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David J. Iverson v. Npc International

July 20, 2011

DAVID J. IVERSON,
PLAINTIFF AND APPELLANT,
v.
NPC INTERNATIONAL, INC.,
DEFENDANT AND APPELLEE, AND NORMAN CURTIS WILLIAMS,
DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE DOUGLAS E. HOFFMAN Judge

The opinion of the court was delivered by: Meierhenry, Retired Justice

ARGUED ON APRIL 27, 2011

[¶1.] David Iverson alleged that he was attacked by NPC International's (Pizza Hut's) employee, Norman Williams, at a Pizza Hut restaurant in Sioux Falls, South Dakota. Iverson filed suit against Williams and Pizza Hut. He asserted four theories of liability: (1) vicarious liability under the doctrine of respondeat superior; (2) negligent hiring; (3) breach of duty to control an employee; and, (4) negligent supervision. The circuit court granted summary judgment in Pizza Hut's favor on all four theories. We affirm.

Facts and Background

[¶2.] Because this case comes to us as a result of summary judgment, we view the facts in the light most favorable to Iverson. Advanced Recycling Sys., L.L.C. v. Se. Props. Ltd. P'ship, 2010 S.D. 70, ¶ 10, 787 N.W.2d 778, 783. NPC International owns and operates several Pizza Hut restaurants across the United States, including the Pizza Hut located on the corner of 26th Street and Sycamore Avenue in Sioux Falls. In February 2007, Pizza Hut hired Williams as a utility worker who works behind the scenes preparing food, doing dishes, and cutting pizzas. When Williams interviewed for the position, he told the manager that he was on parole for a felony conviction in Colorado and that his conviction involved a gang-related incident of "mutual combat resulting in serious injury." The manager inquired no further into Williams's criminal history because the position was non-managerial.*fn1 Williams worked as a utility worker without incident for approximately seven months. During that time, Iverson also worked at Pizza Hut but was fired in July 2007 for his inability to complete tasks. Williams and Iverson remained friends after Iverson's termination and continued to spend time together at Williams's apartment.

[¶3.] The incident giving rise to this action occurred on September 8, 2007. While working at Pizza Hut, Williams phoned Iverson and asked him to come to Pizza Hut to return a CD he had borrowed. Iverson and a friend, Tony Johnson, drove to Pizza Hut. Johnson took the CD into the restaurant, walked past the manager on duty, and gave it to Williams. Williams told Johnson that he wanted to speak to Iverson directly because he believed Iverson owed him money and was avoiding him.

[¶4.] Johnson then left the restaurant and returned with Iverson. The two walked past the manager to Williams's work station. Williams directed Iverson and Johnson to the back of the restaurant. There, Williams pressed Iverson against the wall and demanded money from him. Iverson refused. Williams then struck Iverson with an open-handed uppercut punch to the chin and jaw, knocking Iverson to his hands and knees. Williams reached into Iverson's pockets and took about $100 in cash. Williams also demanded money from Johnson, who showed Williams his empty pockets. Johnson and Iverson then left.

[¶5.] Johnson and Iverson drove to a friend's apartment. Iverson was bleeding profusely, and his mouth was swelling. Iverson soon determined that he needed medical attention and drove to the hospital. X-rays revealed that his jaw was broken in three places. Iverson claimed he suffered substantial pain and incurred over $29,000 in medical and dental bills as a result of the injury.

[¶6.] On March 6, 2008, Iverson sued Williams and Pizza Hut.*fn2 Iverson asserted four theories of liability against Pizza Hut: (1) vicarious liability under the doctrine of respondeat superior; (2) negligent hiring; (3) breach of the duty to control an employee; and, (4) negligent supervision. The circuit court granted summary judgment in Pizza Hut's favor on all four theories. Iverson appeals.

Analysis and Decision

[¶7.] Our standard of review for summary judgment is settled. We review evidence in the light most favorable to the nonmoving party and questions of law de novo. Kirlin v. Halverson, 2008 S.D. 107, ¶ 10, 758 N.W.2d 436, 443 (quoting Wojewski v. Rapid City Reg'l Hosp., Inc., 2007 S.D. 33, ¶ 12, 730 N.W.2d 626, 631). Whether a duty exists in a "negligence action is a question of law subject to de novo review . . . ." Id. (quoting Hohm v. City of Rapid City, 2008 S.D. 65, ¶ 3, 753 N.W.2d 895, 898).

If a duty exists, the remaining questions of breach and causation are factual questions that must be determined by the trier of fact. Id.

Vicarious Liability

[¶8.] "The ancient doctrine of respondeat superior is well established as 'holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of the employment or agency.'" Id. ¶ 12 (quoting Black's Law Dictionary (8th ed. 2004)). But "[w]hen a servant acts with an intention to serve solely his own interests, this act is not within the scope of employment, and his master may not be held liable for it." Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177, 181 (S.D. 1987) (citing Prosser & Keeton on the Law of Torts, § 70, at 503 (5th ed. W. Keeton 1984)). Iverson concedes that entirely personal interests motivated Williams's assault and that ...


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