 7-9, 910 A.2d at

368.

1 The "going-and-coming" rule holds that employees are generally not acting

"within the scope of employment while commuting to and from work." Spencer, 2006 ME 120, <]I 16, 910 A.2d at 370 (Saufley, c.J., dissenting). This general rule is rife with exceptions. See Vaeth, supra, at * 4. 5 Mr. Latanowich analogizes the present facts to those in Spencer. At the

time of the incident Mr. Bryant was traveling to Prime Cut's storefront for a

business-related purpose. While there is no evidence to indicate that Prime Cut

anticipated that Mr. Bryant would be traveling to the storefront at that time, the,

nature of Mr. Bryant's duties may have made such trips foreseeable. Following

Spencer's indication that travel to and from a workplace can generally be

considered within the scope of employment, there is a question of fact as to

whether Mr. Bryant's travel at the time of the incident was within the scope of

his duties as an employee. Prime Cut concedes as much.

This does not end the inquiry. Unlike Spencer, this case involves alleged

intentional misconduct rather than mere negligence. In Spencer the question was

whether the employee's negligent travel was within the scope of his

employment. Here, the question is whether Mr. Bryant was acting within the

scope of his employment when he exited his vehicle and assaulted Mr.

LC1tanowich. See Mn!lf1r, 2003 ME 63, ~[ 17, 823 A.2d at 545 (analyzing a truck

driver's ass

rise to liability, rC1ther than the C1ctual trC1vel itself); Mn!wr, 2003 ME 63, ([[ 34, 823

A.2d at 548 (Alexancer, J., dissenting) (criticizing majority for not analyzing truck

driver's tailgating of family as separate from the assault,but agreeing that the

truck driver acted outside his employment when he exited his vehicle to threaten

a family with a pipe); Nichols v. Lnnd Tmnsport Corp., 103 F. Supp. 2d 25,26-27

(analyzing the stabbing that occurred outside the truck rather than the tailgating

that occurred while driving).

An employee's tortious or criminal conduct is not necessarily precluded

from falling within the scope of employment. See Mnllnr, 2003 ME 63, err 16, 823

6 A.2d at 545. Indeed, certain occupations explicitly contemplate that such activity

wi]] occur. Classic examples are employees in the business of repossessing goods,

or those serving as bouncers at taverns. Restatement (Second) of Agency § 245

cmt. a (1958). The nature of the employees' duties in these situations makes

personal contact and conflict foreseeable, even likely. In these cases the

employer's liability "depends fundamentally upon the likelihood of a battery or

other tort in view of the kind of result to be accomplished, the customs of the

enterprise and the nature of the persons normally employed for doing the work."

[d. At its core, this relates to the foreseeability of the tortious conduct and "the

principle that 'the master should not be held responsible for the agent's conduct

when that conduct is outside the contours of the employment relationship.'"

Mahar, 2003 ME 63, <[ 15, 823 A.2d at 545 (quoting Nichols, 103 F. Supp. 2d at 27);

see Restatement (Second) of Agency § 245 cmt. c (1958) ("'1'0 create liability for a

battery by a serV<1nt upon a third person, the employment must be one which is

likely to bring the servant into conflict with others.").

An employee's intent is also an important element determining whether

the employee's acts fall within the scope of the employment relationship. Mallnr,

2003 ME 63, err 14, 823 A.2d at 544 (citing Restatement (Second) of Agency §§ 235­

36). If an employee partially intends to serve his employer through the

commission of a tort or crime, but also acts out of personal satisfaction, his mixed

motives will not immunize the employer from liability for the wrongful conduct.

Restatement (Second) of Agency §§ 228(1)(c), 245 cmt. f (1958). However,

"actions that are done with a private, rather than a work-related, purpose to

commit wrongdoing are outside of the scope of employment and render the

motivation of the employee, in performing the act at issue a crucial, immunity­

7 related fact." Nichols, 103 F. Supp. 2d at 27 (quoting Bergeron v. Henderson, 47 F.

Supp 2d 61, 65-66 (D. Me. 1999) (cited witll approval by Maliar, 2003 ME 63, <[ 14,

823 A.2d at 545). "The fact that the servant acts in an outrageous manner or

inflicts a punishment out of all proportion to the necessities of his master's

business is evidence indicating that the servant has departed from the scope of

employment in performing the act." Restatement (Second) Agency § 245 cmt. f

(1958).

Working from these principles, Maine courts have twice found that truck

drivers who exit their vehicle and engage in "road-rage" related violence were

acting outside the scope of their employment as a matter of law. In Nichols v.

La1/d Transport Corp., an employee truck driver was driving his tractor-trailer rig

on Route 9 toward Brewer, Maine. 103 F. Supp. at 26. The employee "tried

several times to pass [the plaintiff] in no-passing zones." ld. The plaintiff, also a

truck driver, made obscene gestures at the employee, who subsequently tailgated

the plaintiff for several miles. ld. When the trucks stopped at a traffic light, the

employee exited the cab of his truck and the plaintiff did the s

plainti ff attacked the employee with a rubber-coated chain, and in the ensuing

scuffle the employee stabbed the plaintiff with a knife. ld. The plaintiff later tried

to hold the employer, Land Transport Corp., liable under the theory of

respondeat superior. ld.

