      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT A. JAMES, JR. and              :   C.A. No. K16C-08-028 JJC
DAWN M. JAMES,                        :
                                      :
           Plaintiffs,                :
                                      :
                  v.                  :
                                      :
ROBERT WILLIAMS,                      :
PETE STORE-DELAWARE, LLC, a           :
Delaware limited liability company,   :
and PETE STORE-SEAFORD,               :
LLC, a Delaware limited liability     :
company,                              :
                                      :
           Defendants.                :

                 MEMORANDUM OPINION AND ORDER

                         Submitted: November 17, 2017
                          Decided: November 30, 2017

Upon the Defendant Pete Store Delaware, LLC’s Motion for Partial Summary
                         Judgment – GRANTED


Scott E. Chambers, Esquire & Gary E. Junge, Esquire, SCHMITTINGER &
RODRIGUEZ, P.A., Dover, Delaware, Attorneys for Plaintiffs.

Thomas P. Leff, Esquire, CASARINO, CHRISTMAN, SHALK, RANSOM &
DOSS, P. A., Wilmington, Delaware, Attorney for Defendant Robert Williams.


Benjamin C. Wetzel, III, Esquire, WETZEL & ASSOCIATES, Wilmington,
Delaware, Attorney for the Defendants, Pete Store-Delaware, LLC & Pete Store-
Seaford, LLC.
       Defendant Pete Store Delaware, LLC (hereinafter “Pete Store” or the
“Company”) moves for partial summary judgment regarding Plaintiff Robert A.
James, Jr’s (hereinafter “Mr. James’”) claim against it for punitive damages. Mr.
James sues Pete Store and its employee, Defendant Robert Williams (hereinafter
“Mr. Williams”) for automobile accident related injuries allegedly caused by Mr.
Williams’ negligence and recklessness.        Mr. James alleges that Pete Store is
vicariously liable for both compensatory and punitive damages. The Company’s
potential liability for punitive damages is at issue.     Although such a claim is
generally decided as one of fact, in this case, the factual record does not generate a
triable issue of fact that would permit a reasonable jury to hold the tortfeasor’s
employer vicariously liable for punitive damages. For that reason and those outlined
herein, Pete Store’s motion for partial summary judgment is GRANTED.
                               I.   Factual Background
       Discovery in this case has concluded. The facts recited herein are those of
record, and are viewed in the light most favorable to the non-moving party. Pete
Store is a Peterbuilt truck dealer in Seaford, Delaware where Mr. Williams was
employed as a service manager. The extent of the record regarding Mr. William’s
duties evidences that he was to make sure work was performed in a timely manner
and that he collected payment from customers.1 In an affidavit submitted in support
of the motion, Douglas Cole (hereinafter “Mr. Cole”), the Vice President of Finance
for Pete Store, described Mr. Williams duties as “supervising the service department
and collecting payments from customers in the service department”.2 However,
according to Mr. Cole, Mr. Williams was not considered a principal or managerial
agent of Pete Store. 3 The same affidavit provided that Mr. Williams reported to a



1
  Willams Dep. 3. March 8, 2017.
2
  Cole Aff. ¶ 2, October 9, 2017.
3
  Id. at ¶ 4.
                                          2
Regional Service Manager, who reported to a Vice President and General Manager,
who in turn reported to the President and CEO. 4
           On or about April 21, 2016, Mr. James arrived at Pete Store to pick up his
son’s truck after repairs. The repair cost was $17,298.52. After a test drive, Mr.
James provided Mr. Williams with a check for the cost of the repairs. Pete Store
alleges that Mr. James was unhappy with how long it took the repairs to be
completed. Based on the parties’ history, Mr. Williams was eager to get Mr. James
out of the shop as quickly as possible. At some point, Mr. James became irritated
that his check was taking a long time to process. He accordingly left the store and
took the truck. Mr. James alleges that he informed Mr. Williams that he was leaving
with the truck and to call him if there were any problems.
           After Mr. James took his son’s truck, Pete Store’s check guarantee center
advised Mr. Williams that the check could not be certified. Mr. Williams then left
the Pete Store in his personal vehicle to chase Mr. James. After Mr. Williams caught
up with Mr. James, Mr. James pulled onto a median on the highway. Despite
demand, Mr. James refused to return to the store because he needed to return the
truck to his son. Mr. James told Mr. Williams that he could call him if there were
any problems with his check because he had more than sufficient funds in his
account to cover the check.
           At that point, in an apparent attempt to force Mr. Jones to return to the store,
Mr. Williams reached into Mr. James’ vehicle, grabbed his cell phone, and returned
to his car. Mr. James then approached Mr. Williams car to recover his cell phone.
While the facts about what happened next remain in dispute, for the purposes of
summary judgment, as Mr. James reached into Mr. Williams vehicle to retrieve his
phone, Mr. Williams recklessly pulled away with Mr. James caught on the outside
of the vehicle. Mr. James suffered injuries as a result.

