{ "id": 8525009, "name": "B. B. WALKER COMPANY, Plaintiff v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant", "name_abbreviation": "B. B. Walker Co. v. Burns International Security Services, Inc.", "decision_date": "1993-01-05", "docket_number": "No. 9119SC1146", "first_page": "562", "last_page": "568", "citations": [ { "type": "official", "cite": "108 N.C. App. 562" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "44 ALR4th 620", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "83 ALR4th 1150", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "153 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565265 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0062-01" ] }, { "cite": "388 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307503 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0356-01" ] }, { "cite": "387 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489121, 2489031, 2489556, 2491254, 2492535 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0704-05", "/nc/325/0704-02", "/nc/325/0704-04", "/nc/325/0704-03", "/nc/325/0704-01" ] }, { "cite": "384 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489609, 2489066, 2491885, 2491031, 2489465 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0270-05", "/nc/325/0270-03", "/nc/325/0270-02", "/nc/325/0270-01", "/nc/325/0270-04" ] }, { "cite": "378 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528074 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0431-01" ] }, { "cite": "371 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 838", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514468, 2517295, 2518674, 2517460, 2515999 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0838-02", "/nc/322/0838-03", "/nc/322/0838-01", "/nc/322/0838-04", "/nc/322/0838-05" ] }, { "cite": "365 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521404 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0268-01" ] }, { "cite": "398 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497254 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0587-01" ] }, { "cite": "365 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 698", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570744 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0698-01" ] }, { "cite": "231 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "291 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558910 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/291/0666-01" ] } ], "analysis": { "cardinality": 570, "char_count": 12987, "ocr_confidence": 0.74, "pagerank": { "raw": 3.594181585901116e-07, "percentile": 0.8873806928512048 }, "sha256": "3ba592cebb08fb562b6d6eedabc9aad0a44fc0a5657c9be8af26cf276d104c13", "simhash": "1:07e2067f4ecbee27", "word_count": 2021 }, "last_updated": "2023-07-14T21:33:37.144077+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge ARNOLD concur." ], "parties": [ "B. B. WALKER COMPANY, Plaintiff v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant" ], "opinions": [ { "text": "WELLS, Judge.\nPlaintiff contends that the trial court committed reversible error in directing a verdict for defendant on the following claims: (1) a tort claim under the doctrine of respondeat superior; (2) a negligent hiring, supervision and retention claim; (3) a negligent breach of contract claim; and (4) a breach of contract claim.\nThe Standard of Review\n\u201cA motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff.\u201d Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1978). In determining whether a trial judge\u2019s ruling on defendant\u2019s motion for a directed verdict was proper, \u201cplaintiffs\u2019 evidence must be taken as true and all the evidence must be considered in the light most favorable to the plaintiffs, giving plaintiffs the benefit of every reasonable inference.\u201d West v. King\u2019s Dept. Store, Inc., 321 N.C. 698, 365 S.E.2d 621 (1988). \u201cA directed verdict is improper unless it appears, as a matter of law, that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish.\u201d Id. With these principles as our guide, we must determine whether the plaintiff\u2019s evidence, when considered in the light most favorable to plaintiff, was legally sufficient to withstand defendant\u2019s motion for a directed verdict as to any of its claims.\nRespondeat Superior\nPlaintiff first contends that the damages which plaintiff suffered as a consequence of the security guards\u2019 thefts were a legally compensable result of defendant\u2019s breach of a duty of care owed to the plaintiff by the defendant and that defendant should be liable for the guards\u2019 thefts under the doctrine of respondeat superior. Although plaintiff has not clearly enunciated its position on this point, it appears that plaintiff\u2019s respondeat superior argument is directed toward the conversion of plaintiff\u2019s property by defendant\u2019s employees. As a general rule, a principal will be liable for its agent\u2019s wrongful act under the doctrine of respondeat superior when the agent\u2019s act is (1) expressly authorized by the principal; (2) committed within the scope of the agent\u2019s employment and in furtherance of the principal\u2019s business \u2014 when the act comes within his implied authority; or (3) ratified by the principal. Medlin v. Bass, 327 N.C. 587, 398 S.E.2d 460 (1990). Thus, in order for plaintiff to recover under this claim, the evidence presented must sufficiently establish that the conduct of defendant and/or its agent falls within one of these categories.\nPlaintiff does not contend that the acts of theft committed by security guards Freedle and Albright were either authorized or ratified by defendant. Rather, plaintiff argues that the security guards were acting within the scope of their employment and in furtherance of defendant\u2019s business when the criminal acts occurred because defendant placed the guards in a unique position to steal plaintiff\u2019s property by hiring and assigning them to provide security at plaintiff\u2019s facility. The guards were alone on plaintiff\u2019s property at night and had access to the goods which they stole by nature of their employment. Therefore, plaintiff argues, in essence, that the thefts committed by the two security guards were so very closely connected to their employment duties that they were able to steal the very items they were employed to protect. Plaintiff then concludes that such conduct was naturally incident to their employment. We disagree.\n\u201cTo be within the scope of employment, an employee, at the time of the incident, must be acting in furtherance of the principal\u2019s business and for the purpose of accomplishing the duties of his employment.\u201d Troxler v. Charter Mandala Center, 89 N.C. App. 268, 365 S.E.2d 655, disc. review denied, 322 N.C. 838, 371 S.E.2d 284 (1988). \u201cIf an employee departs from that purpose to accomplish a purpose of his own, the principal is not [vicariously] liable.