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Medina v. Graham''s Cowboys Inc.2/4/1992
HARTZ, Judge.
On December 13, 1984, Steven Trujillo assaulted C.K. "Rocky" Medina (Medina) in the parking lot of Graham's Cowboys, Inc. (Cowboys). Medina filed a complaint for personal injury against Trujillo and Cowboys on April 1, 1985. Medina raised three theories of liability against Cowboys: (1) Cowboys was liable under the doctrine of respondeat superior because Trujillo was acting within the course and scope of his employment with Cowboys when he assaulted Medina, (2) Cowboys was liable for negligently hiring and supervising Trujillo, and (3) Cowboys was liable for failure to comply with its duty to provide safe premises for its patrons. After a non-jury trial the district court rejected the respondeat superior claim but held Cowboys liable on the other two theories. Cowboys appeals on the grounds that (a) liability was not proper under either theory, (b) substantial evidence did not support the damage award, and (c) under the doctrine of comparative fault, Cowboys should have been held liable for only a portion of Medina's damages. We affirm.
I. LIABILITY
Because we can sustain the judgment under Medina's negligent hiring theory, we need not address the claim of premises liability.
The district court made the following findings concerning the negligent hiring and training of Trujillo:
10. Trujillo's employment with Cowboys was that of a doorman.
11. The duties of a Cowboys doorman included assisting in maintaining peace and order in Cowboys, using force if necessary.
12. Cowboys doormen were necessarily in constant contact with members of the public, most of whom would have been drinking and many of whom might tend to be argumentative.
....
15. Trujillo had been involved in several fights at Cowboys and in the parking lot as a Cowboys patron.
16. Trujillo was unfit to be employed as a Cowboys doorman.
17. Cowboys knew or should have known that Trujillo had previously been involved in fights at Cowboys and elsewhere and that he was unsuitable for employment considering the risk he posed to those with whom he would foreseeably come into contact during his employment.
We accept these findings as correct because Cowboys' brief-in-chief does not attack these findings or challenge the contention that Cowboys was negligent in hiring Trujillo. In addition, the district court concluded:
7. Trujillo's attack on Plaintiff was foreseeable by Defendant Cowboys.
8. Cowboys was negligent in hiring and training Trujillo, which negligence was the proximate cause of Plaintiff's injuries.
Cowboys predicates its challenge to the negligent-hiring theory on the ground that Trujillo was not on duty the night of the assault. (There was also a substantial dispute at trial as to whether Trujillo had ever been hired by Cowboys, but there was clearly sufficient evidence to justify the district court's finding in that regard, and Cowboys does not press that point in its brief-in-chief.) Because Trujillo was not on duty, Cowboys argues, Medina did not meet Trujillo as a direct result of the employment, and therefore Cowboys had no duty to Trujillo, the act of hiring Trujillo could not be the proximate cause of Medina's injuries, and Cowboys could not have reasonably foreseen that hiring Trujillo would result in the injury to Medina.
Even if he was not on duty, however, Trujillo was present on the premises at Cowboys' request. Cf. Restatement (Second) {PA}
Page 473} of Agency ยงยง 219 cmt. d, 233 cmt. c (1957) [hereinafter Restatement (Second) of Agency] (
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