4
    Id. at ¶ 5.
                                               3
                                       II.     Discussion
        Summary judgment may only be granted if the record shows that there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of
law. 5 The Court must view the evidence in the light most favorable to the non-
moving party. 6 The burden of proof is initially on the moving party. 7 However, if
the movant meets his or her initial burden, then the burden shifts to a non-moving
party to demonstrate the existence of material issues of fact.8 If the non-moving
party is the party who will bear the burden of proof at trial, then to survive summary
judgment, that party is obliged to point to facts in the record that will support its
prima facie case at trial. 9 The non-movant’s evidence of material facts in dispute
must be sufficient to withstand a motion for judgment as a matter of law and must
support the verdict of a rational jury. 10 The non-movant may not simply rest on his
on her allegation that there are genuine issues of material fact without referencing
such facts in the record.11
        Delaware courts consistently look to the Restatement (Second) of Torts § 909
(1979) to determine whether a jury may award punitive damages against an
employer for the act of an employee.12 The Restatement (Second) of Torts provides
that:

5
  Super. Ct. Civ. R. 56(c); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
6
  Brozaka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
7
  Super. Ct. Civ. R. 56(e); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
8
  Id. at 681 (citing Hurtt v. Goleburn, 380 A.2d 145 (Del. 1974)).
9
  Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991)(citing Celotex Corp. v. Catrett, 477 U.S. 317,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
10
   Lum v. Anderson, 2004 WL 772074, at *2 (Del. Super. 2004)(citing James W. Moore et. Al.,
Moore’s Federal Practice § 56.03[3], at 56-35 (2d ed. 2003)(citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250-252 (1986) and Cerberus Int’l, Ltd. V. Apollo Mgmt., L.P., 794 A.2d 1141,
1148-1149 (Del. 2002)(en banc)(adopting Liberty Lobby’s “main holding” that the substantive
proof required at trial should be the substantive standard of proof at the summary judgment stage)).
11
   Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
12
   Ramada Inns, Inc. v. Dow Jones & Co., Inc., 1988 WL 15825 at *1 (Del. Super. Ct. 1988);
Taylor v. Christiana Care Health Services, Inc., 2012 WL 1415779 at *2 (Del. Super. Ct. 2012);
Pearson v. Semans, 1991 WL 89821 at *1 (Del. Super. Ct. 1991).
                                                   4
           [p]unitive damages can properly be awarded against a master or other
           principal because of an act by agent if, but only if:

           (a) The principal or a managerial agent authorized the doing and
               the manner of the act, or
           (b) The agent was unfit and the principal or a managerial agent was
               reckless in employing or retaining him, or
           (c) The agent was employed in a managerial capacity and was
               acting the scope of his employment, or
           (d) The principal of a managerial agent of the principal ratified or
               approved the act.13

Comment b. to this same provision provides that “[a]lthough there has been no fault
on the part of a corporation or other employer, if a person acting in a managerial
capacity either does an outrageous act or approves of the act by a subordinate, the
imposition of punitive damages upon the employer serves as a deterrent to the
employment of unfit persons for important positions.”
       Mr. James primarily argues that Pete Store is liable for punitive damages
arising from Mr. Williams’ tortious acts pursuant to Restatement (Second) of Torts
§ 909(c). Namely, he argues that Mr. Williams was employed in a managerial
capacity and that he was acting in the scope of his employment when he injured Mr.
James.14 While the main dispute focuses on whether Mr. Williams was acting in a
managerial capacity, the Restatement provision at issue also requires an analysis
regarding whether the tortfeasor was acting within the scope of employment. 15


