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Eichelberger v. Sidney11/3/2000
ichelberger's request several times. In opposition to National's motion, Ms. Eichelberger produced a portion of her deposition which includes the following testimony:
Q: All right. So you asked [Ms. Sidney] to put the video in the VCR for the children?
A: Yes, sir.
Q: Did she refuse?
A: Yes, sir. She said that she would do it when she got time. She was talking to her boyfriend.
Clearly, Ms. Sidney refused to perform the task that Ms. Eichelberger requested of her and Ms. Eichelberger assumed the task. Although it may have been within the scope of Ms. Sidney's duties to put a videotape in the VCR to entertain a client's children, it was not a reasonably foreseeable event that Ms. Sidney would violently attack Ms. Eichelberger because she chose to put in the videotape herself after Ms. Sidney refused to do so. The liklihood that Ms. Sidney would become enraged when her co-employee attempted to place a videotape in the VCR, especially after she had refused to do so herself, is not a "risk fairly attributable to the performance" of her duties. Baumeister, supra.
We note also that, in one respect, Ms. Eichelberger's deposition testimony differs somewhat from the scenario as described in her petition. In her deposition testimony, Ms. Eichelberger indicates that she did not, in fact, place the videotape in the VCR because Ms. Sidney blocked the recorder:
Q: Well, you never did put the movie in the VCR, then?
A: No. She had her hand over the hole. I couldn't.
We do not find, however, that this discrepancy creates an issue of material fact because the additional facts as described by Ms. Eichelberger in her deposition testimony actually worsen her position as it relates to any potential vicarious liability on the part of National. If Ms. Sidney did attempt to block or prevent Ms. Eichelberger from inserting the videotape, as the above-quoted testimony indicates, this fact does not support a finding that the subsequent intentional tort was employment rooted or that it was incidental to the performance of Ms. Sidney's duties. To the contrary, we believe that such facts remove any connexity between any possible employment issue and Ms. Sidney's violent attack on Ms. Eichelberger. Ms. Sidney's initial refusal to put in the videotape was not within the ambit of her assigned duties, but was actually contrary to them. See Scott v. Commercial Insurance Company, supra. Furthermore, we find that, if Ms. Sidney did block the VCR, thereby preventing Ms. Eichelberger from inserting the videotape, this action was certainly not in furtherance of National's objective of keeping customers satisfied by entertaining their children. Scott v. Commercial Union Insurance Company, supra. In fact, Ms. Sidney's actions actually obstructed the achievement of National's objective.
In reaching the conclusion that neither factor one nor two from LeBrane, supra, are present in the case sub judice, i.e., that the intentional tort was not employment rooted, nor was it reasonably incidental to the performance of Ms. Sidney's duties, we are guided not only by prior supreme court decisions, but also several decisions by our court and our brethren from various other circuits. In Baumeister, supra, an employee was sexually assaulted by a co-employee. The trial court held the employer vicariously liable and this court affirmed. The supreme court reversed, however, finding that neither the first nor second factor from LeBrane was present. Regarding the "incident to performance of duties" factor, the supreme court acknowledged that a supervisor may reasonably become involved in a dispute with a "recalcitrant underling." Baumeister,
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