                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                  Assigned on Briefs April 27, 2004

 PARRIS LESTER v. CRACKER BARREL OLD COUNTRY STORE, INC.

                           Appeal from the Circuit Court for Wilson County
                              No. 12178    John D. Wootten, Jr., Judge


                         No. M2003-02409-COA-R3-CV - Filed June 2, 2004


This appeal concerns a restaurant’s liability for the conduct of an employee who verbally abused and
bumped a customer. The customer filed suit against the restaurant in the Circuit Court for Wilson
County seeking damages for intentional infliction of emotional distress. The trial court granted the
restaurant a summary judgment and the customer appealed. The sole issue on appeal is whether the
employee was acting within the scope of his employment when he harassed and bumped the
customer. Because we find as a matter of law the employee was not acting within the scope of his
employment, we affirm the summary judgment.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM B. CAIN , PATRICIA J. COTTRELL, and FRANK G. CLEMENT , JR., JJ., delivered the opinion
of the court.

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Parris Lester.

John Thomas Feeney and Shannon E. Poindexter, Nashville, Tennessee, for the appellee, Cracker
Barrel Old Country Store, Inc.

                                       MEMORANDUM OPINION1

                                                         I.

       On February 2, 2002, Parris Lester, his wife, his eighteen month old granddaughter, and a
family friend went to eat at the Cracker Barrel Old Country Store (“Cracker Barrel”) in Lebanon,
Tennessee. Michael Fisher, a Cracker Barrel host, seated them, but appeared inconvenienced when
Mr. Lester requested a high chair for his granddaughter. After Mr. Lester’s granddaughter spilled

       1
           Tenn. Ct. App. R. 10 provides:

       The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. W hen a case is decided by memorandum opinion, it shall be designated
       "MEMORANDUM O PINION," shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
her milk, Mr. Fisher admonished the family to be more careful. The granddaughter then began
playing with a wooden trifold advertisement. Mr. Fisher forcibly took the advertisement from the
child, stating she should not be playing with it. When the child began to cry, Mr. Fisher remarked
sarcastically “yes, let her do whatever she wants.”

        As Mr. Lester was leaving the restaurant, Mr. Fisher intentionally bumped into him. A
cashier then asked Mr. Lester what was wrong. While Mr. Lester related what had occurred, Mr.
Fisher came over and asked “what is he whining about now.” Mr. Fisher then confronted Mr. Lester
and told him they needed to go somewhere and settle this.

       On April 24, 2002, Mr. Lester filed a complaint against Cracker Barrel in the Circuit Court
for Wilson County seeking damages for intentional infliction of emotional distress and asserting that
Cracker Barrel is vicariously liable for the actions of Mr. Fisher. Cracker Barrel filed an answer
denying liability and subsequently moved for a summary judgment on the grounds that Mr. Fisher
was not acting within the scope of his employment during his interaction with Mr. Lester.

         In support of its motion for summary judgment, Cracker Barrel submitted a statement of
undisputed facts, a copy of the Cracker Barrel Employee Handbook, and the affidavit of Patrick
Wilson, the Cracker Barrel floor manager at the time of the incident. In addition to setting forth the
events of February 2, 2002, the statement of undisputed facts provided details regarding Cracker
Barrel’s employee policies and Mr. Fisher’s employment in particular. Cracker Barrel’s employee
rules of conduct require employees to be courteous and friendly to guests and prohibit employees
from using profane, indecent or abusive language, acting in a rude or boisterous manner, engaging
in harassing conduct or making threats to guests. Mr. Fisher had signed a statement acknowledging
that Cracker Barrel’s mission was “pleasing people” and pledging to comply with all of Cracker
Barrel’s rules and policies. Cracker Barrel management had evaluated Mr. Fisher’s performance as
a host less than a month before the incident and determined that Mr. Fisher met the requirements for
hospitality and proper dialogue with customers. Finally, Mr. Fisher was fired as a result of the
incident.

         In response to the motion for summary judgment, Mr. Lester admitted each fact listed in
Cracker Barrel’s statement of undisputed facts. He asserted, however, that Mr. Fisher’s actions were
committed while furthering Cracker Barrel’s business and that “there are too many questions of fact
regarding the scope of employment to grant summary judgment.” Mr. Lester did not file a statement
of additional material facts or support his response with affidavits or discovery materials. The trial
court granted the motion for summary judgment and dismissed the complaint.

                                                 II.

       Because summary judgments involve issues of law rather than issues of fact, they enjoy no
presumption of correctness on appeal. BellSouth Advertising & Publ'g Co. v. Johnson, 100 S.W.3d
202, 205 (Tenn.2003); Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.2002).
Accordingly, this court must make a fresh determination that the requirements of Tenn. R. Civ. P.
56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997).




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        A motion for summary judgment should be granted when the moving party demonstrates that
no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter
of law. Tenn. R. Civ. P. 56.04. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). To be entitled
to a judgment as a matter of law, a defendant must either affirmatively negate an essential element
of the plaintiff’s claim or conclusively establish an affirmative defense. Byrd v. Hall, 847 S.W.2d
208, 215 n. 5 (Tenn. 1993); McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.
1998). If the moving party successfully negates an essential element of the action, the non-moving
party may not simply rest upon the pleadings, but must offer proof to establish the existence of the
essential element of the claim. Mere conclusory generalizations will not suffice. Psillas v. Home
Depot, U.S.A., Inc., 66 S.W.3d 860, 864 (Tenn. Ct. App. 2001).