13
   Restatement (Second) of Torts § 909 (1979).
14
   Mr. James also contends that the facts at trial may show that the Pete Store was reckless in
employing or retaining Mr. Williams under Restatement (Second) of Torts § 909(b). Additionally,
Mr. James argues that Pete Store ratified Mr. Williams actions under Restatement (Second) of Torts
§ 909(d) because the company failed to implement policies prohibiting Mr. Williams actions and
that Mr. Williams was not disciplined for his actions. Mr. James, however, does not identify any
facts of record that support such claims. The discovery period has concluded and the mere
possibility that evidence at trial could support such claims does not generate a genuine issue of
material fact under either of these additional Restatement provisions.
15
   Taylor v. Christiana Care Health Services, Inc., 2012 WL 1415779 at *2 (Del. Super. Ct. 2012).
                                                  5
       The Restatement (Second) of Torts looks to the Restatement (Second) of
Agency § 228 (1958) to determine whether actions taken by an employee are within
the scope of employment.           It provides that conduct is within the scope of
employment if:
         (a) It is the kind he is employed to perform;
         (b) It occurs within the authorized time and space limits;
         (c) It is activated, in part at least, by a purpose to service the master;
             and
         (d) If force is used, the force is not unexpectable.16

       Delaware courts have taken a broad view of whether an employee’s actions
are within the scope of employment. An employee’s violent actions taken while
performing expected tasks are, almost universally, found to create a factual issue to
be decided by the jury.17 Here, there is no doubt that Mr. Williams duties included
collecting payment, that his actions occurred while working for Pete Store, and that
his actions were done in service of Pete Store. The only remaining question is the
extent to which Mr. Williams’ actions were foreseeable. Under the liberal standards
of Draper v. Olivere Paving & Const. Co. 18 and Doe v. State19 for analyzing
foreseeability for the purposes of summary judgment, the Court concludes that there
are sufficient facts for a reasonable jury to rely upon in finding the actions were
foreseeable. Thus a reasonable jury could conclude that Mr. Williams was acting




16
   Restatement (Second) of Agency § 228 (1958).
17
   See e.g. Doe v. State, 76 A.3d 774, 777 (Del. 2013)(finding that a police officer committing
sexual assault on someone in his custody should be considered within the scope of employment
under § 228 for the purposes of summary judgment); Draper v. Olivere Paving & Const. Co., 181
A.2d 565, 571 (Del. 1962)(finding that a construction worker, while directing traffic, cutting a
motorist’s neck after an argument was foreseeable, and that he was acting in the scope of his
employment).
18
   181 A.2d 565, 571 (Del. 1962).
19
   76 A.3d 774, 777 (Del. 2013).
                                              6
within the scope of his employment.20 Consequently, this matter turns on whether
Mr. Williams acted in a managerial capacity when Mr. James was injured.
       In evaluating this portion of the claim, the Court starts with the United States
Supreme Court’s decision in Kolstad v. American Dental Ass’n.21                      There, the
Supreme Court noted that “unfortunately, no good definition of what constitutes a
‘managerial capacity’ has been found” and “determining whether an employee meets
this description requires a factually intensive inquiry.” 22 In determining managerial
capacity, the Court directed lower courts to “review the type of authority that the
employer has given to the employee, the amount of discretion that the employee has
in what is done, and how it is accomplished.”23 Moreover, according to the Supreme
Court, to have managerial capacity, the employee “must be ‘important,’ but perhaps
need not be the employer’s ‘top management, officers, or directors’ to be acting ‘in
a managerial capacity.’”24
       Mr. Williams relies upon Sackett v. ITC Deltacom, Inc.25, where the Eastern
District of Tennessee analyzed Kolstad, and determined that “where an employee
fits within the employer’s hierarchy will be particularly relevant . . .. The higher in
the hierarchy, the more likely the employee is a management agent.”26 Moreover,
the Sackett Court persuasively recognized that courts must “look behind an
employee’s title to determine whether he or she was acting in a managerial capacity”