The federal district court found that the employee left "the physical space

in which he was authorized to be as an agent for Land Transport" when he left

the cab of his truck. Id. at 27. This willful exit from the authorized space of his

employment was also clear evidence that the employee "was motivated to serve

his personal interests, rather than those of Land Transport." ld. Finally, the act of

8 "brandishing a knife and stabbing" the plaintiff constituted a serious crime

unrelated to the purposes of the employment. ld. The employee's '''clearly

inappropriate or unforeseeable conduct' motivated by his personal animus

toward" the plaintiff was "an abnormal and unexpected occurrence for which"

the employer was not responsible. Id.

The case of MnlInr v. StoneWood Tmnsport also involved a roadside

altercation on Route 9 near Brewer, Maine. 2003 ME 63,

The plaintiffs were a family who came up behind StoneWood's employee truck

driver on the road. Td. The employee began to turn "on his rear-facing

floodlights, which induced the [plaintiffs] to flash their headlights to show [the

employee] that their high beams were not on." Id. After some time, the employee

"suddenly stopped his truck to block the road ... exited his truck with a three to

four foot long pipe, and approached the [plaintiffs'] car in a threatening manner

while screaming obscenities and holding the pipe above his head like a baseball

bat." Id. ~r9[ 3-4, 823 A.2d at 542. The employee only stopped and got back in his

truck because another truck driver began to yell. Id. 9[ 4, 823 A.2d at 542. The

plaintiffs passed the truck, but the employee caught up "and followed them

closely for llpproximately fifty miles until a local police officer pulled [the

employee] over." Id.

The trial court granted StoneWood summary judgment on the plaintiffs'

vicarious liability claim. Id. 11, 823 A.2d at 541. On appeal, the Law Court

analogized the case to Niciiois and affirmed. See id. 1

Court found that "[a]ssault against and threatening of a family is serious criminal

conduct that is unanticipated and very different from conduct that StoneWood

would reasonably expect from" an employee truck driver, notwithstanding the

9 employee's prior history of poor driving. Jr!.

was neither "authorized to leave his truck to assault the [plaintiffs], nor was he

authorized to follow up the assault by harassing them on the highway." Jr!. This

conduct also made it "clear that [the employee's] motive for assaulting and

harassing the [plaintiffs] was unrelated to any interest of StoneWood." Jd. His

actions "were well outside the scope of his employment" and summary

judgment in StoneWood's favor was appropriate. 2 Jd.

In this case, the plaintiffs passed Mr. Bryant as he was driving a truck

emblazoned with Prime Cut's logo to the Prime Cut storefront. Mr. Latanowich

alleges that this so enraged Mr. Bryant that he left his truck at the next stop light,

approached the Latanowiches' car, and began to strike Mr. Latanowich

repeatedly. (Pl.'s CompI. at 2.) This alleged assault was so violent and outrageous

that it caused serious injury to Mr. Latanowich and allegedly caused Mr.

Latanowich's wife and daughter serious emotional distress. (PI.'s Compl. at 5-7.)

Accepting the plaintiffs' version of events as true, Mr. Bryant's assault

against Mr. Latanowich and the threat this posed to the Latanowich family

constitutes "serious criminal conduct that is unanticipated and very different

from conduct that [Prime Cut] would reasonably expect" from Mr. Bryant.

Malin]" 2003 ME 63, 117, 823 A.2d at 545. Mr. Bryant transports meat and assists

in the operation of Prime Cut's store. While his duties undoubtedly include

driving his truck and interacting with the public at the store, there is no

indication that his job ever requires him to leave his vehicle on the highway,

2Mahar v. Stol1eWoor! Transport has since been enshrined in the Third Restatement of Agency as an illustration of behavior that necessarily falls outside the scope of employment. Restatement (Third) of Agency § 7.07 cmt. c, illus. R-9 (2006). 10 approach a random vehicle, and assault the motorist within. See id. (driver not

authorized to leave truck, assault family, or harass them on highway).

Like the driver in Nichols, when Mr. Bryant left his truck he exited the

sphere of his employer's interests. See Nichols, 103 F. Supp. at 27 (employee not

authorized to leave truck and evinced personal motivations by doing so). The

assault was wholly foreign to any kind of action he was employed to perform,

and in no conceivable way served Prime Cut's interests. Nothing about Mr.