        In order to hold Cracker Barrel liable for the actions of Mr. Fisher, Mr. Lester must prove
that the Mr. Fisher was acting within the scope of his employment when the injury occurred.
Hamrick v. Spring City Motor Co., 708 S.W.2d 383, 386 (Tenn. 1986). If Cracker Barrel can negate
this essential element of Mr. Lester’s claim, Cracker Barrel is entitled to a summary judgment.

       Whether an employee is acting within the scope of his or her employment is generally a
question of fact. Craig v. Gentry, 792 S.W.2d 77, 80 (Tenn. Ct. App. 1990). It becomes a question
of law, however, when the facts are undisputed and cannot support conflicting conclusions.
Tennessee Farmers Mut. Ins. Co. v. Am. Mut. Liab. Ins. Co., 840 S.W.2d 933, 937 (Tenn. Ct. App.
1992). Where the employee's acts are clearly beyond the scope of his authority, the issue is a
question of law. Tennessee Farmers Mut. Ins. Co. v. Am. Mut. Liab. Ins. Co., 840 S.W.2d at 937.

        The Restatement (Second) of Agency provides a framework for determining whether an
employee's acts are within the scope of employment. Tennessee Farmers Mut. Ins. Co. v. Am. Mut.
Liab. Ins. Co., 840 S.W.2d at 937-38. The Restatement (Second) of Agency § 228 (1957) provides:

               (1)     Conduct of a servant is within the scope of employment if,
                       but only if:

                       (a)     it is of the kind he is employed to perform;

                       (b)     it occurs substantially within the authorized
                               time and space limits;

                       (c)     it is actuated, at least in part, by a purpose to
                               serve the master; and

                       (d)     if force is intentionally used by the servant
                               against another, the use of force is not
                               unexpectable by the master.

               (2)     Conduct of a servant is not within the scope of employment
                       if it is different in kind from that authorized, far beyond the
                       authorized time and space limits, or too little actuated by a
                       purpose to serve the master.

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The Restatement (Second) of Agency § 229 provides:

               (1)     To be within the scope of employment, conduct must be of
                       the same general nature as that authorized, or incidental to the
                       conduct authorized.

               (2)     In determining whether or not the conduct, although not
                       authorized, is nevertheless so similar to or incidental to the
                       conduct authorized as to be within the scope of employment,
                       the following matters of fact are to be considered:

                       (a)     whether or not the act is one commonly done
                               by such servants;

                       (b)     the time, place and purpose of the act;

                       (c)     the previous relations between the master and
                               the servant;

                       (d)     the extent to which the business of the master
                               is apportioned between different servants;

                       (e)     whether or not the act is outside the enterprise
                               of the master or, if within the enterprise, has
                               not been entrusted to any servant;

                       (f)     whether or not the master has reason to expect
                               that such an act will be done;

                       (g)     the similarity in quality of the act done to the
                               act authorized;

                       (h)     whether or not the instrumentality by which
                               the harm is done has been furnished by the
                               master to the servant;

                       (i)     the extent of departure from the normal
                               method of accomplishing an authorized result;
                               and

                       (j)     whether or not the act is seriously criminal.

        This court recently applied the Restatement factors in determining a restaurant’s liability for
the intentional tort of an employee in Morris v. Collis Foods, Inc., No. W2001-00918-COA- R3-CV,
2002, 2002 WL 1349514 (Tenn. Ct. App. June 19, 2002) (No Tenn. R. App. P. 11 application filed).
The events in Morris were similar to the events in this case. Following a verbal altercation over the

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service, a waitress threw an object at a customer striking him in the head and causing injuries. Based
on undisputed facts very similar to those established by Cracker Barrel in this case, the Morris court
determined that the waitress's actions were clearly outside of the scope of her employment and
affirmed the trial court’s order granting the restaurant a summary judgment.

        Applying the Restatement factors to the undisputed facts in this case, we reach the same
conclusion as the Morris court. Mr. Fisher’s actions, like those of the waitress in Morris, were not
authorized by his employer. To the contrary, his actions were specifically prohibited by Cracker
Barrel’s rules of conduct. Mr. Fisher did not verbally abuse and bump Mr. Lester in furtherance of
Cracker Barrel’s business. These actions were personal in nature. Moreover, Cracker Barrel had
recently evaluated Mr. Fisher and had no reason to expect that he would treat a customer in such a
manner. Accordingly, we conclude that Mr. Fisher’s acts were outside of the scope of his
employment as a matter of law and that the trial court properly granted Cracker Barrel’s motion for
summary judgment.

                                                 III.

        We affirm the trial court’s order granting Cracker Barrel a summary judgment and remand
the case to the trial court for such further proceedings as may be necessary. We also tax the costs
of the appeal to Parris Lester for which execution, if necessary, may issue.



                                                        PER CURIAM




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