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USA Petroleum Corporation v. Hines12/17/1999
er car facing in the wrong direction and that the police could give her a ticket.
Hines did not go to the station to purchase gasoline. He went there to confront Davis about the way Davis had spoken to his wife. Davis became angry and lost his temper after Hines provoked him. He first pushed Hines toward his automobile and said he was going to telephone the police. It is possible that this action could be construed as "repelling intruders," which would have been within the line and scope of Davis's employment. However, when Hines got back into his car and pulled it over to the side of the booth, Davis began beating on the car with his fists and with a broom handle. Hines sustained injuries to a shoulder when he got out of the car and Davis shoved him back into the car. Given this further action, I cannot agree that the evidence could support a verdict finding that Davis was "repelling intruders" from the cashier's booth, as USA Petroleum's company policy required.
The majority indicates that there was substantial evidence from which the jury could conclude that Davis was acting within the line and scope of his employment, but it does not indicate what that evidence was. In determining that the punitive award against USA Petroleum was warranted, the trial court stated: "There was also evidence presented that USA knew or should have known of Davis' unfitness for employment." See ___ So. 2d at ___. However, the evidence referred to should not even be considered until it is determined that Davis was in fact acting within the line and scope of his employment. Evidence indicating that Davis had been fired from two jobs for misconduct, that he had been arrested (and exonerated) on charges of sexual misconduct, and that he had received psychiatric treatment for a violent outburst while he was in high school has no bearing on whether USA Petroleum should be held vicariously liable. This evidence would be relevant if Hines were claiming negligent or wanton hiring, training, or supervision. Hines had made such claims, but he voluntarily dismissed them before the case was submitted to the jury. I do not believe the jury had before it substantial evidence indicating that Davis committed the assault on Hines while acting within the line and scope of his employment; therefore, I conclude that USA Petroleum should not be held vicariously liable.
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