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November 3, 2000

Record No. 992179

Present: All the Justices





FROM THE circuit court of fauquier County

H. Selwyn Smith, Judge Designate

In this appeal, we consider issues relating to
the doctrine of respondeat superior, sanctions imposed by the
trial court related to the late identification of witnesses, the
bifurcation of a civil trial, and jury instructions on the tort
of negligent hiring. Because these issues relate to discrete
rulings made by the trial court in a voluminous record, we will
address each in turn, stating the relevant facts and proceedings
within the discussion.


Respondeat Superior

On January 30, 1997, Laura Majorana filed a
motion for judgment against Crown Central Petroleum Corporation
(Crown) and Kuldip Singh Bains. Majorana alleged in her motion
for judgment that on March 11, 1996, Bains was working as a
station attendant at Crown’s retail gas station in
Warrenton. The gas station has self-service gasoline pumps and a
payment booth where soft drinks are also displayed for sale.
Inside this booth, a payment counter separates customers from
employees of the gas station.

Majorana alleged that she stopped at this gas
station, where she was a regular customer, to purchase gasoline.
When she attempted to pay for her purchase with a credit card,
Bains produced a small black notebook and refused to complete the
transaction unless she provided him with her telephone number.
Bains told Majorana that "I tell my friends I am going to
marry you." When Majorana refused to give Bains her
telephone number, Bains became angry, refused to return her
credit card, told her to get some sodas, and "take a
break" while he attended to purchases of other customers.

Majorana further alleged that when the other
customers had paid and left, Bains moved from behind the counter,
lunged at her, and attempted to kiss her. He then grabbed her
breasts, rubbed his body against hers, "and made an
animal-like conquering scream." Bains then returned to the
attendant’s side of the payment counter and told Majorana
that he would pay for her gas. Majorana demanded her credit card
and receipt and Bains complied.

Seeking $1,000,000 in compensatory damages and
$4,000,000 in punitive damages, Majorana’s motion for
judgment asserted various theories of liability including assault
and battery and intentional infliction of emotional distress
against Bains and Crown, gross negligence and simple negligence
against Crown for failing to maintain a safe environment for a
business invitee, and negligent hiring, training, and retention
of Bains against Crown. In her assertions of assault and battery
and intentional infliction of emotional distress, Majorana
included a claim that Crown was vicariously liable for
Bains’ acts performed within the scope of his employment
with Crown.

Although Bains initially was represented by
counsel, early in the proceedings he ceased cooperating with his
counsel, who sought and was granted permission to withdraw from
the case. After Bains failed to appear in further proceedings,
Majorana filed a motion for default judgment against Bains, which
the trial court granted.

Crown filed a demurrer to the motion for
judgment challenging the legal sufficiency under Virginia law of
claims for negligent training or retention, and claiming that an
employer’s duty of care does not go beyond the initial
hiring decision. A subsequent separate motion filed by Crown
sought summary judgment on the theory that Bains was not, as a
matter of law, acting within the scope of his employment in the
conduct which is the subject of Majorana’s claims of assault
and battery and intentional infliction of emotional distress.
Crown asserted that when Bains moved from behind the payment
counter, he was acting thereafter outside the scope of his
employment and against the interests of Crown. By order dated
February 9, 1999, the trial court overruled the demurrer and the
motion for summary judgment.

Crown filed a motion for reconsideration,
addressing only the respondeat superior issue raised in the
motion for summary judgment. Majorana, who had not previously
filed any written statement of her position on this issue, filed
a responding brief citing Plummer v. Center Psychiatrists,
, 252 Va. 233, 476 S.E.2d 172 (1996). She contended that Plummer
supported the trial court’s initial finding that her motion
for judgment sufficiently stated a cause of action against Crown
by raising a material question of fact as to whether Bains was
acting within the scope of his employment when he assaulted her.
By order dated April 9, 1999, the trial court granted
Crown’s motion for reconsideration and entered summary
judgment for Crown on the claims of assault and battery and
intentional infliction of emotional distress. Majorana assigns
error to this ruling and the subsequent denial of her post-trial
motion for reconsideration of this issue.

Although Crown sought summary judgment on this
issue, it relied exclusively on the allegations of the motion for
judgment to support its argument that Bains was acting outside
the scope of his employment. Although Rule 3:18 permits a trial
court to enter summary judgment on the pleadings, judgment
"shall not be entered if any material fact is genuinely in
dispute." This "assures that parties’ rights are
determined upon a full development of the facts, not just upon
pleadings." Commercial Business Systems, Inc. v. Halifax
, 253 Va. 292, 297, 484 S.E.2d 892, 894 (1997). In this
procedural posture, the issue presented in this case is whether
the facts alleged in the motion for judgment are sufficient to
support the plaintiff’s legal conclusion that the employee
acted within the scope of his employment when he committed the
wrongful acts against the plaintiff and, thus, raise a material
question of fact not amenable to resolution by summary judgment.

