What happens when a company employee physically assaults and injures a customer while that customer is on the company’s premises, such as in a store? The first consideration is for what purpose that customer is on the company’s premises? Is the customer shopping? Is he trespassing? Obviously, the business in question has a higher duty to protect those it invites onto their premises to make money. But what if, in service to his master, an employee believes a customer is trespassing, even though he may have initially entered the premises legitimately, and forcibly ejects that customer from the premises, causing injury? Has there been a civil wrong committed against that customer?
The answer, as is almost always the case in civil cases, depends on the circumstances. Let us consider a specific fact pattern based on a current case this office is handling. In that case our client, call him Jack, was shopping at a certain convenience store, which we shall call Quickie-Mart, when he and the store’s clerk, call him Jim, got in a verbal altercation. Jack, who was with his girlfriend Jill, exited the store after dropping some choice words on Jim, who was none too pleased with Jack’s invective.
In fact, Jim was so upset he followed Jack out into the parking lot and continued the argument. However, Jack upped the ante, pulling a three inch blade out and threatening Jill with it. Jack, incensed and feeling threatened, charged at Jack and knocked him down. Jim, fuming and embarrassed, got up, charged Jack and stabbed him several times, twice in the upper torso, causing serious injury.
Seeing the melee, Jim’s co-worker called the police. When the police responded, they were met in the parking lot just outside the Quickie-Mart with Jim wielding a bloody knife and Jack bleeding severely from several wounds to his upper torso. Jim informs the police that he and Jack got in an argument because Jim believed Jack had been warned not to return to that Quickie-Mart in the past and that, as a result, Jack was trespassing on the premises. After a brief investigation, Jim was arrested and charged with several felony counts, including battery with a deadly weapon and battery causing substantial bodily harm.
Jim is subsequently bound over to District Court for trial on those charges. However, after some controversy over the racial composition of the jury (Jim is Caucasian while Jack is African-American and the Defense successfully challenged three African-American jurors making the composition of the jury overwhelmingly Caucasian), Jim is acquitted of all charges presumably because the jury believed Jim was simply defending himself. Nevertheless, a complaint is filed in civil court and the matter is now pending trial before another jury, this one for money damages. What result?
The first question is who may be sued? Here, it is clear that Jim may be liable for the injury he caused Jack. In this case, Jim may have committed a battery upon Jack’s person. In Nevada, a battery is defined as a harmful or offensive touching and is commonly found where the defendant intentionally lays hands on Plaintiff without consent and with the intent to either harm or offend the Plaintiff.
Here, Jim clearly committed a battery upon Jack as it would be absurd to say that Jack consented to being stabbed by Jim.
However, the question remains as to whether or not Jim has any defenses to such an allegation. Usually, a defendant charged with battery, in either criminal or civil court, relies on a claim of self-defense to avoid liability. In order to successfully claim self-defense a defendant must show that he used reasonable force to defend himself from harm, actual or threatened. This begs the question, what is reasonable force? Simply put, reasonable force is that force which the reasonable person would employ to defend himself.
What would a reasonable person do under the circumstances? Generally, the reasonable person would not use any more force than is necessary to repel an assault. Therefore, it would be unreasonable for a person to shoot another with a machine gun when he is being assaulted with fists. In other words, it is generally understood that one does not bring a gun to a knife fight, for that would be unfair and overkill.
Under the circumstances, Jim would likely argue that he was attacked by Jack, a younger man, despite the fact that he was wielding a knife and so Jim justifiably felt in fear of his life. On the other hand, Jack would argue that Jim was the primary aggressor and had no business following him out of the store and threatening him with a knife and that, if anything, it was Jack that was defending himself from a knife wielding madman. All things considered, it seems that Jim is in the wrong here as it is unreasonable for him to chase a customer out of the store wielding a knife when, at worst, that customer was simply trespassing. Jim’s conduct is particularly unreasonable in light of his alternatives: Jim could have and should have called the police if he believed Jack was committing a crime.
Having resolved Jim’s liability, what of Quickie-Mart? Generally speaking, an employer is responsible for negligent acts or omissions by their employees committed in the course of employment. For an act to be considered within the course of employment it must either be authorized or so connected with an authorized act that it can be considered a method, though an improper method, of performing it. Thus, in general, an employer is not liable for the intentional acts of its employee, such as a battery committed against a customer, since under most circumstances such conduct is neither authorized by an employer or in legitimate service to that employer.
However, in Prell Hotel Corp. v. Antonacci, the Supreme Court of Nevada held that an employer was vicariously liable when the employee, a blackjack dealer, hit a customer in the face while dealing a game because the battery occurred within the scope of the task assigned to the dealer, that of dealing blackjack. Therefore, under Nevada law it is likely that Qucikie-Mart may be held liable for the intentional tort committed by its employee.