                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1965



LLOYD E. JORDAN,

                                              Plaintiff - Appellant,


           versus

WESTERN DISTRIBUTING COMPANY,

                                              Defendant - Appellee,


           and

STEPHEN PHILIP MEININGER; RONNIE GENE SASSER,
JR.,

                                                         Defendants.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
03-950-CCB)


Argued:   March 17, 2005                      Decided:   May 2, 2005


Before MICHAEL and DUNCAN, Circuit Judges, and Frederick P. STAMP,
Jr., United States District Judge for the Northern District of West
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
ARGUED: Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for
Appellant. Andrew Gendron, VENABLE, L.L.P., Baltimore, Maryland,
for Appellee.    ON BRIEF: Gabrielle S. Moses, VENABLE, L.L.P.,
Baltimore, Maryland; Luis A. Toro, SENN, VISCIANO, KIRSCHENBAUM,
MERRICK, P.C., Denver, Colorado, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

      This case arises from an incident that occurred on February

26, 2002, on Interstate 95 in Baltimore, Maryland.              On that date,

Ronnie G. Sasser, Jr. (“Sasser”) and Stephen Philip Meininger

(“Meininger”), while transporting currency in an armored vehicle

pursuant to their duties as drivers and security guards for Western

Distributing Company (“Western”) and its subsidiary, United States

Armored Company, allegedly attempted to “cut off and to force

[Lloyd Jordan’s] vehicle off the road on numerous occasions.”

Compl. ¶ 11.    During the incident, Meininger also allegedly leaned

out of the passenger window and repeatedly aimed a sawed-off

shotgun at Jordan and threatened to “blow off” Jordan’s head.               Id.

      The Maryland State Police subsequently stopped and arrested

Sasser and Meininger.            Sasser was charged with possession of

marijuana and carrying a concealed weapon without a proper permit.

Meininger was charged with first degree assault of Jordan, second

degree   assault    of    Jordan,    concealment    of   a    deadly   weapon,

possession of a controlled, dangerous substance, and possession of

paraphernalia.     Sasser pleaded guilty to the marijuana charge and

the   State   dismissed    the    weapon   charge   against   him.     A   jury

convicted Meininger of first degree assault against Jordan and

possession of a controlled, dangerous substance.

      Jordan filed this civil suit against Sasser, Meininger, and

Western in the Circuit Court for Baltimore County, Maryland.               The


                                       3
complaint alleges eight counts, including negligence, assault, and

intentional infliction of emotional distress against Sasser and

Meininger   (Counts   I    through   VI),   negligence    pursuant   to   the

doctrine of respondeat superior against Western (Count VII), and

negligent hiring, training, supervision, and retention against

Western (Count VIII).          Western then removed the case to federal

court pursuant to 28 U.S.C. §§ 1332 and 1441.            The district court

entered an order granting Western’s motion to dismiss Count VII

(respondeat superior) and denying Western’s motion to dismiss Count

VIII (negligent hiring, training, supervision, and retention).

Subsequently, the district court entered an order denying Jordan’s

motion for summary judgment on Count VIII and granting Western’s

cross-motion for summary judgment on Count VIII.*           These decisions

are the basis of Jordan’s appeal.



                          I.    Respondeat Superior

     The district court found that Jordan’s respondeat superior

claim against Western was without merit because the alleged conduct

of Sasser and Meininger was not connected to their duties of

employment.    The court found that the actions of Sasser and

Meininger were a departure from Western’s course of business and

were “both unexpected and unforeseeable.”         J.A. 86.




     *
      The district court later granted Jordan’s motion for default
judgment as to Sasser and Meininger. The court entered a joint and
several judgment of $200,000 against them for compensatory damages
and assessed each defendant $100,000 in punitive damages.

                                       4
     Jordan argues that the district court erred in dismissing this

claim because respondeat superior liability is an issue that should

be decided by a jury.         He asserts that Western can be held liable

for any acts incident to the performance of the duties entrusted to

its employees, even if they are against Western’s orders.                    He

contends that Sasser and Meininger committed the actions at issue

using Western’s vehicle and the firearms provided to them by

Western to carry out their duties.            In addition, he notes that the

attack    occurred    while    Sasser   and    Meininger   were   transporting

currency for Western in furtherance of its business.                   Jordan

asserts    that    “[t]he     corporation     clearly   benefitted   from   the

guarding and transport of U.S. currency by Sasser and Meininger and

it was while furthering the transport of the currency that Sasser

and Meininger attacked [him].”          Appellant’s Br. at 16.

