This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-623

 

William G. Wilson,

 Appellant,

vs.

Stock Lumber, Inc., a Wisconsin corporation,
d/b/a/ Stock Lumber, and
Brent Joseph Rau,
Respondents.

 

Filed October 9, 2001

Affirmed

Peterson, Judge

 

Dakota County District Court

File No. C2006380

 

Wilbur W. Fluegel, Fluegel Law Office, 701 Fourth Avenue South, Suite 1260, Minneapolis, MN  55415-1815; and

 

Walter E. Sawicki, Sawicki Neese & Phelps, P.A., 1811 Weir Drive, Suite 275, Woodbury, MN  55125 (for appellant)

 

Marlene S. Garvis, John M. Kennedy, Jr., Jardine, Logan & O’Brien, P.L.L.P., 444 Cedar Street, Suite 2100, St. Paul, MN  55101-2160 (for respondent Stock Lumber, Inc.)

 

Joseph Kaminsky, 260 Brookdale Corporate Center, 6300 Shingle Creek Parkway, Brooklyn Center, MN  55432-2183 (for respondent Brent Rau)

 

            Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a summary judgment, appellant William G. Wilson argues that under the doctrine of respondeat superior, respondent Stock Lumber, Inc., is vicariously liable for an assault committed by its employee in a road-rage incident.  Because appellant failed to produce evidence that the employee’s conduct was foreseeable, we affirm.

FACTS

Respondent Brent Joseph Rau was an employee of Stock Lumber.  When Rau was hired in April 1997, his driving record included three speeding tickets and convictions for reckless driving, improper lane change, failure to obey a semaphore, and fleeing a police officer.[1]  Rau did not disclose his complete driving history to Stock before he was hired.[2]  There was no evidence that Rau engaged in any assaultive behavior before the road-rage incident.

In October 1997, Rau was driving on the freeway after making a delivery.  Wilson came onto the freeway, and when he merged into the left lane, Rau was forced to brake.  Rau made a rude hand gesture toward Wilson, and after more gestures by both drivers, they pulled over to the side of the road and got out of their vehicles.  Wilson approached Rau’s truck.  Rau assaulted Wilson, injuring him, and left the scene.  Rau was arrested for assault and pleaded guilty. 

D E C I S I O N

On appeal from a summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We must view the evidence in the light most favorable to the nonmoving party and resolve any doubts as to the existence of an issue of material fact against the moving party.  Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).  But, “the party resisting summary judgment must do more than rest on mere averments.”  DLH Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  “[A] ‘genuine issue’ of material fact for trial ‘must be established by substantial evidence.’”  Id. at 70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).   We review the district court’s interpretation of the law de novo.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

The only claim before us on appeal is Wilson’s claim that Stock Lumber is vicariously liable for injuries inflicted when Rau assaulted him.  The district court reached the following conclusions of law with respect to this claim:

2.         In this case there is no dispute that Rau’s intentional tort occurred within the work-related limits of time and place.  However, there is no evidence that a) Rau’s conduct was of a kind authorized by Stock Lumber or reasonably related to his employment, or b) Stock Lumber should have foreseen Rau’s conduct given the nature of the employment and the duties relating to it.

 

3.         The only evidence offered by [Wilson] for the purpose of attempting to create a fact question on the issue of foreseeability is Rau’s uncontested traffic record.  The court finds this insufficient to raise a fact question for the jury on the issue of whether Stock Lumber should have foreseen Rau’s assault of [Wilson].

 

* * * *

            7.         The court finds [Wilson] has produced insufficient evidence to create a fact issue regarding whether Stock Lumber could foresee Rau’s assaultive behavior.

 

Wilson argues that it was an error of law for the district court to conclude that a delivery driver’s assault of another motorist during the course of his job was not reasonably related to his employment. 

[A]n employer is liable for an assault by his employee when the source of the attack is related to the duties of the employee and the assault occurs within work-related limits of time and place.

 

Lange v. Nat’l Biscuit Co., 297 Minn. 399, 404, 211 N.W.2d 783, 786 (1973).

