Miss. S. Ct. Splits 5-4 on Vicarious Liability Issue
On Thursday a divided Mississippi Supreme Court affirmed the grant of summary judgment in Akins v. Golden Triangle Planning & Development District, Inc. Here is the opinion.
Facts
The case was a vicarious liability case from the Circuit Court of Oktibbeha County. Plaintiff alleged that Golden Triangle owed him $80,628 in profits that were embezzled by a Golden Triangle employee. The trial court granted Golden Triangle summary judgment because the employee was acting outside the scope of her duties in stealing the money and Golden Triangle did not benefit from the illegal actions.
Majority Opinion
A five justice majority affirmed the trial court. Justice Carlson wrote the majority opinion joined by Chief Justice Waller and Justices Graves, Kitchens and Pierce.
The majority reasoned that the plaintiff could not be granted relief under a respondent superior theory because the employee's actions were for her own personal gain and were of no benefit to Golden Triangle. The majority and trial court applied the four part test for determining whether an employee was acting within the scope of employment in Commercial Bank v. Hearn, 923 So.2d 202 (Miss. 2006).
Dissenting Opinion
Justice Randolph wrote for the dissent joined by Justices Dickinson, Lamar and Chandler.
The dissent stated that the majority applied the wrong law by limiting its analysis to the respondent superior standard in Section 228 of the Restatement (Second) of Agency. The dissent argued that under Sections 219(2) and 261 of the Restatement (Second) of Agency, agency principles may impose liability on employers even where employees commit torts outside the scope of employment. Specifically, an employer may be liable in fraud/ dishonesty/ theft cases where the employee was aided in accomplishing the tort by the existence of the agency relationship. The dissent reasoned that there were genuine issues of material fact under these principles.
My Take
My initial reaction to the case was surprise as to the identity of the justices in the majority. If I had seen the two opinions without knowing the votes, I would have expected four of the five in the majority to join Justice Randolph's dissent. But on the whole, I like it when the Court is not predictable.
Without doing further research, I have to side with the minority. If the employee of a hotel or carwash steals something from my room or car, I want the owner of the hotel or carwash to be liable. I think they could be under the minority's reasoning, but not the majority's. Hopefully, I am wrong.
Yes, bad call by the majority; one can only hope that a good M/R flips one justice. Essentially, every business can now hang up a sign that says "Beware of Employees."
I ragged on the decision here.