Opinion
NO. 2015-CA-001597-MR
04-27-2018
PHILIP EDWARDS APPELLANT v. A&A TOWING, INC.; CHARLES J. GADDIE, JR.; AND JOSEPH B. WOLFE APPELLEES
BRIEFS FOR APPELLANT: Philip J. Edwards, Pro se Louisville, Kentucky BRIEF FOR APPELLEE, A&A TOWING, INC.: Evan B. Jones John G. McNeill Lexington, Kentucky BRIEF FOR APPELLEE, JOSEPH B. WOLFE: Mary K. Rives Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 12-CI-004642 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND THOMPSON, JUDGES. THOMPSON, JUDGE: Philip Edwards appeals from a summary judgment of the Jefferson Circuit Court in favor of A&A Towing, Inc. on his vicarious liability claim and his claims for negligent hiring and retention. He also appeals from a judgment of the Jefferson Circuit Court in favor of Charles J. Gaddie, Jr. and Joseph Wolfe following a jury verdict on his claims against them for assault and battery and property damage. He argues material issues of fact precluded summary judgment in A&A Towing's favor, the trial court committed evidentiary errors at trial, the jury instructions were improper, and the trial court inadvertently prejudiced the jury. Having reviewed the record and finding no error, we affirm.
The altercation leading to this action occurred on January 14, 2011, after Gaddie, driving an A&A Towing tow truck with his son, Wolfe, arrived at Gaddie's residence. The parties' version of the events that transpired differ.
According to Edwards, who is an attorney, he was photographing a business located near Gaddie's home on behalf of a client. Edwards was in his vehicle ready to back up when Gaddie used the tow truck to block him behind another vehicle, and Wolfe struck Edwards's vehicle with his hand. When Edwards exited the vehicle to assess any damage, Wolfe punched the trunk of Edwards's vehicle and physically attacked him. Gaddie then joined in the attack. Edwards fell and Gaddie sat on him and punched him while Wolfe kicked Edwards in the head.
According to Gaddie and Wolfe, Edwards was in Gaddie's front yard when they arrived. Gaddie asked Edwards why he was there, and Edwards did not respond. Gaddie asked again and Edwards responded. Using an expletive, Edwards told Gaddie it was none of his business. Wolfe then stepped behind Edwards's car to get the license plate number, and Edwards backed up in Wolfe's direction causing Wolfe to strike the vehicle with his hand. Edwards exited his vehicle and "sucker punched" Gaddie in the face. Gaddie and Edwards then engaged in a physical altercation. According to Wolfe, he stayed on the curb and did not participate in the altercation.
On January 13, 2012, Edwards filed a complaint against Gaddie and Wolfe alleging assault, battery and property damage. He also asserted claims against A&A Towing based on the theories of vicarious liability and negligent hiring and retention. After no action was taken by Edwards to advance his case for the next eighteen months, the trial court issued a sua sponte notice of intent to dismiss the complaint. After Edwards responded and objected to the dismissal, the trial court allowed the case to remain active.
A&A Towing filed a motion for summary judgment arguing that A&A Towing could be not be liable as a matter of law because neither Gaddie nor Wolfe were acting within the scope of employment or to further A&A Towing's business interest when the alleged intentional tortious acts were committed. In support of its motion for summary judgment, A&A Towing submitted affidavits filed by Gaddie and Wolfe. In those affidavits, both men stated they were not engaged in any activities in furtherance of A&A's business, were not responding to or being dispatched for any business of A&A Towing, not operating the tow truck for its benefit and had returned to the residence to eat lunch. They stated that the altercation with Edwards was a personal matter unrelated to any employment with A&A Towing. Wolfe further stated that he was not employed by A&A Towing on the date of the altercation. Edwards did not offer any facts to contradict those averred by Gaddie and Wolfe regarding their reason for being at the residence at the time of the altercation or the reason for that altercation.
The trial court concluded that Gaddie and Wolfe were not acting within the scope of their employment at the time of the altercation and, therefore, A&A Towing could not be vicariously liable for their actions. It further concluded that any injuries to Edwards could not have been proximately caused by any alleged negligence of A&A Towing in hiring or retaining Gaddie or Wolfe. Summary judgment was granted in A&A Towing's favor.
