Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Scope of Employment.

2010 City of Alexandria v. J-W Enterprises, Inc., 279 Va. 711, 691 S.E.2d 769.
Police officer, while working for a restaurant, follows patrons out of restaurant when they did not pay. Patrons then enter car and drive car towards officer who believes that they have then committed a misdemeanor and fires at the vehicle. City, in attempting to seek contribution from restaurant for actions of police officer acting as a restaurant employee is barred from contribution because the officer in shooting was performing a police function and therefore doing so on behalf of the city.

2005 Butler v. Southern States Coop., Inc., 270 Va. 459, 620 S.E.2d 768.
Plaintiff alleged assault by fellow employee. Plaintiff further alleged that the assault was the result of that fellow employee’s personal attraction to her. Where the assault is personal to the employee and not directed against her as an employee or because of her employment, then her injury does not arise out of the employment and therefore, is not covered by the Worker’s Compensation Act. The fellow employee may still be within the scope of the employment however.

2010 City of Alexandria v. J-W Enterprises, Inc., 279 Va. 711, 691 S.E.2d 769.
Police officer, while working for a restaurant, follows patrons out of restaurant when they did not pay. Patrons then enter car and drive car towards officer who believes that they have then committed a misdemeanor and fires at the vehicle. City, in attempting to seek contribution from restaurant for actions of police officer acting as a restaurant employee is barred from contribution because the officer in shooting was performing a police function and therefore doing so on behalf of the city

2000 Gina Chin & Assocs. v. First Union Bank, 260 Va. 533, 537 S.E.2d 573.
Teller at bank engaged in scheme to deposit forged checks into accounts for fraudulent purposes. Issue was whether teller was acting within scope of employment. Trial court improperly struck plaintiff’s evidence at conclusion of plaintiff’s case as to scope of employment. This issue should have been submitted to jury for determination. Proof of employment relationship creates prima facie rebuttal presumption of employer’s liability unless deviation from employer’s business is slight on one hand or marked and unusual on other hand, then question is for jury to determine. In this case, it is clear that employee was acting out of self interest and clearly violating employer’s rules. Nevertheless, it is clear that in doing so, he was performing normal function of bank teller in accepting checks for deposit. Plaintiff having established employment relationship was entitled to have the case go forward.

2000 Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 539 S.E.2d 426.
Plaintiff alleges that she was assaulted in store by employee. When plaintiff presents evidence to show existence of employer/employee relationship, she has established prima facie case triggering presumption of liability. Burden of production then shifts to employer who may rebut presumption by showing employee departed from scope of employment. If evidence leaves in doubt question of whether employee acted within scope of employment, issue is to be decided by jury. In this case, trial court granted summary judgment on the pleadings which was error.

1999 Giant of Md., Inc. v. Enger, 257 Va. 513, 515 S.E.2d 111.
Plaintiff was patron in store when he was struck by store employee who was assaulting fellow employee at time. Employer is liable for tortious acts of its employee if that employee was performing employer’s business and acting within scope of employment when acts were committed. The precise issue is whether service itself, in which the tortious act was done, was within ordinary course of such business and was in scope of such authority. Jury instruction that allows jury to find employer liable for any tort committed during the employee’s employment, even if service that employee was performing when he committed the tortious act was not within ordinary course of employer’s business or not within the scope of employee’s authority, is incorrect statement of law.

1996 Plummer v. Center Psychiatrist LTD, 252 Va. 233, 476 S.E.2d 172.
Psychologist had sexual intercourse with patient in course of providing counseling services. Issue is whether this conduct was within scope of employment. Jury issue created in that regard. Employer is liable for acts of its employees if employee was performing employer’s business and acting within scope of employment when act committed. Once employer-employee relationship has been established, burden is on employer to prove that employee was not acting within scope of employment. If evidence leaves question in doubt, then it becomes a jury issue. Willfulness or wrongful motive, which moves employee to commit act, does not of itself excuse employer’s liability. Test of liability is not motive of employee but whether act was within scope of duties of employment and in execution of service for which he was engaged.

1995 Commercial Bus. Sys. v. Bellsouth Servs., 249 Va. 39, 453 S.E.2d 261.
Contracting officer improperly awarded contracts of Bell South for personal gain. This conduct was committed while the employee was performing his duties as contract negotiator and in the execution of services for which he was employed. Jury issue presented as to scope of employment, even though motive in this instance was personal, i.e., to advance self-interest.

