This was originally published on the SGR Blog.
Were Theatre Owners Vicariously Liable for Injury to Customer?
Unruly patrons at a crowded theatre are not unusual. But are the owners of movie theatres liable for the injury to an aggressive patron where the responsive actions of the manager were prohibited but foreseeable?
On the evening of April 23, 2011, Victor Norwood and several friends, went to the AMC Lowes Roosevelt Field 8 movie theater at the Roosevelt Field Mall located in Garden City. According to Eric C. Adams, one of the theater managers working that evening, the group was “causing a ruckus” near the theater entrance before they came inside. Some group members were “hitting” the glass entrance doors. Roosevelt Field Mall security guards were notified; they instructed the group to buy tickets to a movie or leave.
The group members purchased their tickets and waited in line at the concession stand in the theater lobby when a verbal dispute began between Norwood and Adams regarding something Norwood said about a concession stand worker. Adams asked Norwood to leave the theater. A male security guard was with Adams during this time.
As the incident escalated, one of ‘ ‘Norwood’s friends began to “get aggressive” with Adams; he told Adams to “get out of here” and “mind [his] business.” Adams then removed a collapsible baton from one of his pants pockets and extended it. He kept the baton by his side; he did not swing it or otherwise use it to make contact with Norwood plaintiff or any of his friends. Upon noticing the baton, Norwood laughed at Adams. According to Adams, Norwood also said that he “[had] something for [Adams] in the car.” Adams walked away. The incident, to that point, had lasted approximately a minute.
Norwood and his friends asked for and were given, refunds for their tickets. They left the theater, stopping on the sidewalk just outside the entrance.
When Norwood and his friends left the theater, Adams walked out and went to his vehicle. Adams retrieved an airsoft pistol (a pellet gun) attached to a “utility belt,” and then returned to the sidewalk area in front of the theater where Norwood and his friends had congregated. When asked during his deposition why he returned to the front of the theater, Adams stated, “I’m the manager, and I can’t leave.” He also indicated that he believed that Norwood might have gone to his vehicle to retrieve a weapon.
Then the altercation between Norwood and Adams resumed. The accounts of what happened next differed. Norwood testified that Adams pointed the pellet gun at him. Adams denied doing so. In either case, Norwood and his friends scattered, running in different directions. A security guard told Adams to go back inside the theater. Adams complied and was subsequently arrested.
Norwood sued Simon Property Group, Inc., AMC Entertainment, Inc., AMC Lowes Roosevelt Field 8, and Adams alleging causes of action sounding in intentional infliction of emotional distress, assault and battery, vicarious liability, negligent hiring, training, and supervision, and negligence. After the completion of discovery, Simon/AMC/Adams moved for summary judgment dismissing the complaint. Supreme Court granted the motion. Norwood appealed,
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. The applicability of that theory of liability turns on a determination of whether the act was done while the servant was doing his master’s work, no matter how irregularly or with what disregard of instructions. Put another way; an employer is not necessarily excused from vicarious liability merely because his employees, acting in furtherance of his interests, exhibit human failings and perform negligently or otherwise than in an authorized manner. On the other hand, an employer cannot be held vicariously liable for its employee’s allegedly tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business. Drawing this distinction may appear simple, but it is more simply said than applied because it depends largely on the facts and circumstances peculiar to each case. And because the determination of whether a particular act was within the scope of the servant’s employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury.
The evidence that Adams was not employed by Simon, and was employed, instead, by AMC Entertainment/Lowes. Since Norwood failed to raise a triable issue of fact on that point, Supreme Court properly granted that branch of the motion for summary judgment dismissing the vicarious liability cause of action insofar as asserted against Simon.
AMC Entertainment/Lowes submitted a copy of the “AMC Theatres Manager Handbook,” which prohibited managers from “[p]ossessing, brandishing, or using a weapon while on AMC premises or while engaged in AMC business.” The Handbook also included a “Guest Service Protocol” section, which stated that, if guests are “disruptive or potentially violent,” managers “may need to have them escorted off of the property,” as part of their “obligation to protect . . . guests, associates [and themselves].” Consistent with that expectation, the general manager of the theater, Adams’s supervisor, stated, during his deposition, that managers, like Adams, had security-related responsibilities, including ensuring that the theater was safe for customers and dealing with unruly patrons. And Norwood, during his deposition, stated that he believed Adams was a security guard.
When a business employs security guards or bouncers to maintain order, physical force may be within the scope of their employment. Adams did not hold either of these job titles. Still, his responsibilities included maintaining order at the theater, ensuring the safety of customers and staff, and, if necessary, facilitating the removal from the theater of “disruptive or potentially violent” customers. The accomplishment of those ends by means prohibited by the AMC policy was not necessarily unforeseeable. After all, an employee’s disregard of instructions is an almost inevitable feature of vicarious liability claims involving intentional torts. And specifically, instructing employees to refrain from certain kinds of behavior when dealing with customers does not compel the conclusion that, as a matter of law, the prohibited conduct was outside the scope of employment. Unquestionably, Adams’s response to Norwood and his friends was in poor judgment and contrary to AMC, but that in itself does not absolve AMC of liability for his acts.
AMC Entertainment/Lowes failed to establish, as a matter of law, that Adams’s conduct was motivated solely by the desire to respond to a perceived slight from Norwood and his friends. A jury could perhaps conclude that Adams’s actions towards Norwood were so motivated. Still, it could also find that he acted primarily with his employer’s interests in mind by ensuring that a group of individuals that he perceived as unruly and perhaps even violent left the theater before they engaged in more serious misconduct.
For 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, the vicarious liability determination did not turn on whether Adams’s employer could have specifically anticipated that Adams might employ a baton that he happened to have in his pocket or a pellet gun that he had in his vehicle in an attempt to escort patrons off the premises– but rather, whether the general type of conduct—menacing, in essence—was reasonably foreseeable given the nature of Adams’s responsibilities. A jury could determine that it was.
AMC Entertainment/Lowes failed to demonstrate their prima facie entitlement to judgment as a matter of law, dismissing the vicarious liability cause of action. So those branches of their motion which were for summary judgment dismissing the cause of action alleging vicarious liability insofar should have been denied…, concur.