After the summary judgment was entered, Edwards took the depositions of Gaddie and Wolfe. Gaddie and Wolfe testified that A&A Towing does not have a garage or central facility. Gaddie retained possession of the tow truck keeping it at his residence or at the body shop next door. Gaddie testified that he transacts business for A&A Towing from his cell phone.
Although Wolfe maintains he was not employed by A&A Towing at the time of the altercation, it is undisputed that he later became employed by that company. For purposes of this appeal, we accept Edwards's allegation that Wolfe performed employment related activities on A&A Towing's behalf.
Believing this deposition testimony germane to his case against A&A Towing, Edwards filed a motion for the trial court to reconsider its summary judgment. The trial court denied the motion.
The case proceeded to trial against Gaddie and Wolfe. Edwards sought to introduce evidence for impeachment purposes that before and after the altercation, Gaddie and Wolfe had engaged in criminal drug activity using an A&A Towing tow truck. The trial court ruled that such evidence was irrelevant to the assault and battery and property claims and, consequently, inadmissible. Edwards also sought to introduce a repair estimate on his vehicle for the damage allegedly caused by Wolfe. Although the trial court permitted Edwards to testify as to the loss of fair market value as to the vehicle, it did not permit him to introduce the estimate ruling it was hearsay.
Gaddie and Wolfe filed counterclaims against Edwards, but they were dismissed for failure to identify any damages. --------
The jury instructions included a self-defense instruction for Gaddie and Wolfe as well as an apportionment instruction. The jury found in Gaddie's and Wolfe's favor under the self-defense instruction.
We first address whether A&A Towing was properly granted summary judgment. Summary judgment is an extraordinary remedy that "should only be used 'to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.'" Steelvest, Inc. v. Scansteel Service Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)).
"Stated generally, the doctrine of respondeat superior, also called vicarious liability, provides the legal rationale for holding a master responsible for a tort committed by his servant." Patterson v. Blair, 172 S.W.3d 361, 363 (Ky. 2005). The employer's liability is limited to those actions the employee commits within the scope of employment. Id. at 364. When the alleged tortious acts are intentional acts, the question of when such acts are within the scope of employment focuses on the motive for the employee's conduct. The rule in Kentucky is that when an employee acts from purely personal motives, the employer is not vicariously liable. Id. at 369. An employer cannot be vicariously liable "where the action of the employee was motivated by conceptions of personal wrong or the invasion of his private rights." Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 113, 194 S.W.2d 81, 82 (1946) (quoting J.J. Newberry Co. v. Judd, 259 Ky. 309, 82 S.W.2d 359, 362 (1935)).
While Gaddie drove an A&A Towing tow truck to his residence and, according to Edwards, the truck was used to block his vehicle, as Patterson emphasizes, vicarious liability does not rest merely on the use of an employer's property to commit an intentional tort but on the motive of the employee for committing the tort. Here, under any version of the altercation with Edwards, Gaddie and Wolfe were not acting within the scope of their employment when the altercation occurred. They were returning to the residence for lunch when they noticed Edwards's presence on or near the premises and then engaged in a physical altercation for reasons unrelated to A&A Towing's business. We conclude the trial court properly granted summary judgment in A&A Towing's favor on Edwards's vicarious liability claim.
The resolution of the Edwards's vicarious liability claim does not necessarily resolve his claims for negligent hiring and retention. Those claims are distinct from his vicarious liability claim in that they are based on the employer's own negligence.
In Oakley v. Flor-Shin Inc., 964 S.W.2d 438, 442 (Ky.App. 1998), the Court held that liability can be imposed on an employer who knew or should have known that the employee was unfit for the job in which he was employed and that his placement or retention in that job created a foreseeable risk of harm to a third person. Negligent hiring/retention claims differ from liability based upon respondent superior in that the law imposes a duty upon the employer to use reasonable care in the selection or retention of its employees. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 732 (Ky. 2009). To sustain the action, the plaintiff must establish the traditional negligence elements of a negligence claim; duty, breach, and consequent injury. Grubbs ex rel. Grubbs v. Barbourville Family Health Center, P.S.C., 120 S.W.3d 682, 686 (Ky. 2003).
The basis for Edwards's negligence claim against A&A Towing is that Gaddie and Wolfe had a history of criminal drug activity and A&A Towing did nothing to screen for criminal activity when it hired them. Edwards's argument lacks any indicia of persuasion.