In Lange, a cookie salesman making a call at a grocery store got into an argument with the store manager.  Id. at 400-01, 211 N.W.2d at 784.  The argument escalated until the salesman became uncontrollably angry and assaulted the manager.  Id. at 401, 211 N.W.2d at 784.  In concluding that the store manager could recover damages under the theory of respondeat superior, the supreme court stated,

“ [T]he master is liable for any such act of the servant which, if isolated, would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to the master, that both acts are treated as one indivisible tort, which, for the purposes of the master’s liability, takes its color and quality from the earlier act.”

 

Attempts, in cases where altercations arise, to distinguish the doctrine of respondeat superior on the theory that at some point the argument becomes personal and not related to the scope of employment are unduly restrictive and attribute to the employee, enraged by reason of his employment, a rational decision, that he is crossing some imaginary line to pursue personal business.  Whether the nature and character of the dispute change from a work-related incident to a personal assault, and, if so, when they do, is not dispositive of the issue.

 

Id. at 404, 211 N.W.2d at 785-86 (quoting Gulf, C. & S.F. Ry. Co. v. Cobb, 45 S.W.2d 323, 326 (Tex. Civ. App. 1931)). 

The salesman’s call at the grocery store was the act of a servant that was imputable to the master.  The assault was immediately connected with, and grew out of, the sales call.  Consequently, the sales call and the assault were treated as one indivisible tort.  See id. at 404-05, 211 N.W.2d at 786 (explaining holding).  Similarly, Rau’s assault of Wilson was immediately connected with, and grew out of, Rau’s driving on the freeway.  Driving on the freeway was an integral part of Rau’s job.  Therefore, the driving and the assault are treated as one indivisible tort. 

            But the fact that the driving and the assault are treated as one indivisible tort is not sufficient to impute liability for the assault to Stock.  Supreme court opinions that followed Lange indicate that to hold an employer vicariously liable for an employee’s intentional tort under the respondeat superior doctrine, there must be evidence that the employee’s conduct was foreseeable.

In Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 309-11 (Minn. 1983), the supreme court considered the liability of a clinic for damages caused by an employee-psychologist who engaged in sexual misconduct with patients during therapy.  In cases brought by two patients and tried separately, the juries found that the clinic was not liable under respondeat superior.  Id. at 307.  In one case, the plaintiff moved for JNOV on the issue of whether the clinic was liable under respondeat superior, and in the other, the plaintiff moved for a new trial on this issue.  Id.  Both motions were denied.  Id.  The supreme court reversed the orders denying these motions and remanded for new trials based on an error in the jury instructions.  Id. at 311.  

The court acknowledged that the patients argued that the psychologist’s acts were within the scope of employment as a matter of law and that the clinic argued that the psychologist’s acts were outside the scope of employment as a matter of law.  Id.  But the court declined to determine as a matter of law that the psychologist’s conduct was either within or outside the scope of employment.  Id.  Instead, because there was testimony that sexual relations between a psychologist and a patient was “a well-known hazard and thus, to a degree, foreseeable and a risk of employment,” the court concluded that “it should be a question of fact whether the acts of [the psychologist] were foreseeable, related to and connected with acts otherwise within the scope of employment.”  Id. (citation omitted).

In P.L. v. Aubert, 545 N.W.2d 666, 667-68 (Minn. 1996), the supreme court again addressed the issue of an employer’s vicarious liability for the misconduct of an employee.  P.L. involved a school district’s liability for the misconduct of a teacher who engaged in sexual contact with a minor student.  Id. at 667.  The court invoked the two-prong test established in Lange, but it distinguished the case from Marston because unlike Marston, in P.L. there was

no evidence that such relationships between teacher and student are a “well-known hazard”; thus foreseeability is absent.  While it is true that teachers have power and authority over students, no expert testimony or affidavits were presented regarding the potential for abuse of such power in these situations; thus there can be no implied foreseeability.

Id.  at 668. 

            The court held

that in this case the employer is not liable for the intentional torts of its employees even though the acts occurred within work-related limits of time and place, where such acts were unforeseeable and were unrelated to the duties of the employee.  By this holding, we do not change the test set out in Marston and Lange; we simply clarify that because the acts were not foreseeable by the school district, it cannot be held liable in this instance.

 

Id.