     Western responds that the wrongful actions taken by Sasser and

Meininger –- specifically, in trying to force Jordan off the road,

pointing a weapon at him, and threatening to shoot him –- were not

of the kind that they were hired to perform.                Further, Western

points out that Sasser and Meininger were subsequently arrested and

separated from the truck as well as the currency that Western

entrusted to their care.         Western asserts that these circumstances

refute    the     claim   that    Western     benefitted   from   Sasser    and

Meininger’s conduct.          Western argues that Jordan is essentially

claiming that Western is liable simply because Sasser and Meininger


                                        5
were on duty at the time of the incident, and that, under this

theory,   an   employer   would   be   liable   for   the   actions   of   its

employees regardless of how outlandish the behavior is.               Western

asserts that the district court correctly applied the analysis

outlined in Sawyer v. Humphries, 322 Md. 247, 255, 587 A.2d 467,

471 (1991), and properly concluded that Sasser and Meininger acted

outside of the scope of their duties.

     In reviewing a dismissal of claims pursuant to Rule 12(b)(6),

this Court takes the factual allegations of the complaint as true

and reviews any legal issues de novo.            Bass v. E.I. DuPont de

Nemours & Co., 324 F.3d 761, 764 (4th Cir.), cert denied, 540 U.S.

940 (2003). Under Maryland law, “the questions of agency and scope

of employment are generally questions for the jury.”             Carroll v.

Hillendale Golf Club, 156 Md. 542, 545, 144 A. 693, 695-95 (1929).

However, “‘[w]hen the servant’s deviation from the strict course of

his employment or duty is slight and not unusual, the court may

determine as a matter of law that he is still executing the

master’s business, and if the deviation is very marked and unusual

it may determine the contrary.’”           Id. at 546, 144 A. at 695

(quoting Mechem on Agency § 1982 (2d ed.)).

     Maryland law states:

     To be within the scope of the employment the conduct must
     be of the kind the servant is employed to perform and
     must occur during a period not unreasonably disconnected
     from the authorized period of employment in a locality
     not unreasonably distant from the authorized area, and
     actuated at least in part by a purpose to serve the
     master.

East Coast Freight Lines, Inc. v. Baltimore, 190 Md. 256, 285, 58

                                       6
A.2d 290, 304 (1948) (citations omitted) (quoted in Sawyer v.

Humphries, 322 Md. 247, 255, 587 A.2d 467, 471 (1991)).           In Sawyer,

the court further noted that the conduct must be “expectable” or

“foreseeable.”      322 Md. at 256, 587 A.2d at 471.       The Sawyer court

also found that,

     particularly in cases involving intentional torts
     committed by an employee, this Court has emphasized that
     where an employee’s actions are personal, or where they
     represent a departure from the purpose of furthering the
     employer’s business, or where the employee is acting to
     protect his own interests, even if during normal duty
     hours and at an authorized locality, the employee’s
     actions are outside the scope of his employment.

Id. at 256-57, 587 A.2d at 471.           Finally, the court noted that

“‘[w]here the conduct of the servant is unprovoked, highly unusual,

and quite outrageous,’” this can in and of itself be sufficient to

indicate that the conduct was personally motivated and outside of

the scope of employment.        Id. at 257, 587 A.2d at 471-72 (quoting

Prosser and Keaton On The Law of Torts § 70, at 506 (5th ed.

1984)).

     We find that the district court properly dismissed Jordan’s

respondeat superior claim.         We cannot consider the actions of

Sasser and Meininger to be “of the kind” they were employed to

perform. Sasser and Meininger were not acting to protect the cargo

entrusted to them during this incident –- rather, personal animus

motivated   their    actions.     While   it   is   true   that   Sasser   and

Meininger committed these acts while on duty, using the truck and

guns provided to them by Western, they were in no way attempting to

                                      7
advance Western’s interests.    Their actions actually placed the

safety of the cargo entrusted to them in peril, rather than

protecting it.   Moreover, it goes almost without saying that their

actions were “unprovoked, highly unusual, and quite outrageous.”

Thus, the district court’s decision to dismiss Count VII was

proper.



   II.    Negligent Hiring, Training, Supervision and Retention

     Certain additional facts are relevant in determining whether

the district court properly granted summary judgment to Western on

Count VIII (negligent hiring, training, supervision and retention).

Pursuant to United States Department of Transportation regulations,

Western conducts pre-employment drug screenings of new drivers. If

an employee tests positive, Western terminates his employment.

