Parmenter v. J & B Enter., Inc., et al.


<- Return to Search Results


Docket Number: 2010-CA-01251-COA
Linked Case(s): 2010-CA-01251-COA ; 2010-CT-01251-SCT

Court of Appeals: Opinion Link
Opinion Date: 02-21-2012
Opinion Author: Russell, J.
Holding: Affirmed

Additional Case Information: Topic: Personal injury - Doctrine of respondeat superior - M.R.A.P. 28 - Course and scope of employment - Negligent hiring - Negligent training - Expert witness - M.R.E. 702 - Deposition testimony - M.R.E. 804(b)(1)
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell and Fair, JJ.
Concur in Part, Concur in Result 1: Irving, P.J., concurs in part and in the result without written opinion
Procedural History: Summary Judgment
Nature of the Case: CIVIL - TORTS OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE

Trial Court: Date of Trial Judgment: 06-03-2010
Appealed from: Marshall County Circuit Court
Judge: Henry L. Lackey
Disposition: TRIAL COURT GRANTED MCDONALD’S MOTION FOR SUMMARY JUDGMENT AND J&B ENTERPRISES’ MOTION FOR DIRECTED VERIDICT
Case Number: M2003-353

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Kerri Parmenter




RALPH STEWART GUERNSEY CARNELIA PETTIS FONDREN



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: J & B Enterprises, Inc. and McDonalds Corporation, Inc. JAY MARSHALL ATKINS HARRY CASE EMBRY PAUL PACIFIC BLAKE  
    Appellee #2:  

    Synopsis provided by:

    If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals
    hand downs please contact Tammy Upton in the MLI Press office.

    Topic: Personal injury - Doctrine of respondeat superior - M.R.A.P. 28 - Course and scope of employment - Negligent hiring - Negligent training - Expert witness - M.R.E. 702 - Deposition testimony - M.R.E. 804(b)(1)

    Summary of the Facts: Kerri Parmenter and her cousin, Dana Churchill, ordered food at the drive-thru window of McDonald’s in Holly Springs. Because their order was taking longer than they expected, Parmenter and Churchill entered the establishment to inquire about the status of their food. At some point, a verbal altercation occurred in the lobby between Parmenter and Kesha Jones, a cashier. After this verbal altercation occurred, Jones left the lobby and returned to the kitchen, where she retrieved a spatula. Thereafter, Jones returned to the lobby and proceeded to beat Parmenter with the spatula. Parmenter filed a complaint against McDonald’s and J&B Enterprises. Nowhere within Parmenter’s complaint did she allege assault, battery, or any intentional tort, and she did not name Jones as a defendant. The court granted summary judgment in favor of McDonald’s. After the entry of summary judgment in favor of McDonald’s, Parmenter and J&B Enterprises proceeded to trial. After Parmenter rested her case-in-chief, J&B Enterprises moved for a directed verdict, which was granted by the circuit court. Parmenter appeals.

    Summary of Opinion Analysis: Issue 1: Summary judgment Parmenter argues that the McDonald’s logo on the building and on the employees’ uniforms, the franchise agreement between J&B Enterprises and McDonald’s, and the fact that customers visit McDonald’s due to its reputation for good food warrant a finding that McDonald’s should be liable under the doctrine of respondeat superior. An employer is responsible for the torts of its employee only when the torts are committed within the scope of the employment. McDonald’s did not act as the master or employer of the Holly Springs McDonald’s franchise owned and operated by J&B Enterprises. James Byrd, the owner, testified McDonald’s did not own the subject location, and the franchise agreement did not dictate the day-to-day operations of the franchise. McDonald’s did not have the authority to hire or fire employees, and it did not own or operate the franchise at issue. Parmenter fails to cite any relevant authority to support her position. Thus, under M.R.A.P. 28, her argument is procedurally barred. In addition, her argument is without merit. McDonald’s cannot be held liable for the actions of Jones under the doctrine of respondeat superior because McDonald’s was not a master or employer of Jones. Issue 2: Directed verdict The test used in determining whether an employee’s tortious act is within the scope of his employment is whether it was done in the course of and as a means to the accomplishment of the purposes of the employment and therefore in furtherance of the master’s business. Also included in the definition of ‘course and scope of employment’ are tortious acts incidental to the authorized conduct. A master is not liable for its employee’s actions if the employee abandoned his employment and went about some purpose of his own not incidental to the employment. In this case, Jones was employed as a cashier at the time of her altercation with Parmenter, and nothing within her job description required her to involve herself in an altercation, whether verbal or physical, with patrons of the restaurant. Jones was clearly acting for purposes unrelated to her employment when she beat a customer with a spatula in the lobby of the restaurant, as nothing within her job description required her to engage in such behavior. Therefore, J&B Enterprises is not liable for Jones’s actions under the doctrine of respondeat superior. Parmenter also raised a claim for negligent hiring. In Mississippi, an employer will be liable for negligent hiring or retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness. If an employer exercises due care in the hiring of its employees, that employer will not be liable for the injuries of a third party unless that party can prove the employer knew or should have known of the incompetence and unfitness of the employee. In this case, Katina Daugherty, the former manager and supervisor, testified that criminal background checks are conducted on all applicants before the interview. If an applicant had a criminal record or a history of violence, that applicant would not be hired. Daugherty also testified that Jones was “not a violent person at all,” and she never saw Jones assault, attack, or curse at anyone. Parmenter failed to produce any evidence to show Jones had a criminal record or any violent tendencies, and there is nothing to indicate actual or constructive knowledge by J&B Enterprises. Therefore, the issue of negligent hiring is without merit. Parmenter also raises a claim for negligent training. There is no evidence in the record of improper or negligent training. Issue 3: Expert witness Parmenter argues the circuit court erred in initially allowing her expert to testify as an expert and later disqualifying him as an expert witness. Parmenter called the expert in support of her alleged mental damages. However, the court did not abuse its discretion under M.R.E. 702. The expert testified he was board certified in bariatric medicine (weight control), and he did his fellowship in family medicine. He further stated he was not board certified in psychiatry or psychology. Issue 4: Deposition testimony Parmenter argues that the deposition testimony of a clinical psychologist should have been admitted into evidence. The comment to M.R.E. 804(b)(1) explains that “[a]n essential ingredient of the former testimony exception has always been the unavailability of the declarant.” Parmenter failed to subpoena the psychologist, and she failed to properly designate the psychologist as a witness. Most importantly, however, Parmenter failed to prove the psychologist’s unavailability as required under Rule 804(b)(1).


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court