More recently, in Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 913 (Minn. 1999), the supreme court reversed a summary judgment in favor of a group home on a claim by a resident that the home was vicariously liable for a counselor’s sexual assault of the resident.  The district court had concluded that an affidavit submitted by the plaintiff was insufficient to create a factual question as to whether the counselor’s conduct was foreseeable by the group home because the affidavit stated no opinion whether it was foreseeable that the particular counselor would commit sexual abuse.  In reversing, the supreme court explained:

In response to [the group home’s] motion for summary judgment, [the plaintiff] submitted the affidavit from * * * , a purported expert in the group home industry, expressly stating that “inappropriate sexual contact or abuse of power in [group home] situations, although infrequent, is a well known hazard in this field.”  (emphasis added).  This sworn statement, although somewhat conclusory and lacking specific examples, is nearly identical to the testimony we relied on in Marston in holding that a question of material fact existed on the issue of foreseeability.  Moreover, this affidavit is the exact type of evidence of foreseeability we found to be lacking in Aubert.

 

Id. at 911-912 (citations omitted).

            The supreme court found that the affidavit was sufficient to create a factual question.  The court explained:

            We concede that [the expert’s] affidavit does not contain information specific to [the counselor] or [the group home].  Such information, however, is not necessary to establish foreseeability in respondeat superior cases.  * * *

“‘[F]oreseeability’” in this context must be distinguished from ‘foreseeability’ as a test for negligence.  In the latter sense ‘foreseeable’ means a level of probability which would lead a prudent person to take effective precautions whereas ‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.”

 

Id. at 912 (footnote omitted) (quoting Rodgers v. Kemper Constr. Co., 124 Cal. Rptr. 143, 148-49 (Cal. Ct. App. 1975)).

            The court concluded:

            While the above evidence is not conclusive proof that [the counselor’s] acts were within the scope of his employment, we hold, as we did in Marston, that the evidence does raise a question of fact as to whether [the counselor’s] wrongful acts were foreseeable, related to and connected with acts otherwise within the scope of employment.

 

Id. at 913.

Finally, in Hagen v. Burmeister & Assocs., __ N.W.2d __, __, 2001 WL 869328, at *6 (Minn. Aug. 2, 2001), an opinion that was released after oral arguments were heard in the present case, the supreme court explained that Marston, P.L., and Fahrendorff indicate “that an important consideration in determining whether an act is related to the duties of employment is whether the act was foreseeable.”  In Hagen, an insurance agent violated a noncompete agreement that he had entered into with a former employer and was found to have violated the Minnesota Uniform Trade Secrets Act (UTSA).  Id. at __, 2001 WL 869328, at *2.  The former employer argued that the agent’s new employer was vicariously liable for the agent’s violation of the UTSA.  The supreme court stated that the former employer

was required to introduce at trial some evidence tending to show that [the employee’s] tortious act was foreseeable as that term is used in vicarious liability law: for example, evidence showing that the risk of employees misappropriating trade secrets is a well-known hazard in the insurance industry.  * * *  [The former employer] introduced no such evidence at trial.  We will not assume, absent introduction of some evidence, that UTSA violations are a common hazard in the insurance industry.  [The former employer’s] failure to introduce any evidence establishing that it is foreseeable for insurance industry employees to misappropriate trade secrets, and thus its failure to raise a fact question with respect to that issue, is fatal to its respondeat superior claim.

Id. at __, 2001 WL 869328, at *6 (citations omitted). 

Wilson argues that road-rage incidents such as the one that occurred here are foreseeable as a matter of law.  But we see no basis for distinguishing Rau’s tortious conduct from the conduct of the teacher in P.L. or the insurance agent in Hagen.  In each of those cases, the employee’s conduct may have been imaginable.  But the standard for establishing foreseeability for respondeat superior is whether the conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.  Absent any evidence indicating that Rau could be expected to engage in assaultive conduct or that road rage is a well-known hazard in the delivery business, we cannot conclude as a matter of law that Rau’s conduct was foreseeable.

The district court did not err when it granted Stock Lumber summary judgment because Wilson failed to present sufficient evidence to establish a fact question whether Rau’s conduct was foreseeable.

            Affirmed.

 



[1] The convictions for fleeing an officer and reckless driving occurred when Rau was between the ages of 18 and 22, six years before this incident.

[2] Stock presented evidence that when it hired Rau, it only knew about his speeding tickets, the improper use of lane, and the failure to obey a semaphore.  Wilson does not dispute that Rau did not disclose his complete driving record before he was hired.