Sasser’s pre-employment drug screening was negative.      However,

Meininger’s screening was positive and Western initially terminated

him on November 24, 2000. Meininger then exercised his right under

the United States Department of Transportation regulations to see

a substance abuse professional, and privately engaged the services

of JoJan P. Adams (“Adams”).    Adams filed a report with Western

stating that Meininger did not need drug treatment and should be

returned to full-time employment as soon as possible. Western then

required Meininger to undergo another drug screening, which he

passed.   Western re-hired Meininger as a driver on January 4, 2001


                                 8
without requiring him to submit another application and without

conducting any further background checks.

     In his complaint, Jordan claims that Western violated several

provisions    of    the   Federal     Motor    Carrier    Safety    Regulations

(“FMCSR”)    in    securing   and   maintaining    Sasser    and    Meininger’s

employment, and was consequently negligent in hiring and retaining

Sasser and Meininger. Jordan alleges the following violations: (1)

failing to contact Sasser and Meininger’s previous employers to

inquire about past substance abuse; (2) allowing Meininger, a

“known substance abuser,” to operate a commercial motor vehicle,

and failing to inform the Bureau of Engraving and Printing of

Meininger’s positive drug test in 2000; (3) failing to conduct a

proper pre-employment/return to duty drug test prior to re-hiring

Meininger    in    January    2001;    (4)    accepting     the    findings   of

Meininger’s substance abuse counselor, whose testing did not comply

with federal regulations; and (5) failing to conduct proper follow-

up drug tests during the twelve months after Meininger was re-

hired.

     For the purpose of resolving the summary judgment motions, the

district court assumed, without deciding, that Western breached its

duty of care to the general public by not following all of the

federal regulations with respect to performing background checks on

Sasser and Meininger, hiring Meininger, and requiring Meininger to

submit to follow-up drug tests.             The district court also assumed


                                        9
that Jordan suffered actual damages.   Nevertheless, the district

court found that Jordan’s claim of negligent hiring and retention

lacked merit because he failed to show that Western’s negligence

was the proximate cause of his injuries.   Specifically, the court

found Jordan’s evidence deficient in two respects: (1) he failed to

present sufficient proof that Meininger was actually impaired by

marijuana at the time of the incident; and (2) he presented no

facts from Sasser or Meininger’s past that made it foreseeable to

Western that they would become violent or assaultive.

     The district court first concluded that, in order to prove

that Western was negligent in (1) hiring Meininger despite his past

drug use, and (2) failing to conduct follow-up tests to prove he

was drug free, Jordan must prove that Meininger was in fact under

the influence of drugs at the time of the incident and that his

impairment caused Jordan’s injuries.   In evaluating the evidence,

the district court found that Jordan relied on the fact that

Meininger tested positive for drugs seven days after the incident

and that a jury found him guilty of possessing a controlled,

dangerous substance at the time of the incident.      The district

court explained that these circumstances did not logically require

a finding that he was actually impaired at the time the incident

occurred. Thus, the district court concluded that no genuine issue

of fact remained with respect to this claim.




                                10
     Next,    the   district   court    found   that   Jordan    failed   to

demonstrate that Sasser and Meininger’s actions were foreseeable to

Western.     The district court noted that the record reflects no

evidence that Sasser or Meininger had ever previously threatened or

committed violence against anyone, either physically or with a

weapon, prior to the incident with Jordan. The district court also

determined that there was no evidence that Sasser or Meininger had

previously threatened to or actually used a vehicle to harm anyone.

The district court noted that Jordan relied on Meininger’s pre-

employment drug screen as the factor that should have put Western

on notice of Meininger’s dangerousness.         However, the court found

that a reasonable person would not assume that someone under the

influence of marijuana is likely to become violent.

     Based on these findings, the district court concluded that no

genuine issue of material fact existed with respect to Jordan’s

claim   of    negligent   hiring   and    retention    against    Western.

Accordingly, the district court denied Jordan’s motion for summary

judgment and granted Western’s motion for summary judgment as to

this claim.

     Jordan argues that the district court erred in granting

Western’s motion for summary judgment because Jordan submitted

sufficient evidence for his claim to be submitted to a jury.

Jordan claims that the evidence shows that Sasser and Meininger

were under the influence of marijuana at the time of the incident.


                                   11
He argues that a police report notes that the cab of the truck that

Sasser and Meininger were driving smelled of burnt marijuana, and

that several grams of marijuana were found in their possession. He

also asserts that they tested positive for marijuana after the

incident.     Further, he argues that the harm that Jordan suffered

was foreseeable because the general type of harm he received –-

injury at the hands of carriers under the influence of drugs –- was

attributable to Western’s negligence in hiring Meininger after his

positive drug test and to Western not following up as required by

federal regulations.