In Plummer, we held that an allegation
that the employee, a therapist, had engaged in an improper sexual
relationship with a patient stated a cause of action against his
employer under the doctrine of respondeat superior. 252 Va. at
237, 476 S.E.2d at 174. Majorana asserts on appeal, as she did
below, that the rationale of Plummer applies with equal
force to the allegations in her motion for judgment with respect
to Crown’s liability for Bains’ acts. Crown notes that
in Plummer there was an allegation that the
therapist’s "education, experience, and knowledge of
the plaintiff" facilitated his seduction of the patient. Id.
at 237, 476 S.E.2d at 174-75. Crown contends that the absence of
similar allegations in Majorana’s motion for judgment of
circumstances in the employment facilitating Bains’ assault
materially distinguishes her pleading from the pleading in Plummer.
We disagree with Crown.

In Gina Chin & Associates, Inc. v. First
Union Bank
, 260 Va. ___, ___ S.E.2d ___ (2000), also decided
today, we have discussed in detail the necessary elements of a
cause of action for liability against an employer for the willful
and wrongful acts of its employee premised upon the doctrine of
respondeat superior. Accordingly, we need not reiterate that
discussion here. It is sufficient to say that in such cases,
while the plaintiff bears the burden of persuasion on the
issue whether the employee was within the scope of the employment
when the act which caused the injury was committed, the
plaintiff’s burden of production on that issue is met
by establishing the employer-employee relationship at that time.
When the plaintiff presents evidence sufficient to show the
existence of an employer-employee relationship, she has
established a prima facie case triggering a presumption of
liability. McNeill v. Spindler, 191 Va. 685, 694-95, 62
S.E.2d 13, 17-18 (1950). The burden of production then
shifts to the employer, who may rebut that presumption by proving
that the employee had departed from the scope of the employment
relationship at the time the injurious act was committed. Kensington
Associates v. West
, 234 Va. 430, 432-33, 362 S.E.2d 900, 901
(1987). If the evidence leaves in doubt the question whether the
employee acted within the scope of the employment, the issue is
to be decided by the jury and not as a matter of law by the trial
court. Id.; see also Plummer, 252 Va. at
235, 476 S.E.2d at 174.

While we noted in Plummer that the
motion for judgment in that case contained specific allegations
of circumstances that facilitated the wrongful act which caused
the plaintiff’s injury, these allegations were not
dispositive to our decision. The sole issue in that case was
whether the trial court erred by holding, as a matter of law,
that the motion for judgment did not state the necessary elements
of respondeat superior within its factual allegations. Clearly,
the motion for judgment here contains an allegation of an injury
caused by the willful and wrongful act an employee committed in
the course of the employer-employee relationship and within the
scope of his employment. It alleges that Bains was Crown’s
employee, that he assaulted Majorana at his regular place of
employment, and that he did so while he was performing the
business of his employer for which she was the employer’s

Thus, as we said in Plummer, "at
this stage of the proceedings, there simply are not sufficient
facts which would permit us to hold, as a matter of law, that the
defendant has met its burden of showing that its employee was not
acting within the scope of his employment." 252 Va. at 237,
476 S.E.2d at 175. Accordingly, we hold that the trial court
erred in entering summary judgment for Crown on the allegations
in Majorana’s motion for judgment asserting Crown’s
liability for assault and battery and intentional infliction of
emotional distress by respondeat superior.

Discovery Sanctions

The trial court set a discovery cutoff date of
thirty days prior to December 16, 1998, the original date set for
trial. On December 9, 1998, Majorana’s counsel placed an
advertisement in a local newspaper seeking witnesses or
information concerning any other known sexual assaults or similar
behavior by Bains. The advertisement resembled a "wanted
poster," made allegations that Bains was a sexual predator,
offered a "[r]eward based on useful information provided for
the current lawsuit against Crown Central Petroleum and Kuldip
Singh Baines (sic)," and directed persons with
information to "Call: Attorney" at two phone numbers.

Two days later, Crown filed a motion asserting
that the advertisement had tainted the jury pool. Crown sought,
among other things, dismissal of the case with prejudice or a
change of venue. In the alternative, Crown sought a continuance
of the trial date.

