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April 16, 1999
Record No. 981171




Michael P. McWeeny, Judge
Present: All the Justices

In this appeal of a judgment in a tort action,
we consider whether the circuit court erred in instructing the
jury on the doctrine of respondeat superior.

The plaintiff, Charlotte H. Enger, filed her
amended motion for judgment against Geo Asfaw, Giant Food Stores,
Inc., and Giant of Maryland, Inc. She alleged, among other
things, that she incurred personal injuries when she was attacked
by Asfaw, an employee of Giant of Maryland, Inc. The plaintiff
nonsuited her claims against Asfaw and Giant Foods, Inc., and at
the conclusion of a trial, the jury returned a verdict in favor
of the plaintiff in the amount of $137,000. The circuit court
entered a judgment confirming the verdict, and Giant of Maryland

Applying established principles of appellate
review, we shall summarize the evidence in the light most
favorable to the plaintiff, who comes to this Court armed with a
jury verdict confirmed by the circuit court.

The plaintiff went to the defendant’s store to
purchase some groceries. She proceeded to the store’s produce
section to select some bananas. While the plaintiff was in the
store, Kenneth M. Brown, the store’s manager, saw a piece of
celery that had fallen on the floor in the produce area, and he
directed Asfaw, a produce clerk, to pick up the celery. Asfaw
refused to do so, walked toward Brown, stood within an inch of
Brown’s face, and stated: "You don’t know who I am. I’m the
devil. I’m going to burn you." Brown stepped back, and he
"motioned" to Julio Rivera, a store employee, "to
come over . . . [t]o witness what [Asfaw] had said
. . . ."

Rivera approached Asfaw from behind, touched
him on the shoulder, and said, "[h]ey, man." Asfaw
pushed Rivera and assaulted him with karate kicks and punches. As
Asfaw was attacking Rivera, Asfaw’s foot almost hit the plaintiff
in her face. She testified: "I walked to the bananas and
picked up two bananas and started to turn and put them in the
basket. . . . [W]hen all of a sudden a man’s foot
and leg . . . that’s all I saw was this foot and leg
come kicking right in front of my face with great force. It was
such a shock . . . I could even feel it as it just
missed me."

After Asfaw finished attacking Rivera, Asfaw
decided to leave the store, and he began to walk toward the door.
While leaving, he began to remove a name tag that was affixed to
a red jacket that store employees were required to wear. The
plaintiff testified: "And I thought, well, he’s going to try
to leave. And I said [to Asfaw], where are you going? What is
your name? Why are you taking — and he just looked at me.
And I said, why are you taking off your name tag? And then he
slugged me, just power. Just reached around and I went flying
across the floor." Asfaw attacked the plaintiff by
delivering a "karate type of blow" to her chest. As a
result of the impact from the blow, the plaintiff sustained
injuries to her foot and ankle.

At trial, the trial court granted the following
jury instruction over the defendant’s objection:

"An act is within the scope of
employment if it is incidental to the employer’s business
and is done to further the employer’s interest. If an
employee departs so far from his duties that his acts are
no longer for his employer’s benefit, then his acts are
not within the scope of his employment. However, if the
tortious act of the employee arose out of an activity
which was within the employee’s scope of employment or
within the ordinary course of business, then that act may
be considered to be within the scope of employment."

The defendant argues that the last sentence of
this instruction is an incorrect statement of law because it
attempts to make the employer liable for any tort committed while
"at work," even though the employee’s acts may have
been committed outside the scope of employment. Responding, the
plaintiff argues that the challenged jury instruction is a
correct statement of law and that the trial court did not err by
granting it. We disagree with the plaintiff.

Initially, we observe that pursuant to the
doctrine of respondeat superior, an employer is
liable for the tortious acts of its employee if that employee was
performing the employer’s business and acting within the scope of
the employment when the tortious acts were committed. Plummer
v. Center Psychiatrists, Ltd., 252 Va. 233, 235, 476
S.E.2d 172, 173 (1996); Kensington Assocs. v. West,
234 Va. 430, 432, 362 S.E.2d 900, 901 (1987); McNeill v. Spindler,
191 Va. 685, 694-95, 62 S.E.2d 13, 17 (1950). Even though the
doctrine of respondeat superior is firmly
established in Virginia, difficulties often arise in the
application of the doctrine to particular facts. Generally, the
inferences to be drawn from the established facts are within the
province of a jury. Commercial Bus. Sys. v. BellSouth
Servs., Inc.
, 249 Va. 39, 44, 453 S.E.2d 261, 265 (1995); Tri-State
Coach Corp.
v. Walsh, 188 Va. 299, 308, 49 S.E.2d 363,
366 (1948).

In Davis v. Merrill, 133 Va. 69,
77-78, 112 S.E. 628, 631 (1922), we established the following
test to determine whether an employee acted within the scope of
his employment:

"[T]he test of the liability of
the master for the tortious act of the servant, is not
whether the tortious act itself is a transaction within
the ordinary course of the business of the master, or
within the scope of the servant’s authority, but whether
the service itself, in which the tortious act was done,
was within the ordinary course of such business or within
the scope of such authority."

We have consistently applied this test in our
jurisprudence. See Commercial Bus. Sys., 249 Va. at
44, 453 S.E.2d at 265; United Brotherhood v. Humphreys,
203 Va. 781, 786, 127 S.E.2d 98, 102 (1962), cert. denied,
371 U.S. 954 (1963). Accord Tri-State Coach Corp.,
188 Va. at 305-06, 49 S.E.2d at 366.

A comparison of our established test with the
challenged jury instruction compels us to conclude that the jury
instruction is erroneous. Under our aforementioned test, an
employer is responsible for an employee’s tortious act if that
act was within the scope of the duties of the employment and in
the execution of the service for which the employee was engaged. Accord
Tri-State Coach Corp., 188 Va. at 306, 49 S.E.2d at 367.
The challenged jury instruction differs from the test that we
have consistently applied because the instruction allows the jury
to find the employer liable for any tort committed during the
employee’s employment, even if the service that the employee was
performing when he committed the tortious acts was not within the
ordinary course of the employer’s business or not within the
scope of the employee’s authority.

We reject the plaintiff’s contention that the
defendant’s objection to the instruction is merely a matter of
"an elevation of style over substance." Rather, the
jury instruction requires that the jury impose a different test
than the test this Court has consistently approved.

Accordingly, we will reverse the judgment of
the circuit court, and we will remand the case for a new trial.
In view of our disposition of this case, we need not consider the
litigants’ remaining arguments.

Reversed and remanded.