     Jordan    further   argues   that   the   intentional   nature   of

Meininger’s actions did not make the harm unforeseeable. He claims

that the test is not based on intention, but on the general type of

harm.   He argues: “Harm caused by drivers and armed guards under

the influence of drugs is a general field of danger.         Whether the

actual damage is caused intentionally or unintentionally, the

potential for serious harm existed and was known to Western.”

Appellant’s Br. at 27.

     In addition, Jordan asserts that the district court’s finding

that no evidence exists to suggest that marijuana can prompt

violence is “simply ludicrous.”     Appellant’s Br. at 27.     He claims

that it is well established that marijuana impairs judgment, and

that a jury should decide whether the use of marijuana by Sasser

and Meininger caused them to be reckless and violent or influenced

their decision to assault Jordan.



                                   12
     Finally, Jordan contends that proximate cause exists because

the incident with Sasser and Meininger never would have occurred if

Western had properly complied with the applicable regulations

regarding drug testing.         He asserts that such testing would have

revealed that Meininger was still abusing drugs and he would have

been terminated.       In addition, he claims that if Western had

properly     maintained   files       and    shared      its   background     check

information with other federal agencies, Sasser and Meininger’s

“inherently unfit nature would have become apparent.”                 Appellant’s

Br. at 29.

     Western counters that Jordan has again presented no solid

evidence that either Sasser or Meininger was under the influence of

drugs at the time of the incident.           Western points out that Jordan

did not verify by deposition, or by statement under oath in any

form, the allegations in his amended complaint, nor did he provide

any affidavits of fact witnesses. Further, Western points out that

the police report cited by Jordan in which the officer noted the

smell of burnt marijuana in the cab of the truck is not included as

part of the record in the Joint Appendix.             Western asserts that the

district    court    correctly    concluded       that    Jordan     cannot   prove

proximate    cause    because    he    has   no   evidence      to   support   his

allegation that Sasser and Meininger were under the influence of

marijuana at the time of the incident.




                                        13
     Further, Western argues that Jordan improperly attempts to

enlarge the scope of foreseeability. Western asserts that “[u]nder

Plaintiff’s theory, had Messrs. Meininger and Sasser committed

theft, arson, insider trading, defamation, fraud, or any other

intentional act, all would be in the ‘general field of danger’ and

foreseeable to Western based on a pre-employment drug screen that

was positive for marijuana.”     Appellee’s Br. at 26.     Western

contends that the district court properly found that Jordan’s harm

was not foreseeable because it was not the type of harm that a

reasonable person would believe a driver’s drug use would cause.

In addition, Western notes that Jordan has failed to cite any case

in which a court found a link between marijuana use and assault.

     Finally, Western reiterates that Jordan produced no evidence

to show that Western breached its duty of care.    Western asserts

that Jordan has provided no proof that Western did not comply with

federal regulations. Further, Western asserts that, even if Jordan

had produced evidence of violations, these could not support a

claim for negligent hiring, training, supervision, or retention

based on the holding in Bryant v. Better Business Bureau of Greater

Maryland, Inc., 923 F. Supp. 720 (D. Md. 1996).   The Bryant court

held that a state court could not impose liability on an employer

for failing to prevent a harm that is not cognizable under the

common law.   Id. at 751.   Moreover, Western asserts that Jordan

could not proceed with a negligence claim based on violations of


                                14
federal regulations because such a claim would be preempted by

federal law.

     We review a district court’s ruling on a summary judgment

motion de novo.   Karpel v. Inova Health Sys. Servs., 134 F.3d 1222,

1226 (4th Cir. 1998).    A court should grant summary judgment only

“if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”      Fed.

R. Civ. P. 56(c).       When deciding whether a genuine issue of

material fact remains, “the evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his

favor.”   Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

     Under Maryland law,

     [i]n order to prove a cause of action for either
     negligent hiring, supervision or retention, the Plaintiff
     must establish that her injury was caused by the tortious
     conduct of [an employee], that the employer knew or
     should have known by the exercise of diligence and
     reasonable care that the [employee] was capable of
     inflicting harm of some type, that the employer failed to
     use proper care in selecting, supervising or retaining
     that employee, and that the employer’s breach of its duty
     was the proximate cause of the Plaintiff’s injuries.

Bryant v. Better Business Bureau of Greater Maryland, Inc., 923 F.

Supp. 720, 751 (D. Md. 1996).      In a negligent selection claim,

“there is a rebuttable presumption that an employer uses due care

in hiring an employee.”    Evans v. Morsell, 284 Md. 160, 165, 395

A.2d 480, 483 (1978).   In cases involving the intentional torts of

                                 15
employees, the critical standard is “whether the employer knew or

should have known that the individual was potentially dangerous.”

