Flores v. Autozone West, Inc.
Court of Appeals of the State of California, Fourth Appellate District Division of Three
Appeal from the judgment of the Superior Court of Orange County
Filed February 28, 2008 publication ordered March 27, 2008
Cite as 2008 SOS 1835

The Appellate Court Held in Favor of Retail Employer in a Tort Action

The alleged culprit who injured Juan Rodriguez Flores in the instant case is Erwin Gomez, who is an employee of AutoZone West, Inc.

The pertinent facts are as follows:

On February 15, 2004, Juan Rodriguez Flores, who was then 56 years old, went to the AutoZone to purchase motor oil.

Although Flores had seen Gomez at the store during prior visits, he did not know Gomez and had never spoken to him. Because Flores needed assistance, he made a noise to get the attention of Gomez, who happened to be standing nearby.

Flores then asked Gomez the price for a case of motor oil. Gomez responded by admonishing him.

Flores told Gomez that he should not have come into work if he did not want to work. Gomez, who was holding a metal pipe in his hand, struck Flores on the head with the pipe.

August of 2005, Flores filed his complaint against both AutoZone West, Inc. and its employee, Erwin Gomez. The complaint asserted causes of action for assault, battery, negligence, premise liability, negligent and intentional infliction of emotional distress and respondeat superior. The complaint also sought punitive damages.

In his complaint Flores made several allegations which among others include, that he was injured when Gomez brandished and struck him with a metal pipe, that Gomez was acting in the course and scope of his employment at the time of the injury and that AutoZone had been negligent in hiring, training or retention of Gomez as an employee.

AutoZone answered the complaint and then moved for summary judgment, or alternatively for summary adjudication as to each cause of action in the complaint.

In its summary judgment motion, AutoZone argued that Gomez’ conduct of attacking . . . an older and smaller gentleman with a steel pipe can only be described as perverse and beyond any human decency and was outside the course and scope of his employment as a matter of law.

AutoZone also asserted it could not be held liable for negligent hiring; that there was no evidence of negligence; that none of its alleged acts or omissions was the legal cause of Flores’ injury and that the evidence was insufficient, as a matter of law, to support the imposition of punitive damages against it.

Flores opposed the motion and argued that because interacting with customers was a part of Gomez’s duties his act of physically attacking Flores fell within the course and scope of his employment; that there are triable issues of fact relating to whether AutoZone had acted negligently in hiring, retaining and training Gomez as an employee.

Despite Flores’ opposition, Superior Court of Orange County granted the motion.

The court’s minute order stated that AutoZone established that Gomez’ conduct was unforeseeable to place Gomez within the course and scope of employment with AutoZone at the time of his intentional, independent acts.

AutoZone had further established that it did not breach any independent duty of care it owed to Flores as alleged in the operative complaint.

Flores filed a timely appeal with the Court of Appeals of the State of California, Fourth Appellate District Division of Three.

On there part the appellate court reversed the trial courts judgment and orders the remand of the case for further proceedings with specific directions.

In part, the appellate court ruled on this wise:

Employer could be held liable for damages caused by its employee’s physical assault of a customer within employer’s retail premises after the customer had spoken to employee in an arguably insulting manner.

Since the employee’s physical eruption, stemming from his interaction with a customer is a predictable risk of retail employment, evidence that this was the case, created a triable issue as to whether employee was acting within the scope of employment.

Evidence of retail employee’s juvenile record or other "dangerous propensities" manifested prior to employee’s hiring was insufficient to establish triable issue as to whether employer was negligent in hiring employee since retail employer could not have accessed employee’s confidential juvenile record and had no independent duty to run a background check or personality screening test.

Evidence of a single instance of employee misconduct did not create a triable issue on plaintiff’s claim of negligent retention where the incident occurred three years before employee assaulted plaintiff and involved abusive language but not violence.

Finally, the appellate court finds that AutoZone was entitled to summary adjudication of Flores’ claims for punitive damages. The evidence presented in this case was insufficient as a matter of law to establish either that AutoZone had advance knowledge of Gomez’ unfitness as an employee, or that it ratified his conduct in this case. Absent either circumstance, punitive damages cannot be awarded.