Bryant's employment required him to come into conflict with the public or

anticipated that violence might occur. Indeed, the alleged outrageousness of the

conduct evinces that Mr. Bryant was acting out of entirely personal motivations

and had no intent to serve Prime Cut when he approached the Latanowiches'

automobile. Even accounting for Mr. Bryant's admittedly checkered past, Prime

Cut could not have foreseen that Mr. Bryant would give vent to his "road rage"

as he allegedly did. Under the circulllstances, Mr. Bryant acted "well outside the

scope of his employment relationship" with Prime Cut, freeing it of

responsibility for his conduct. Mnl1t71', 2003 ME 63,

Despite all this, the plaintiffs contend that Prime Cut should still be

vicariously liable for Mr. Bryant's actions because he was an investor in and part

owner of the corporation. The Latanowiches argue that Mr. Bryant's ownershi p

stake in Prime Cut made him "his own master," able to authorize his own

conduct. They claim that when Mr. Bryant exited his truck, Prime Cut implicitly

authorized him, through the person of Mr. Bryant, to assault Mr. Latanowich on

Prime Cut's behalf. By this logic, Prime Cut gave Mr. Bryant actual authority to

terrorize the Latanowich family in the corporate name.

11 A corporation is an independent legal entity that exists apart from it:,;

constituent shareholders, directors, officers, and employees. See 13-C M.R.S. A.

§ 302 (2009). Mr. Bryant could not have authorized himself to act in Prime Cut's

name through any power as a shareholder or director because he did not have

time to execute the requisite formalities between the moment he stopped his

truck and the moment he began striking Mr. Latanowich. See 13-C M.R.S.A.

§§ 701, 704, 821-22 (2009) (enumerating formalities for shareholder and director

action with or without meetings). The only role in which Mr. Bryant could

conceivably have authorized his actions on Prime Cut's behalf is that of an

officer.

There is no evidence that Mr. Bryant actually held such a position in

Prime Cut's corporate structure. However, if Mr. Bryant was a corporate officer

he would fundamentally be an employee or agent of Prime Cut. Arlvnncen

COllstmctiotl Corp. v. Pilecki, 2006 ME 84, err 16, 901 A.2d 189, 196; 18B Am Jur 2d

Corporotions § 1316. Consistent with the ordinary principles of agency discussed

above, his authority as an officer would be "limited to acts within the ordinary

course of its business and within the scope of [hisJ authority and rwould] not

include acts performed solely for his ... own pleasure or benefit." 18B Am Jur 2d

Corporations § 1316.

The facts of this case make it clear that Mr. Bryant's actions fall outside the

scope of Prime Cut's business and Mr. Bryant's employment. Perhaps more

importantly, Mr. Bryant was wholly motivated by personal considerations when

he attacked Mr. Latanowich. Even if Mr. Bryant was an officer of Prime Cut, the

facts leave no doubt that he acted in his private capacity. The plaintiffs have not

12 alleged any alternative basis on which to premise Prime Cut's liability, so Prime

Cut's motion for summary judgment is granted.

The entry is:

The plaintiffs' motion to supplement their opposition is enied. Prime Cut's

motion for summary judgment in its favor on the aunt IX is granted.

DA'I'E;~2 1 0 0

13 l"Al;;~ A - A'l"l'U.KN~:t .I:H CA:::;~ V.L~W

FRANCIS LATANOWICH ET ALS VS MICHAEL A BRYANT ET ALS UTN:AOCSsr -2009-0046088 CASE #:PORSC-CV-2009-00248

04 0000006821 ROBERTS, CATHY ;;..;.:;.=..;;",;";;..;,;,,,.,::---.,;:..:..:..:=:-_--------------------­ THREE CANAL PLAZA PO BOX 4630 PORTLAND ME 04112-4630 F THE COMMERCE INSURANCE COMPANY DEF RTND 05/26/2009 ---------_---:...:...----:..---.,;-"-­

05 0000008898 VEILLEUX, JOHN R -----'--------------------------­ 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600 F MEGHAN LATANOWICH PL RTND 04/30/2009 F FRANCIS LATANOWICH PL RTND 04/3012009 F DONNA LATANOWICH PL RTND 04/30/2009 ~AG~ A - ArrUKN~Y ~Y CA~~ v~~w

FRANCIS LATANOWICH ET ALS VS MICHAEL A BRYANT ET ALS UTN:AOCSsr -2009-0046088 CASE #:PORSC-CV-2009-00248

01 0000007422 GERMANI, ELIZABETH ...:.....;;~:.;;..:........::....!_~:...=..:~=-=---------------------- 43 DEERING STREET PORTLAND ME 04101 F PRIME CUT MEAT MARKET INC DEF RTND OS/21/2009 W/DRWN 06/15/2009

02 0000008092 HILL, TRACY -_....:...-_-------------------------­ 43 DEERING STREET PORTLAND ME 04101 F PRIME CUT MEAT MARKET INC DEF RTND 06/15/2009

03 0000003402 LARKINS, NELSON ------'-------------------------­ ONE CITY CENTER PO BOX 9546 PORTLAND ME 04112-9546 F MICHAEL A BRYANT DEF RTND 07/31/2009 ---------------