Id., 395 A.2d at 483.

     In this case, Jordan has established that Sasser and Meininger

were Western employees and that they were responsible for his

injuries.   He next must prove that Western “had or should have had

knowledge of [Sasser and Meininger’s] conduct or general character

which would have caused a prudent employer in these circumstances

to have taken action.”     Bryant, 923 F. Supp. at 752.

     A similar analysis applies when considering whether Western’s

actions were the proximate cause of Jordan’s injuries.                Proximate

cause exists when, at the time of the tortfeasor’s negligent act,

the tortfeasor “should have foreseen ‘the general field of danger,’

not necessarily the specific kind of harm to which the injured

party    would   be   subjected   as        a   result   of   the   defendant’s

negligence.”     Yonce v. Smithkline Beecham Clinical Labs, Inc., 111

Md. App. 124, 139, 680 A.2d 569, 576 (1996) (quoting Stone v.

Chicago Title Ins. Co., 330 Md. 329, 337, 624 A.2d 496, 500

(1993)). The chain of causation remains unbroken if an intervening

occurrence “is one which might, in the natural and ordinary course

of things, be anticipated as not entirely improbable, and the

[initial tortfeasor’s] negligence is an essential link in the chain

. . .”   Yonce, 111 Md. App. at 139, 680 A.2d at 577 (quoting State

ex rel. Schiller v. Hecht Co., 165 Md. 415, 421, 169 A. 311, 313


                                       16
(1933)). Thus, the key issue in determining Western’s liability is

whether Sasser and Meininger’s illegal conduct was foreseeable to

Western.

       To establish foreseeability, the plaintiff must present
       facts showing that a person of ordinary intelligence, who
       is equipped with the knowledge of the dangerous
       condition, should realize the danger posed by that
       condition. The test for foreseeability “encompasses what
       a person of ordinary prudence should realize, not what he
       or she actually did know or realize.”              Stated
       differently, a particular harm is foreseeable if a person
       of ordinary prudence should realize that the condition of
       which he or she has notice[] enhances the likelihood that
       the harm will occur.

Hemmings v. Pellam Wood Ltd. Liab. Ltd. P’ship, 375 Md. 522, 541,

826 A.2d 443, 454 (2003) (quoting Brown v. Dermer, 357 Md. 344,

362, 744 A.2d 47, 57 (2000)).

       This Court cannot conclude that Western should have foreseen

Sasser and Meininger’s violent conduct solely because of the

positive results of Meininger’s pre-employment drug screening.             No

evidence exists in the record that Meininger previously had been

convicted of any crime related to drug use.          Moreover, there is no

evidence that Meininger tested positive for drugs while employed by

Western before this incident occurred.         We also note that neither

Sasser nor Meininger had a documented history of violent behavior.

In addition, no record exists of any coworkers or customers filing

a complaint regarding their behavior prior to this incident. Thus,

we cannot conclude that a reasonable person would have anticipated

such   actions   by   Meininger   based   on   the   information   known   to

Western.



                                    17
      We also agree with the district court that proximate cause is

lacking due to Jordan’s failure to conclusively demonstrate that

Sasser and Meininger were under the influence of drugs at the time

of the incident.     In order to successfully prove a nexus between

Western’s alleged negligence –- i.e., hiring Meininger after a

positive drug screening and failing to conduct follow-up testing –-

and Jordan’s injuries, Jordan would have to show that Meininger

acted while under the influence of drugs.                     We agree with the

district court that the evidence in the record –- (1) the fact that

Meininger tested positive for drugs seven days after the incident,

and (2) the fact that a jury found Meininger guilty of possessing

a   controlled    substance    at    the       time   of    the   incident    –-   is

insufficient to prove that he was actually under the influence of

drugs during the incident.

      In briefs and during oral argument, Jordan’s counsel alluded

to a police report that states that the cab of the truck smelled of

burnt marijuana at the time of Sasser and Meininger’s arrest.

However, the parties did not include this police report in the

Joint Appendix, and we cannot assume that it exists for the purpose

of this decision.      Thus, we have not considered that evidence in

our analysis.

      Given the above conclusions, we find that no genuine issue of

material   fact    exists     as    to     Jordan’s        negligent    hiring     and

supervision   claim,    and   that       the    district     court     appropriately

granted summary judgment in favor of Western.



                                         18
                        III.   Conclusion

     For the reasons set forth above, the orders of the district

court dismissing Count VII of the complaint and granting summary

judgment to Western Distributing Company on Count VIII of the

complaint are

                                                       AFFIRMED.




                                19
