
	OSCN Found Document:BALDWIN v. SAI RIVERSIDE C, L.L.C.

	
				

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BALDWIN v. SAI RIVERSIDE C, L.L.C.2014 OK CIV APP 55326 P.3d 555Case Number: 112201Decided: 04/25/2014Mandate Issued: 05/28/2014DIVISION IIITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IIICite as: 2014 OK CIV APP 55, 326 P.3d 555
LINDSEY R. BALDWIN, Individually, 
Plaintiff/Appellant,v.SAI RIVERSIDE C, L.L.C., d/b/a RIVERSIDE 
CHEVROLET, an Oklahoma Limited Liability Company; and SAI RIVERSIDE C, L.L.C., 
d/b/a Momentum Chevrolet, an Oklahoma Limited Liability Company, 
Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OFTULSA COUNTY, OKLAHOMA
HONORABLE DAMAN H. CANTRELL, TRIAL JUDGE

AFFIRMED

Chad M. Neuens, Brian L. Mitchell, Shella D. Sayne, NEUENS, MITCHELL, FREESE, 
P.L.L.C., Tulsa, Oklahoma, for Plaintiff/Appellant,W. Kirk Turner, Keith 
Andrew Wilkes, NEWTON, O'CONNOR, TURNER & KETCHUM, P.C., Tulsa, Oklahoma, 
for Defendants/Appellees.


BRIAN JACK GOREE, Judge:
¶1 Plaintiff/Appellant, Lindsey Baldwin, seeks review of the trial court's 
order granting summary judgment to Defendants/Appellees, SAI Momentum Chevrolet, 
and SAI Riverside C, L.L.C., d/b/a Riverside Chevrolet (Dealership). Melvin 
Mitchell (Employee) worked at Dealership and injured Baldwin when he struck her 
on the back of the knee as a prank. Baldwin sued Dealership for the negligence 
of Employee. We affirm because the material facts are undisputed and lead to the 
single inference that Employee was acting outside the scope of his employment 
with Dealership when he injured Baldwin by a prank that was entirely personal 
and in no way connected with his assigned work.
¶2 Baldwin's petition alleged she accompanied an out-of-state friend to 
Dealership's premises to visit her then-husband, Doug Baldwin, who was the new 
car manager for Dealership. While the three were conversing, Employee surprised 
Baldwin by kicking the back of Baldwin's knee with his knee, causing tears in 
Baldwin's anterior cruciate ligament and medial meniscus. The injuries required 
surgery to repair them.
¶3 Dealership answered and denied liability. It then moved for summary 
judgment, arguing it was not liable for Employee's act under the theory of 
respondeat superior because the undisputed facts showed Employee was not 
performing any part of his job duties for Dealership when he struck and injured 
Baldwin. Dealership cited Baldwin's deposition testimony:


Q Was there anything about what [Employee] did in intentionally hitting 
    you that - have anything to do with his job as a car salesperson at the 
    dealership?A Well, it wasn't in his job description....Well, he 
    was working that day, but that wasn't --...Q - we understand that. 
    But in actually performing a job duty or anything like that, nothing?A 
    No.
¶4 In response, Baldwin asserted Employee was a sales manager with a 
reputation for pulling pranks and hitting people in the back of knees while he 
was at work. She asserted Dealership did not speak with Employee regarding his 
actions on the day of the incident, but it involuntarily terminated his 
employment on January 20, 2009 for violation of rules, insubordination, and 
unsatisfactory performance. Baldwin argued that where there is uncertainty 
regarding the degree to which the employee deviated from his job duties, the 
issue must be sent to the jury, citing Sheffer v. Carolina Forge Co., 
L.L.C., 2013 OK 48, ¶19, 306 P.3d 544. She also argued 
Dealership ratified Employee's actions by failing to curb his negligent 
interactions, failing to document his negligent interaction with her, and 
continuing his employment for three months after the incident.
¶5 The trial court granted the motion for summary judgment, stating, "the 
facts here do not rise to the level required under caselaw to amount to a 
ratification of specific behavior clearly outside the scope of employment." 
Baldwin appeals without appellate briefs in conformance with the procedures for 
the appellate accelerated docket, Okla. Sup. Ct. R. 1.36, 12 O.S. Supp. 2013, 
Ch. 15, App. 1. She contends the trial court erred in finding (1) Employee 
clearly acted outside the scope of employment when he injured her, and (2) 
Dealership did not ratify Employee's conduct.
¶6 Because a grant of summary judgment involves purely legal determinations, 
we will review the trial court's decision under a de novo standard. 
Carmichael v. Beller, 1996 OK 
48, ¶2, 914 P.2d 1051, 1053. 
Summary judgment is appropriate only when there is no substantial controversy as 
to any material fact and one of the parties is entitled to judgment as a matter 
of law. 12 O.S.2011, Ch. 2, App. 1, Rule 13.
¶7 In order for an employer to be responsible for the tort of an employee 
under the theory of respondeat superior, the tortious act must be committed in 
the course of the employment and within the scope of the employee's authority. 
Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, ¶18, 306 P.3d 544, 550. An employee acts 
within the scope of employment if engaged in work assigned, doing that which is 
proper, necessary and usual to accomplish the work assigned, or doing that which 
is customary within the particular trade or business. Id. Generally, 
assault on a third party is not within the scope of an employee's authority. 
Baker v. Saint Francis Hospital, 2005 OK 36, ¶10, 126 P.3d 602, 605. The exception is 
when the act is incidental to and done in furtherance of the business of the 
employer, even though it was done mistakenly, ill-advisedly, or even 
maliciously. Id.
¶8 Usually the question of whether an employee has acted within the course 
and scope of employment at any given time is a question for the trier of fact. 
Sheffer, 2013 OK 48 at 
¶19. However, where only one reasonable conclusion can be drawn from the facts, 
the issue of whether an employee was within the scope of employment may be 
decided by the court. Id. For example, in N.H. v. Presbyterian Church 
(U.S.A.), 1999 OK 88, ¶17, 998 P.2d 592, 599, the Court held 
that a minister's sexual abuse of children was outside the scope of employment 
as a matter of law.
¶9 In Rausch v. Pocatello Lumber Co., Inc., 135 Idaho 80, 84, 14 P.3d 
1074, 1078 (Ct. App. 2000), the Idaho Court of Appeals canvassed the law of the 
few states that had addressed whether pranks or horseplay at the workplace fell 
within the scope of the prankster's employment. It observed a uniformity of 
holdings that if the prank itself is a part of the employee's duties, even if 
ill-advised, then the act is within the scope; but if the prank is a purely 
personal act for personal motives or whims, then it could in no way be said to 
be serving the employer. The Court concluded that when an employee pulled a 
chair out from underneath a visitor, the resulting injury was done for a purely 
personal motive and did not further any purpose or objective of employer. 
Id. at 1079.
¶10 The Court in Hollinger v. Stormont Hospital and Training School for 
Nurses, 578 P.2d 1121, 1124, (Ct. App. Kan. 1978), reached the same 
conclusion as the Rausch Court when it considered whether a prankster was 
acting in the scope of his employment. An employee injured a visitor when he was 
teasing her and the visitor jerked in such a way that she was injured. The Court 
stated, "His act could only have been for a purpose personal to him." Id. 
at 1130.
¶11 The undisputed material facts in the present case lead to the single 
inference that Employee was teasing his boss's wife for fun. The record shows 
the knee-kick was an action motivated by, and indulging, his personal 
gratification at performing practical jokes. The record contains no evidence 
Employee was engaged in the work assigned or was acting out in an ill-advised 
manner so as to engender a light-hearted and informal relationship with a 
customer in order to facilitate a potential sale. Plaintiff was not a customer. 
Employee was not doing what was proper, necessary, or usual in order to 
accomplish the assigned work. He was not doing what was customary within the 
trade. Accordingly, the trial court did not err in ruling as a matter of law 
that the knee-kick was clearly outside the scope of employment.
¶12 Ratification is defined as the giving of sanction and validity to 
something done by another. Shephard v. CompSource Oklahoma, 2009 OK 25, ¶14, 209 P.3d 288, 293. An example of 
ratification is when an employer acknowledges the alleged tort-feasor employee 
acted within the scope of employment. Id. The record in this case 
contains no evidence from which the trier of fact could find that Dealership 
acknowledged or admitted that Employee acted within the scope of his employment 
when he knee-kicked Baldwin. The trial court did not err in ruling Baldwin 
failed to establish a contested issue of fact as to ratification.
¶13 For the foregoing reasons, the trial court's order is AFFIRMED.

BELL, P.J., and MITCHELL, J., concur.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Supreme Court Cases CiteNameLevel 1999 OK 88, 998 P.2d 592, 70 OBJ        3260, N.H. v. Presbyterian Church (U.S.A.)Discussed 2005 OK 36, 126 P.3d 602, BAKER v. SAINT FRANCIS HOSPITALDiscussed 1996 OK 48, 914 P.2d 1051, 67 OBJ        1173, Carmichael v. BellerDiscussed 2009 OK 25, 209 P.3d 288, SHEPHARD v. COMPSOURCE OKLAHOMADiscussed 2013 OK 48, 306 P.3d 544, SHEFFER v. CAROLINA FORGE COMPANY, L.L.C.Discussed at Length










