Robinson v. Ky Quang Nguyen

201 So. 3d 922, 2016 La.App. 4 Cir. 0258, 2016 La. App. LEXIS 1694
CourtLouisiana Court of Appeal
DecidedSeptember 21, 2016
DocketNO. 2016-CA-0258
StatusPublished
Cited by2 cases

This text of 201 So. 3d 922 (Robinson v. Ky Quang Nguyen) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robinson v. Ky Quang Nguyen, 201 So. 3d 922, 2016 La.App. 4 Cir. 0258, 2016 La. App. LEXIS 1694 (La. Ct. App. 2016).

Opinion

Judge Max N. Tobias, Jr.

_JjThe defendant, AAA Bui, Inc. (“Triple A”), appeals the trial court judgment holding it vicariously liable for damages sustained by the plaintiff, David Robinson, as a result of an intentional tort caused by an unidentified assailant whom the trial judge found to be an employee of Triple A. Finding Mr, Robinson failed to,carry his burden of proving vicarious liability, for the following reasons, we reverse the trial court’s judgment.

Facts and• Procedural Background

Mr. Robinson filed suit seeking damages for injuries he claims he sustained when he was stabbed in the head by an alleged employee of the North Broad Supermarket (the “Supermarket”), which is owned and operated by the defendant, Triple A, and is located at 1901 North Broad Avenue in New Orleans.1 According |2to Mr. Robinson, on 12 April 2012, while standing in the check-oút line at the Supermarket attempting to finalize his purchase of a cold drink, he began requesting money from another customer he knew when he realized he had insufficient funds to complete his purchase. In the petition, Mr. Robinson claims that the defendant, Ky Quang Nguyen, the Supermarket’s cashier at the time of the alleged incident, accused him of panhandling and demanded that he immediately leave the store. When Mr. Robinson allegedly responded by saying, “Make me,” Mr. Nguyen jumped the counter to confront him. Thereafter, a physical altercation between the two men ensued within the Supermarket, but then escalated and continued outside of the store.

When the brawl between Mr. Robinson and Mr. Nyugen purportedly ceased, Mr. Robinson claims he retreated to a bus stop located across the street from the Supermarket, when an unidentified employee of the Supermarket came up from behind and stabbed him in the side of the head. Mr. Robinson contends he was transported from the scene by ambulance to LSU Medical Center, where he received eight staples to close the head wound and remained overnight. As a result of the melee, Mr. Robinson avers he continues to suffer from sharp, shooting pains in his head and recurring nightmares.

The matter proceeded as a bench trial on 10 November 2015. According to Mr. Robinson’s trial testimony, he claims that the Supermarket cashier was the initial aggressor in the altercation and that he only fought back in order to defend himself. Further, Mr. Robinson testified that he was a regular customer at the store and denied that he was panhandling or that he [925]*925was trespassing at the time of the incident. He farther testified that the man' who stabbed him was either an owner or an employee of the Supermarket. Mr. Robinson introduced no evidence nor did he 13call any witness to corroborate his version of how the incident occurred or to establish that the unidentified assailant was an employee of Triple A acting within the course and scope of his employment at the time of the stabbing. Mr. Robinson conceded that Ky Nguyen was not the person who stabbed-him, but claimed that the unidentified assailant, purportedly a different Supermarket employee, was the culprit.

Mr. Nguyen testified bn behalf of Triple A. He denied that he was an owner of the Supermarket, but rather, stated that he was a cashier at the store and was the cashier on duty at the time of the alleged incident made the basis of this suit. Mr. Nguyen testified that Mr. Robinson would frequent the Supermarket two to three times a week and, on the date of the incident, Mr. Robinson had been “hanging out” outside the store off and on all day and appeared to be intoxicated. Mr. Nguyen further testified that Mr. Robinson was told at least “four times throughout that day” to leave the premises because he was panhandling and disrupting customers. On the final occasion that Mr. Robinson was asked to leave the premises, Mr. Nguyen stated that Mr. Robinson refused, became aggressive, and argued, “Make me leave.” Mr. Nguyen claims that he then came across the counter and met Mr. Robinson face-to-face demanding him to leave, at which point Mr. Robinson took a swing at him. Mr. Nguyen denied that he was the initial aggressor but admitted that he responded in self-defense by taking a swing back at Mr. Robinson. While the altercation commenced inside the store, Mr. Nguyen testified that the squabble slowly escalated and moved outside in front of the store. Mr. Nguyen denied ever stabbing Mr. Robinson.

Ms. Nhung Nguyen also testified on behalf of Triple A. Ms. Nguyen, whose mother owns the Supermarket, explained that she was familiar with Mr. Robinson |4as one who regularly panhandled outside the Supermarket two to three times a week. On the day of the incident, though not an employee of the Supermarket, Ms. Nguyen testified that she was assisting with the hot food line when she witnessed Mr. Robinson harassing a customer for money. She further testified that she heard the cashier, her brother, ask Mr. Robinson to leave and Mr. Robinson respond by saying, “I’m not leaving. Make me.” According to Ms. Nguyen, her brother jumped the counter, placed his arm around Mr. Robinson and attempted to escort Mr. Robinson out of the store. She testified that Mr. Robinson swung at her brother and, thereafter, an altercation ensued between the two and eventually moved outside in front of the business. She shouted for them to stop and then went inside the store and called the police. Ms. Nguyen denied that she saw her brother go after Mr. Robinson once Mr. Robinson left the premises and crossed the street heading in the direction of the bus stop. Further, she denied that her brother stabbed Mr. Robinson.2

After taking the matter as to Triple A’s vicarious liability under advisement,3 the trial court rendered judgment in favor of [926]*926Mi". Robinson and against Triple A, finding Triple A to be the employer of the “unknown employee/unnamed assailant” and, as such, vicariously liable for the damages Mr. Robinson claims to have sustained. In its judgment, the trial court reasoned:

Though the defendant, Ky Quang Nguyen, testified that he was not the employee who followed and stabbed David . Robinson, which was corroborated by testimony from the plaintiff, it cannot be ignored that Ky Quang Nguyen was the initial aggressor in the altercation. Both | Bdefendant, Ky Quang Nyugen [sic], and defendant, Che T. Vu, testified that the plaintiff responded by saying, “Make me,” when asked , to leave the store, prompting defendant, Ky Quang Nguyen, to jump across the counter and engage in a physical confrontation. By striking the plaintiff, defendant Ky Quang Nguyen’s actions set off the chain of events that ultimately led to the plaintiffs injuries.
Defendant, AAA Bui, Inc. is the legal owner of the North Broad Supermarket. AAA Bui, Inc. was the employer of Ky Quang Nguyen and the unnamed assailant who struck the plaintiff.

The judgment awarded Mr. Robinson damages in the amount of $4,000.00. Triple A timely filed the instant appeal.

Triple A avers the trial court erred in holding it vicariously liable to Mr. Robinson for damages allegedly caused by the “unnamed assailant” absent any evidence that Triple A either employed the “unnamed assailant” or was otherwise responsible for the “unnamed assailant’s” alleged intentional actions. We agree.

Discussion

Appellate courts review the trial court’s factual findings with the manifest error/clearly wrong standard of review. Hall v. Folger Coffee Co., 03-1734 (La. 4/14/04), 874 So.2d 90, 98.

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201 So. 3d 922, 2016 La.App. 4 Cir. 0258, 2016 La. App. LEXIS 1694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-ky-quang-nguyen-lactapp-2016.