UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ESTATE OF MARK CRAFT; CYNTHIA
DOYLE, individually and as personal
representative; CARL G. CRAFT,
Plaintiffs-Appellants,
                                                                        No. 96-2394
v.

HYATT CORPORATION; HYATT HOTELS
CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-95-1219-PJM)

Submitted: June 17, 1997

Decided: June 30, 1997

Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul S. Thaler, Lars H. Liebeler, THALER & LIEBELER, Washing-
ton, D.C., for Appellants. Matthew J. Kastantin, Rockville, Maryland,
for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellants appeal from a district court order granting the Defen-
dants' motion for summary judgment and dismissing their claims for
negligence, wrongful death, and intentional infliction of emotional
distress. Specifically, Appellants assert that summary judgment was
inappropriate because: (1) Defendants' employee was acting within
the scope of his employment when he murdered another employee;
(2) a secondary beneficiary with a compensable claim has standing to
sue for wrongful death when a primary beneficiary exists but does not
have a compensable claim; and (3) an adequate claim was made for
intentional infliction of emotional distress. Finding no reversible
error, we affirm.

The essential facts of this case are undisputed. Mark Craft started
working for the Bethesda Hyatt as a security guard in 1991. Approxi-
mately one year later, the hotel hired Gregory Broughton as head of
security. At some point, Craft started filing reports noting problems
with the hotel's security and fire safety. Management personnel,
including Broughton, ordered Craft to stop filing these reports, but he
continued. There were several altercations between Craft and Brough-
ton, including at least one instance in which Broughton pushed Craft.
Craft complained about Broughton's allegedly abusive conduct to
management personnel on several occasions, but they took no action.

One evening in 1994, Broughton, who had a history of domestic
violence, murdered his wife at a gas station in Woodbridge, Virginia.
Broughton was off duty at the time. Broughton then drove to Whea-
ton, Maryland, where he set his car on fire before taking the Metro
to the Bethesda Hyatt. Broughton entered the hotel through the
employees' entrance and walked directly to the security office, which
was nearby, where he fatally shot Craft, who was on duty at the time.
Broughton then traveled to the Lincoln Memorial, where he knelt in

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front of Lincoln's statue for several minutes before fatally shooting
himself.

Summary judgment is appropriate when there is "no genuine issue
of material fact," given the parties' burdens of proof at trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed. R. Civ. P.
56(c). In determining whether the moving party has shown that there
is no genuine issue of material fact, a court must assess the factual
evidence and all inferences to be drawn therefrom in the light most
favorable to the non-moving party. Ross v. Communications Satellite
Corp., 759 F.2d 355, 364 (4th Cir. 1985). The appellate standard of
review of a grant of summary judgment is de novo. Higgins v. E.I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988). In
the present case, we find that the district court properly granted the
Defendants' motion.

In general, an employer is liable for torts committed by an
employee that take place within the scope of employment. Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1351 (4th Cir. 1995). Therefore,
we must assess whether Broughton was acting within the scope of his
employment when he murdered Craft and whether his conduct was
foreseeable in determining Defendants' liability under Maryland law.
See Sawyer v. Humphries, 587 A.2d 467, 471 (Md. 1991). We find
that Defendants could not have foreseen that Broughton would mur-
der Craft. Moreover, "where the conduct of the servant is unprovoked,
highly unusual, and quite outrageous, courts tend to hold that this in
itself is sufficient to indicate that the motive was a purely personal
one and the conduct outside the scope of employment." Id. (citation
and internal quotation marks omitted). We agree with the district
court's finding that Broughton's actions were the type of bizarre and
outrageous conduct which, under Maryland law, fell outside the scope
of employment as a matter of law. Since we find no basis for the
wrongful death claim, we decline to address the standing issue con-
cerning Craft's sister. Even if she had standing, her claim would fail
on the same grounds.

Contrary to the parties' contentions, we find that the district court
properly granted summary judgment in favor of the Defendants on
Appellants' claim for intentional infliction of emotional distress. We
find that Appellants adequately pled the elements of this tort in their

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complaint, thus rendering dismissal inappropriate. However, we find
that the district court properly found, after hearing Appellants' evi-
dence on this issue, that the evidence was insufficient as a matter of
law to support the claim, making summary judgment the correct dis-
position.

To establish a claim for intentional infliction of emotional distress,
Appellants must establish that (1) the Defendants' conduct was inten-
tional or reckless; (2) the conduct was extreme and outrageous; (3)
there was a causal link between the wrongful conduct and the emo-
tional distress; and (4) the emotional distress was severe. Harris v.
Jones, 380 A.2d 611, 614 (Md. 1977). Liability lies under the second
element only where "the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. . . . [M]ere insults, indignities, threats, annoy-
ances, petty oppressions, or other trivialities" are insufficient. Id.

In the present case, the district court properly held that manage-
ment's and Broughton's conduct toward Craft did not rise to the level
of extreme and outrageous conduct. The challenged conduct here con-
sisted primarily of ignoring Craft's reports concerning alleged safety
and security violations, ordering Craft to refrain from making any fur-
ther reports, ignoring Craft's complaints concerning Broughton, pos-
sible efforts to undermine Craft's authority and credibility with other
employees and management, and Broughton pushing Craft on at least
one occasion. While unprofessional, we find that this type of conduct
was not "atrocious."

We therefore affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid the decisional process.

AFFIRMED

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