1991 Sayles v. Piccadilly Cafeterias, 242 Va. 328, 410 S.E.2d 632.
Plaintiff had attended company Christmas party which was offered as fringe benefit for employees. Attendance was not mandatory. He was involved in automobile accident with fellow employee approximately five minutes from company location. Fellow employee had become intoxicated at party. Burden is on plaintiff to show master-servant relationship existed at time of injury. Act is within scope of employment if it is fairly and naturally incident to business and it is done while employee is engaged upon master’s business and is done with a view to further master’s interest or for some impulse or emotion that naturally grew out of or was incident to the attempt to perform master’s business and did not arise wholly from some external, independent and personal motive on part of employee.

1988 Stacy v. J. C. Montgomery Ins. Corp., 235 Va. 328, 367 S.E.2d 499.
Insurance agency retained to obtain property coverage. Agent performed this function. Agent in this case is special agent; i.e., one who is authorized to do one or more specific acts. Policy in this case had lapsed. Agent is not liable for this since he was retained only to obtain insurance.

1987 Kensington Assocs. v. West, 234 Va. 430, 362 S.E.2d 900.
Security guard on construction site accidentally shoots other worker. Guard had consumed couple of beers and was engaged in horseplay at time of shooting. Act is within scope of employment if: (1) it was expressly or impliedly directed by employer or is naturally incident to business and (2) it was performed, although mistakenly or ill advisedly, with intent to further employer’s interest or for some impulse or emotion that was natural consequence of attempt to do employer’s business and did not arise wholly from some external, independent and personal motive on part of employee to do act upon his own account. Guard in this case had been instructed to stay away from these workers, not to drink on job and at time of shooting he had completed his security check of building. When guard drew his gun, he did so to “play around”, therefore outside scope of employment as matter of law.

1986 Thurston Metals & Supply Co. v. Taylor, 230 Va. 475, 339 S.E.2d 538.
Thurston is President of Thurston Metals. Thurston is alleged to have injured plaintiff at golf outing sponsored and paid for by company. Plaintiff was guest of company. Thurston was agent of company at time of accident.

1978 Branch v. Virginia Emp. Comm’n, 219 Va. 609, 249 S.E.2d 180.
Virginia Code § 60.1-58(b) [now § 60.2-618] denotes that employee is guilty of misconduct connected with his work when he deliberately violates company rule. Duties owed employee, mitigating circumstances, burdens and reasons for rule discussed. Case dealt with three garnishments within 12-month period.

1974 Charlottesville Music Center, Inc. v. McCray, 215 Va. 31, 205 S.E.2d 674.
Status of employee under Workers’ Compensation Act turns on whether person performed work under contract for hire.

1971 Broaddus v. Standard Drug Co., 211 Va. 645, 179 S.E.2d 497.
Drug company guard attempted to apprehend plaintiff who had fled police officer. Guard pursued plaintiff, then shot him. In general terms act is within scope of employment if: (1) it is incident to business; and (2) it be done while servant was engaged upon master’s business

1970 Commercial Union Ins. Co. v. St. Paul Fire & Marine Ins. Co., 211 Va. 373, 177 S.E.2d 625.
Reference is made to general rule that employee who uses his employer’s motor vehicle to go from his place of work to place to eat is not within scope of his employment in absence of some special business benefit to his employer.

1969 Brown v. Reed, 209 Va. 562, 165 S.E.2d 394.
Plaintiff injured on parking lot by fellow employee at place of employment. Fellow employee in course of employment even though he was leaving work at time.

1962 United Bhd. of Carpenters v. Humphreys, 203 Va. 781, 127 S.E.2d 98.
Assault case. Where agency relationship established, burden is then on principal to prove agent not within scope of authority. Act is within scope of employment if naturally incident to business and if done with view to further business or from impulse naturally incident to attempt to perform it.

1962 Conner v. Bragg, 203 Va. 204, 123 S.E.2d 393.
Workers’ compensation case. Employee was operating machine he had been told not to operate and was injured. He was not injured in course of employment.

1960 Abentathy v. Romaczyk, 202 Va. 328, 117 S.E.2d 88.
Employee gets into fight with another driver over who caused accident. As matter of law, employee outside scope of employment.

1960 City of Richmond v. Johnson, 202 Va. 33, 115 S.E.2d 910.
Workers’ compensation case. Deputy constable accidentally shot by fellow employee while on duty. Accident held to have arisen in course of employment.

1960 Turner v. Burford Buick Corp., 201 Va. 693, 112 S.E.2d 911.
When relation of master-servant established, burden is on master to prove servant not within scope of employment.