By order entered on December 16, 1998, the
trial court held that there was a "substantial probability
that this advertisement might taint the jury pool summoned"
for the trial date. The trial court denied the motions for
dismissal and change of venue, alternatively granting the motion
for a continuance and setting a new trial date beginning on March
3, 1999. The trial court ordered that Majorana produce all notes
relating to the responses to the advertisement along with the
names and phone numbers of the respondents. The trial court
deferred for further consideration a request by Crown that it be
allowed to depose the witnesses discovered through the

Crown filed a subsequent motion to depose the
witnesses found as a result of the advertisement, to exclude the
testimony of any witnesses found as a result of the
advertisement, and to exclude any evidence of wrongful acts by
Bains which occurred after his assault on Majorana. The trial
court granted this motion in its entirety and directed that
Majorana bear the cost of the proposed depositions. In ruling
that the testimony of witnesses discovered through the
advertisement would be excluded, the trial court stated that its
ruling was limited only to the witnesses being called for direct
testimony, and that there was no limitation on their use as
rebuttal witnesses. In a subsequent order, however, the trial
court reversed its decision to exclude the testimony of these
witnesses, but limited their testimony to evidence of incidents
occurring before the assault on Majorana.

Majorana assigns error to the trial
court’s "excluding the testimony of witnesses
discovered by means of the newspaper advertisement placed by
plaintiff’s counsel." On brief, Majorana addresses this
assignment of error in a single paragraph without citation to
authority and without reference to the trial court’s
ultimate ruling permitting the witnesses to testify, but limiting
the scope of that testimony. Assuming this assignment of error
was intended to address the trial court’s ultimate ruling,
the failure to present argument on that ruling constitutes a
waiver and, accordingly, we do not consider the merits of this
assignment of error. See Atkisson v. Wexford Associates,
254 Va. 449, 454 n. *, 493 S.E.2d 524, 527 n. * (1997).

Majorana also assigns error to the trial
court’s assessing against her the cost of Crown’s
deposing the witnesses discovered through the advertisement.
Majorana contends that the trial court lacked the authority to
impose a monetary sanction in the form of discovery cost unless
there was an express finding of contempt.

On brief, Crown contends that the trial court
offered Majorana the option of bearing the cost of the
depositions as a condition for permitting the witnesses to
testify and that Majorana acquiesced to this condition. While
this may be a logical inference from the trial court’s
reversal of its decision to exclude the witnesses entirely, the
record and, specifically, the trial court’s orders do not
reflect this rationale for imposing the cost of the depositions
against Majorana. However, neither does the record reflect, as
Majorana appears to contend, that the trial court imposed the
cost as a contempt sanction for placing the ethically
questionable advertisement, disrupting the proceedings by the
late identification of witnesses, and creating a need for further
discovery following the cutoff date. Indeed, the record is mostly
silent as to the rationale for the trial court’s action.

Nonetheless, because our decision to reverse
the trial court’s ruling concerning respondeat superior will
require a remand for further proceedings, we recognize that the
circumstances of the further proceedings may lead the trial court
to reconsider the imposition of the cost of these depositions on
Majorana. See Lake v. Northern Virginia Women’s
Medical Center
, 253 Va. 255, 263, 483 S.E.2d 220, 224 (1997).
At the very least, the trial court will have the opportunity to
amplify the record as to the basis for imposing the cost of the
depositions against Majorana. Accordingly, we express no opinion
on this issue at this time, but will leave the trial court’s
action undisturbed pending further proceedings. Id.

Bifurcation of Civil Trial

After the trial court sustained Crown’s
demurrer to the claims of assault and battery and intentional
infliction of emotional distress, Crown filed a motion to
bifurcate the trial into liability and damages phases. Crown
contended that bifurcation of the trial "would be in the
interests of judicial economy . . . and would
streamline the proceeding." The trial court’s order
granting Crown’s motion was endorsed by Majorana’s
counsel as "objected to for the reasons noted in open

Majorana failed to provide a transcript or
authorized statement of fact summarizing the argument made
against Crown’s motion. In the absence of a record
reflecting the reason for the objection made in the trial court,
we are unable to discern whether the objection raised on appeal
was properly preserved below. Accordingly, we will not consider
Majorana’s assignment of error to the trial court’s
granting of the motion to bifurcate the trial. Rule 5:25.

Jury Instructions on
Negligent Hiring

At the conclusion of the evidence, Majorana
proffered two instructions concerning the failure of Crown to
present evidence of any background investigation of Bains at the
time he was first employed. The first instruction read:

Under the circumstances of this case, by the
failure of Crown to produce as a witness their current employee
Vatos—who was the manager of Crown in Warrenton on
3/11/96—where the Bains station records were supposed to be
maintained (job application etc.), to explain the absence of that
record (after a request to produce has been made by Laura
Majorana) you may presume that the witness would have produced
testimony adverse to Crown as to the job application, or other

The second instruction read:

Under the circumstances of this case, by the
failure of Crown to produce any written job application of their
former employee Bains, you may presume that it was never provided
by Bains, or if provided it contained adverse information about
Bains, (no references).