A&A Towing could be liable for negligent hiring and retention only if it knew or had reason to know of Gaddie's and Wolfe's criminal drug history and, based on that history, their employment as tow truck operators created an unreasonable risk to a third party that one or both men would commit assault and battery. Any criminal drug-related activity was not even remotely connected to the alleged assault and battery. Based on the undisputed facts, summary judgment was appropriate.
The remaining issues concern alleged errors during the trial on the remaining claims against Gaddie and Wolfe. The first two issues concern the trial court's exclusion of evidence relating to Gaddie's and Wolfe's criminal activity and the exclusion of the repair estimate.
A trial court's decision to admit or exclude evidence is reviewed under the abuse of discretion standard. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Edwards argues the trial court erroneously excluded evidence regarding alleged criminal activity committed by Gaddie and Wolfe before and after the altercation on January 14, 2011. He sought to introduce evidence that Wolfe was indicted in 2011 for drug trafficking and was scheduled to plead guilty on January 25, 2011 and he was again arrested on June 7, 2011 and convicted. He also sought to introduce that Gaddie was cited for possession of drugs and scales while operating an A&A Towing tow truck. The sole reason he sought to introduce the evidence was to impeach the credibility of Gaddie and Wolfe.
"It is generally recognized that a witness may not be impeached with respect to a matter which is irrelevant and collateral to the issues in the action." Simmons v. Small, 986 S.W.2d 452, 455 (Ky.App. 1998) (quoting Commonwealth v. Jackson, 281 S.W.2d 891, 894 (Ky. 1955)). Evidence regarding Gaddie's and Wolfe's criminal drug-related activity was irrelevant and collateral to the issues presented. The trial court properly ruled such evidence was inadmissible.
Edwards also sought to introduce an unsigned, unverified, and hand-written 2011 repair estimate from a body shop to establish the amount of damages caused by Wolfe striking the vehicle with his hand. The trial court ruled it was inadmissible hearsay but permitted Edwards to testify as to the vehicle's loss of fair market value resulting from Wolfe striking the vehicle.
Kentucky Rules of Evidence (KRE) 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Absent an exception, hearsay is inadmissible. KRE 802.
While we agree with Edwards that expert testimony is not required to prove diminution in the fair market value of personal property, the estimate of the cost to repair the vehicle "is precisely the type of hearsay testimony defined in KRE 801(c) and prohibited by KRE 802." Burkhead v. Davis, 505 S.W.3d 784, 794 (Ky.App. 2016) (footnote omitted). In Burkhead, this Court held the repair estimates concerning the cost to repair a damaged vehicle "constituted inadmissible hearsay and were properly excluded." Id. We reach the same conclusion here and find no error.
Edwards argues that the trial court erroneously included in the jury instructions an instruction for Gaddie and Wolfe on self-defense. We disagree.
The trial court is required by law to instruct the jury upon every theory reasonably supported by the evidence to ensure a fair verdict. Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015). "Each party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it." Farrington Motors Inc. v. Fidelity Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky. 1957). Our review of a trial court's decision to give or decline a jury instruction is governed by the abuse of discretion standard. Sargent, 467 S.W.3d at 203.
The self-defense instruction was warranted by the evidence. Gaddie and Wolfe have consistently maintained that the altercation was prompted when Edwards backed his vehicle into the area where Wolfe was standing, and that Edwards struck the first blow to Gaddie by "sucker punching" him. There was no error.
Edwards also complains the trial court erroneously gave an apportionment instruction. However, any error is necessarily harmless because the jury found Gaddie and Wolfe were not liable and, therefore, did not reach the damages issue. Consequently, it is unnecessary for this Court to further address the issue.
Edwards's final argument is that the trial court inadvertently prejudiced the jury against his case by rephrasing questions asked by Wolfe's attorney on two occasions and dismissing the jury when he sought clarification of a ruling made by the trial court. We have reviewed the instances referred to by Edwards and find nothing to indicate that trial court acted in an impartial or a biased manner. The trial court simply clarified the questions and properly exercised its discretion to dismiss the jury during a bench conference. We find no error.
For the reasons stated, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Philip J. Edwards, Pro se
Louisville, Kentucky BRIEF FOR APPELLEE, A&A
TOWING, INC.: Evan B. Jones
John G. McNeill
Lexington, Kentucky BRIEF FOR APPELLEE, JOSEPH B.
WOLFE: Mary K. Rives
Louisville, Kentucky