1956 Slaughter v. Valleydale Packers, 198 Va. 339, 94 S.E.2d 260.
Where relationship of master and servant has been established, burden is on master to prove that servant was not within scope of employment. Where it is doubtful whether servant, in injuring third person, was acting within scope of employment, doubt will be resolved against master at least to extent of requiring question to be submitted to jury. Act is within scope of employment if: (1) it is something fairly and naturally incident to business; (2) if done while servant is engaged in master’s business and is done, although mistakenly or ill-advisedly, with view to further master’s interest or from some impulse which was incident to attempt to perform master’s business.

1956 Dozier v. Morrisette, 198 Va. 37, 92 S.E.2d 366.
Insurance adjuster spoke with jurors during trial. Employer had no knowledge of such until days later. Employee not within scope of his authority.

1954 Alvey v. Butchkavitz, 196 Va. 447, 84 S.E.2d 535.
Where relationship of master-servant has been established, burden is on master to prove servant not within scope of his employment when he committed act complained of. When it is doubtful, doubt will be resolved against master because he set servant in motion.

1954 Cary v. Hotel Reuger, Inc., 195 Va. 980, 81 S.E.2d 421.
Assault by servant of defendant who shot and killed plaintiff’s decedent in elevator. Test of liability is not whether service in which act was committed was in ordinary course of employer’s business, but rather whether tortious act was fairly and naturally incident to business of employer and done with view to further master’s interests or from some impulse or emotion which naturally grew out of or was incident to attempt to perform master’s business, and did not arise from some external, independent and personal motive on part of servant to do act upon his own account.

1953 Meek v. Graybeal, 195 Va. 381, 78, S.E.2d 593.
Plaintiff injured when 11-year-old employee of defendant backed jeep of defendant against him. Employee only hired to do odd jobs and help load jeep from time to time. Defendant neither directed employee to drive jeep nor could authority to do so be implied from such employment. Plaintiff had no recourse under doctrine of respondeat superior.

1951 Bryant v. Bare, 192 Va. 238, 64 S.E.2d 741.
Employer is not responsible for negligent acts of employee committed while employee has temporarily abandoned business of his employer and is on mission of his own. If purpose of serving master’s business actuates servant to any appreciable extent, master is subject to liability, if act otherwise is within service. Relation of master and servant is not restored until employee has returned to place where deviation occurred or to corresponding place.

1950 McNeill v. Spindler, 191 Va. 685, 62 S.E.2d 13.
When relationship of master servant established, then burden on master to prove servant not within scope at time he committed tort. Previous use of vehicle by employee for personal uses does not establish agency.

1950 Manuel v. Cassada, 190 Va. 906, 59 S.E.2d 47.
Test is: was act done by virtue of employment and in furtherance of master’s business.

1949 Butler v. Nolde Bros., 189 Va. 932, 55 S.E.2d 36.
Workers’ compensation case. Plaintiff killed while operating employer’s vehicle. Primary purpose of trip was personal and only incidentally related to business. Test is: if work of employee creates necessity for travel, he is in course of employment although he is serving at same time some purpose of his own.

1948 Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363.
Bus driver punches motorist. Act is within scope of employment if fairly and naturally incident to business, and done while engaged in master’s business with view to further master’s interest. Jury found defendant within scope.

1948 Norfolk Bus Term. v. Sheldon, 188 Va. 288, 49 S.E.2d 338.
When special police officer acts in discharge of his public duty in attempt to enforce criminal law, then his acts are not imputable to employer. But when employee is performing duty assigned by his employer, then jury question is presented as to whether master-servant relationship exists.

1945 Monumental Motor Tours v. Eaton, 184 Va. 311, 35 S.E.2d 105.
Court has repeatedly held in workers’ compensation cases that employee going to or from place where his work is to be performed, is not engaged in any service growing out of and incidental to his employment. Employee is not within scope of his employment when on his way home for lunch.

1944 Hoover v. Neff, 183 Va. 56, 31 S.E.2d 265.
Employee left disabled truck on road at night without lights. He was within scope of employment.

1943 Raven Red Ash Coal Co. v. Griffith, 181 Va. 911, 27 S.E.2d 360.
If employee voluntarily and unnecessarily leaves his place of employment and assumes position of peril merely for his own pleasure, he becomes either trespasser or at best mere licensee. Where employee stops work for short while to satisfy his physical need, he is still in master’s employment.

For more information on scope of employment see the pages on Wikipedia.