                                                  SUPERIOR COURT
                                                          OF THE
                                             STATE OF DELAWARE

      VIVIAN L. MEDINILLA                                                             NEW CASTLE COUNTY COURTHOUSE
                 JUDGE                                                             500 NORTH KING STREET, SUITE 10400
                                                                                          W ILMINGTON, DE 19801-3733
                                                                                            TELEPHONE (302) 255-0626


                                                   January 12, 2016

      Gary S. Nitsche, Esquire                                                 Scott L. Silar, Esquire
      Weik, Nitsche & Dougherty                                                Reger Rizzo & Darnall LLP
      305 N. Union Street, 2nd Floor                                           Brandywine Plaza East
      P.O. Box 2324                                                            1523 Concord Pike, Suite 200
      Wilmington, DE 19899                                                     Wilmington, DE 19803

                Re:           Austin C. McLain v. James C. Shockley and Lucky 7 Restaurant
                              C. A. No. N13C-02-139 VLM

      Dear Counsel:

            Upon the inquiry made by defense counsel, and as a follow-up to the
      bench ruling made on January 8, 2016, on Defendant’s Motion for Summary
      Judgment, this is the Court’s written decision.

                                         Facts and Procedural History

                On February 18, 2013, Austin McLain (“Plantiff”) filed a complaint
      against Defendant Lucky 7 Restaurant (“Defendant”), seeking damages for
      personal injury and asserting causes of action under both the doctrine of
      respondeat superior and a theory of negligence. The causes of action arose from
      an altercation that occurred on November 9, 2011, wherein Plaintiff alleges that
      a bouncer (“Shockley”), 1 employed by Defendant, assaulted Plaintiff
      immediately after he exited Defendant’s establishment.

                 Defendant moved for summary judgment against Plaintiff under
      Delaware Rule of Civil Procedure 56. This Court considers whether Defendant
      is entitled to summary judgment on Plaintiff’s claims for causes of action under
      the doctrine of respondeat superior and a theory of negligence. Following

1
    Plaintiff obtained a default judgment against this individual defendant.
    written submissions and oral arguments, this Court finds that dismissal is not
    appropriate and Defendant’s Motion must be DENIED.

                                           Standard of Review

              When deciding a motion for summary judgment under Rule 56,
    summary judgment may only be granted where there are no genuine issues of
    material fact and the moving party is entitled to judgment as a matter of law. 2
    Summary judgment will not be granted if there is a material fact in dispute or if
    “it seems desirable to inquire thoroughly into [the facts] to clarify the application
    of the law to the circumstances.” 3 In considering the motion, “[a]ll facts and
    reasonable inferences must be considered in a light most favorable to the non-
    moving party.” 4

                                           Respondeat Superior

               Defendant first argues that there is no dispute as to facts that would
    allow this Court to find Defendant liable to Plaintiff under the doctrine of
    respondeat superior. Under Delaware law, an employer will be liable for the
    tortuous acts of an employee under respondeat superior if those acts are
    performed within the scope of employment.5 Conduct is within the scope of
    employment if it (i) is of the type the employee was hired to perform; (ii) takes
    place within the authorized time and space limits; and (iii) is at least partially
    motivated by a purpose to serve the employer. 6 The question of whether
    conduct is within the scope of employment is usually a close and difficult
    question. 7 “[It is] not for the decision of the judge as a matter of law, but [is a
    question] to be determined by the jury, a cross-section of the public especially
    adapted to judge the actions of people in the light of what is reasonable. 8 In
    other words, it is generally a question for the jury, unless the facts are so clear
    that they must be decided as a matter of law. 9

          Here, the record establishes that Shockley was employed as a bouncer for
    Defendant before and after this altercation. Witnesses saw more than two, and

2
  Super Ct. Civ. R. 56(c).
3
  Ebersole v. Lowengrub, 180 A.2d 467, 469 (Del. 1962).
4
  Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986).
5
  Drainer v. Garrett, 1995 WL 338700, at *11 (Del. Super. 1995).
6
  Draper v. Olivere Paving & Construction Co., 181 A.2d 565, 570 (Del. 1962).
7
  Doe v. State, 76 A.3d 774, 776 (Del. 2013).
8
  Id. (citing Draper, 181 A.2d at 571).
9
  Draper, 181 A.2d at 570.

                                                       2
     possibly up to four, bouncers involved in an incident inside the establishment
     when Plaintiff was either voluntarily or involuntarily forced outside. 10 Although
     more than two bouncers were witnessed in the initial incident inside the
     establishment, employment records show that only two bouncers were on the
     payroll. While the security manager testified that Shockley had been terminated
     one month earlier, he stated that he directed Shockley to go home instead of
     calling law enforcement after the assault. Further, there are no records
     confirming that Defendant terminated Shockley’s employment and evidence that
     he was employed by Defendant after the altercation.

             There is a dispute as to whether Shockley was acting within the scope of
     his employment at the time of the altercation with Plaintiff. Even if not on the
     payroll that night, since a jury could also determine that Shockley was acting as
     a bouncer or assisting other bouncers in his capacity, there is a genuine issue of
     material fact as to whether Shockley was acting on behalf of Defendant under an
     agency theory. As such, Defendant is not entitled to summary judgment on
     Plaintiff’s claim for a cause of action under the doctrine of respondeat superior.

                                                    Negligence

             Defendant secondly argues that because the altercation occurred in the
     parking lot, Defendant cannot be liable under a theory of negligence.
     Specifically, Defendant asserts that it had no duty to monitor, guard, and/or
     patrol the parking lot area because Defendant’s lease with its Landlord expressly
     provides that the parking lot was under the exclusive control and management of
     the Landlord.

            In Delaware, it is well-settled law that business owners have a duty to
     exercise reasonable care to protect patrons from foreseeable danger. 11 Those
     patrons, known as business invitees, are defined as persons who are invited to
     enter or remain on land for a purpose directly or indirectly connected with
     business dealings with the possessor of land. 12

             Here, while the parties agree that an incident began inside Defendant’s
     establishment, they disagree as to whether these acts continued to “spill over”

10
   Plaintiff alleges that, while in the establishment, Defendant’s employees put Plaintiff in a headlock and pinned
him down. He alleges that bouncers then forcefully removed Plaintiff from the bar while a group of approximately
30 people were following him and yelling threats of physical violence.
11
   McCutchin v. Banning, 2010 WL 23712, at *2 (Del. Super. 2010).
12
   Durham v. Leduc, 782 A.2d 263 (Del. 2001).

                                                         3
  into another area outside of the establishment. Plaintiff alleges that because the
  altercation began in Defendant’s establishment, Defendant owed a duty to
  Plaintiff to see to it that he safely exited the premises. Notably, Defendant’s
  security manager identified that the location of the altercation was right outside
  Defendant’s exit doors; the record remains unclear if the altercation occurred
  there or in another area of the parking lot that may also have been under the
  control of Defendant as a possessor of land.

            This Court finds that there exists genuine issues of material fact,
  including: whether the altercation was a continuation of the incident that began
  in Defendant’s establishment; where the altercation actually occurred; and
  whether Defendant’s conduct that directed Plaintiff outside to the parking lot, or
  its exit doors, implicates its duty to exercise reasonable care in this case. As a
  result, Defendant is also not entitled to summary judgment on Plaintiff’s claim
  for a cause of action under negligence.

            IT IS SO ORDERED.

                                                   Sincerely,



                                                   Vivian L. Medinilla
                                                   Judge

VLM: sj

cc:   Prothonotary




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