The trial court refused both of these
instructions. Crown proffered two instructions on negligent
hiring. The first stated the elements of that cause of action.
The second addressed the issue of "imputed knowledge"
and stated that Majorana had the burden to show "[t]hat the
investigation Crown should have conducted is one that Crown is
obligated to do in the exercise of reasonable care considering
both Crown’s business and Bains’ position as a gas
station attendant." This instruction further stated that
Majorana must show "[t]hat such investigation would have put
Crown on notice that its hiring of Mr. Bains might reasonably
lead to an assault on the plaintiff." The trial court
granted both these instructions.

The jury, which was given interrogatories,
returned its verdict for Crown, and Crown was dismissed from the
case. The jury then considered damages against Bains and awarded
Majorana $70,140 in compensatory damages and $60,000 in punitive

In her third assignment of error, Majorana
asserts that "[t]he trial court improperly instructed the
jury on the issue of negligent hire." In her fourth
assignment of error, Majorana asserts, in part, that "[t]he
trial court erred in denying plaintiff’s motion to
reconsider the court’s decisions on the issue[] of
. . . the legal standard for proving negligent
hire." The "motion for reconsideration" referenced
by this latter assignment of error was essentially a motion to
set aside the jury’s verdict. These assignments of error are
without merit.

Majorana, relying on Southeast Apartments
Management v. Jackman
, 257 Va. 256, 513 S.E.2d 395 (1999),
asserts that an employer is required to conduct a reasonable
background investigation of a prospective employee and that the
failure to do so establishes the employer’s liability.
Because Crown failed to produce evidence of what background
investigation, if any, it undertook prior to hiring Bains,
Majorana contends that she was entitled to have the jury
instructed that the failure to produce such evidence raised a
presumption that Crown had either failed to investigate
Bains’ background or had done so and discovered adverse

Majorana misconstrues the holding in Southeast
. In that case, we held that an employer’s
liability for negligent hiring "is predicated on the
negligence . . . in placing a person with known
propensities, or propensities which should have been discovered
by reasonable investigation, in an employment position in which,
because of the circumstances of the employment, it should have
been foreseeable that the hired individual posed a threat of
injury to others." 257 Va. at 260, 513 S.E.2d at 397. We did
not thereby hold that the absence of proof by the employer of a
"reasonable investigation" of the employee raises a
presumption that either no investigation was conducted or that if
conducted, it would have revealed that the employee posed a
threat of injury to others.

To the contrary, it is a paradigm of civil
trials that the burden of proof falls upon the plaintiff. In the
case of a claim of negligent hiring, proof of the failure to
investigate a potential employee’s background is not
sufficient to establish the employer’s liability. Rather,
the plaintiff must show that an employee’s propensity to
cause injury to others was either known or should have been
discovered by reasonable investigation. This was the substance of
the instructions proffered by Crown and given by the trial court.

The record shows that Majorana produced no
evidence of what form of reasonable investigation of Bains’
background Crown should have undertaken. Nor does any evidence in
the record support the proposition that a reasonable
investigation would have revealed that Bains had a propensity to
commit assaults and, thus, posed a threat to others in his
employment with Crown. Accordingly, we hold that Majorana’s
instructions were not correct statements of law and were properly
refused by the trial court. Similarly, the trial court did not
err in denying Majorana’s motion to set aside the jury
verdict on the ground that it had not properly instructed the
jury on this issue.


For these reasons, we will reverse the trial
court’s entry of summary judgment for Crown on
Majorana’s claims of liability under respondeat superior for
assault and battery and intentional infliction of emotion
distress, affirm the judgment in favor of Crown on the claims of
negligence, gross negligence, and negligent hiring and retention,
and remand the case for further proceedings consistent with the
views expressed in this opinion.

Affirmed in part,

reversed in part,

and remanded.


[1] Crown contends that Majorana
failed to state her objection with reasonable certainty to the
trial court’s ruling and, thus, is barred from asserting
this issue on appeal. We disagree. We have stated that when a
plaintiff assigns error to the sustaining of a demurrer,
recitation of her position on the issue, combined with her
objection to the trial court’s ruling noted on the order,
these actions are sufficient to preserve the issue for appeal. Luckett
v. Jennings
, 246 Va. 303, 306, 435 S.E.2d 400, 401 (1993).
This rationale is equally applicable here to Majorana’s
objection to the trial court’s ruling on Crown’s motion
for summary judgment on the pleadings. Moreover, having briefed
the issue in a post-trial motion for reconsideration, Majorana
adequately preserved the issue for review in this appeal.

[2]While Crown’s motion was labeled one for summary
judgment, it is apparent from the record that the trial
court’s ruling reflected the trial court’s conclusion
that Majorana’s motion for judgment failed to state a legal
claim, and hence treated Crown’s motion as a demurrer. The
distinction between summary judgment and demurrer is significant
and well settled. However, in this case we reach the same result
upon the record presented for our consideration.