20
   Mr. Williams did not argue, either in his written motion or at oral argument, that summary
judgment was warranted regarding the sub-issue of scope of employment.
21
   527 U.S. 526, 543-544 (1999). While Kolstad is not binding authority regarding this state law
tort claim and also analyzes the Restatement provision at issue in the separate context of a Title
VII employment discrimination claim, it constitutes the best developed persuasive authority on the
issue. If anything, a higher level of managerial capacity could arguably be required to impute
punitive damage liability for tortious conduct that does not involve employment discrimination.
Regardless, its suggested factors are the appropriate way to analyze the issue at hand.
22
   Id. at 543.
23
   Id.
24
   Id.
25
   374 F.Supp. 2d. 602 (E.D. Tenn. 2005).
26
   Id. at 622.
                                                 7
and that the inquiry is “necessarily fact intensive.” 27 The fact intensive inquiry
involves “closely examining the facts surrounding an employee’s actions and
limiting the group of employees whose actions can give rise to vicarious liability for
punitive damages.”28
       In this matter, a review of the record leaves the Court with few facts to
evaluate Mr. William’s potential managerial capacity.         Pete Store’s two page
affidavit states: (1) Mr. Williams responsibilities are “supervising the service
department and collecting payments from customers in the service department”; (2)
Mr. William’s title is “service manager”; (3) Mr. Williams is at the bottom of the
managerial hierarchy; and (4) Mr. Williams is not a principal or managerial agent. 29
The only other evidence in the record containing facts helpful in evaluating whether
Mr. Williams serves in a managerial capacity are in is his deposition, where he
described his responsibilities as “making sure work is completed in a timely manner”
and “collect[ing] payments for work done.”30
       Pete Store, as the movant, met its initial burden of providing evidence that Mr.
Williams did not possess managerial capacity at the time of the incident. Mr. Cole’s
affidavit asserts that Mr. Williams was at the bottom of the managerial hierarchy,
and that he is not considered by the Company to be a managerial agent. All of these
facts support a conclusion that Mr. Williams was not employed in a managerial
capacity.
       Accordingly, at that point in the summary judgment analysis, it is incumbent
upon Mr. James to point to facts supporting a finding that Mr. Williams possessed
managerial capacity that could trigger liability for punitive damages. Even when
viewing all the facts of record in the light most favorable to Mr. James, there are


27
   Id.
28
   Id.
29
   Cole Aff., October 9, 2017.
30
   Willams Dep. 3. March 8, 2017.
                                           8
insufficient facts to create a triable issue of fact in this instance.     The Court
acknowledges that this issue is extremely factual in nature and rarely appropriate to
decide at the summary judgment stage. With virtually no facts of record addressing
the factors relevant to the decision, however, partial summary judgment is
appropriate in this case.
      Using Kolstad’s guidance, the Court should review the type of authority that
Pete Store gave Mr. Williams, the amount of discretion that Mr. Williams had in
performing his work, and how the work is accomplished. The record is devoid of
evidence permitting a trier of fact to evaluate Mr. William’s role at Pete Store.
Simply relying upon the title of “service manager” alone is insufficient to permit a
reasonable jury to conclude that Mr. Williams had managerial capacity given the
necessity of evaluating various other factors. There are no facts in the record other
than this title that could lead to in interference that Mr. Williams had any authority
beyond what is typically given to a clerical position at an ordinary repair shop.
Likewise, there is no information in the record regarding what type of discretion Mr.
Williams was given to do his job, aside from Mr. Cole’s assertion that he was not
considered a managerial agent.
      The Kolstad Court also persuasively focuses on the employee’s importance,
holding that they must be important to possess managerial capacity, but not
necessarily be top management. Mr. Cole’s affidavit places Mr. Williams at the
bottom of the discussed managerial hierarchy. That also does not create an inference
that Mr. Williams was “important” enough at Pete Store for his intentional or
reckless tortious acts to be imputed to the company for the purposes of punitive
damages. To the contrary, it supports the opposite conclusion, which is that Mr.
William’s role at Pete Store was more clerical in nature, and that he had either
limited or no management authority.



                                          9
      Finally, although Mr. Cole’s affidavit asserts that Mr. Williams
responsibilities included “supervising the service department”, there are no facts in
the record to explain what authority he had when “supervising”, whether it included
supervision of other employees, or any other facts supporting that Mr. Williams was
granted any authority or autonomy. Absent a developed record regarding his duties
and authority, the Court is left to guess regarding these matters. Mr. James does not
reference facts that substantiate his claim to the extent that a reasonable jury could
infer that Mr. Williams had managerial capacity for purposes of vicarious liability
for punitive damages.
                                   III.   Conclusion
      For the reasons set forth above, Mr. James does not identify sufficient facts to
establish that there is a triable issue of fact regarding Pete Store’s vicarious liability
for punitive damages. Potential vicarious liability for compensatory damages and
vicarious liability for punitive damages require different analyses. Notwithstanding
that the claim at issue is highly factually in nature and not normally subject to
summary judgment, under the facts of record in this case, Pete Store’s motion for
partial summary judgment is GRANTED.
      IT IS SO ORDERED



                                                       /s/Jeffrey J Clark
                                                       Judge




                                           10