\u201d Id. Furthermore, this Court has stated that \u201cintentional tortious acts are rarely considered to be within the scope of an employee\u2019s employment.\u201d Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232, disc. review allowed, 325 N.C. 270, 384 S.E.2d 514, cert. granted, 325 N.C. 704, 387 S.E.2d 55 (1989), disc. review improvidently allowed, 326 N.C. 356, 388 S.E.2d 769 (1990).\nThe security guards\u2019 acts of theft were clearly contrary to, and not in furtherance of, the business of defendant which was to provide security for the facility and the property contained therein. In fact, the employees\u2019 thefts were indirectly contrary to the principal\u2019s business. The thefts resulted from the guards\u2019 personal motives; therefore, they cannot be deemed an act of their employer. Wegner v. Delicatessen, 270 N.C. 62, 153 S.E.2d 804 (1967). (Employer not answerable in tort for deliberate assault committed by employee.) Accordingly, the trial court properly concluded that plaintiff\u2019s evidence was not legally sufficient to go to the jury and support a verdict for plaintiff for conversion under the doctrine of respondeat superior.\nNegligent Hiring, Supervision and Retention\nNext, plaintiff contends that the evidence was legally sufficient to withstand defendant\u2019s motion for a directed verdict on plaintiff\u2019s claims of negligent hiring, supervision, and retention. We disagree.\nAs stated by our Supreme Court in Medlin v. Bass, supra, North Carolina recognizes a claim against an employer for the negligent hiring and retention of an employee where certain requirements are met. Drawing from Medlin and the cases cited and relied upon therein, it appears that in order to prevail on its claim in this case, plaintiff would have to prove (1) the wrongful act on which the claim is founded (the theft); (2) the incompetency of the guards to perform their duty, either by inherent unfitness for the job, or by showing such incompetence by previous conduct; and (3) either actual or constructive notice to defendant of the guards\u2019 unfitness or bad conduct.\nThere was no such showing in this case. While plaintiff alleged that defendant was negligent in hiring the guards, there was no showing that there was anything in the background of either man which should have put defendant on notice that either man was incompetent or otherwise unfit for the job. Plaintiff centers its argument on retention and supervision, contending that had the guards been properly or adequately \u201csupervised,\u201d their thefts could have been prevented. This amounts to no more than speculation that because defendant failed to adequately guard the guards, it was negligent. We see no showing here that defendant should have reasonably foreseen that more supervision was required to prevent these deliberate criminal acts which were the cause of plaintiffs loss. This argument must be rejected.\nNegligent Breach of Contract\nFor the reasons we have stated with respect to plaintiff\u2019s other negligence based claims, plaintiff\u2019s claim for negligent breach of contract was properly dismissed. Plaintiff was unable to show any wrongful act or omission in support of this claim for which defendant may be held liable.\nBreach of Contract\nIn its last assignment of error, plaintiff contends that its evidence of a breach of contract was legally sufficient to withstand defendant\u2019s motion for a directed verdict. We disagree.\nIn its contract with plaintiff, defendant agreed to furnish security personnel for plaintiff\u2019s facility, but the contract contained the following limiting language.\nLimits of Liability\nClient acknowledges that Burns is not an insurer. Burns makes no warranty, express or otherwise, that the services furnished shall avert or prevent occurrences or consequences therefrom. . . . Client agrees that Burns shall be liable only for personal injury or property damage resulting directly from the sole negligence or the proportionate share of any concurrent negligence by Burns or its officers, agents or employees acting within the scope of their employment, and within the performance of services rendered hereunder.\nUnder this explicit language, defendant could not be held answerable for the deliberate criminal conduct of its employees, and this argument is therefore rejected.\nDefendant\u2019s Cross Appeal\nIn its purported cross appeal defendant attempts to challenge the trial court\u2019s admission of an insurance certificate contained in plaintiff\u2019s exhibit #1. We need not reach this question.\nNo error.\nChief Judge HEDRICK and Judge ARNOLD concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Smith Helms Mulliss & Moore, by James A. Medford and Deborah L. Hayes, for plaintiff-appellant.", "Petree Stockton & Robinson, by Daniel R. Taylor, Jr. and Donald M. Nielsen, for defendant-appellee." ], "corrections": "", "head_matter": "B. B. WALKER COMPANY, Plaintiff v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant\nNo. 9119SC1146\n(Filed 5 January 1993)\n1. Labor and Employment \u00a7 230 (NCI4th)\u2014 thefts by security guards \u2014respondeat superior inapplicable\nPlaintiff\u2019s evidence was not sufficient to go to the jury on plaintiff\u2019s claim for conversion under the doctrine of respondeat superior where security guards supplied by defendant security firm to plaintiff manufacturer stole significant amounts of plaintiff\u2019s property which they had been assigned to protect since the acts of theft committed by the guards were not authorized or ratified by defendant, and the guards were not acting within the scope of their employment and in furtherance of defendant\u2019s business when the criminal acts occurred.\nAm Jur 2d, Master and Servant \u00a7\u00a7 417, 424, 426-427, 434, 437, 445.\nActions of security service company\u2019s employee as rendering company liable under contract to protect persons or property. 83 ALR4th 1150.\n2. Labor and Employment \u00a7 189 (NCI4th)\u2014 thefts by security guards \u2014insufficient evidence of negligent hiring or retention\nPlaintiff manufacturer\u2019s evidence was insufficient for the jury on its claim against defendant security firm for negligent hiring, supervision and retention of two security guards who stole from plaintiff property which they had been assigned to protect where plaintiff failed to show that there was anything in the background of either guard which should have put defendant on notice that such guard was incompetent or otherwise unfit for the job, and there was no showing that defendant should have reasonably foreseen that more supervision was required to prevent deliberate criminal acts by its employees.\nAm Jur 2d, Master and Servant \u00a7\u00a7 422, 458-459.\nSecurity guard company\u2019s liability for negligent hiring, supervision, retention, or assignment of guard. 44 ALR4th 620.\n3. Negligence \u00a7 2 (NCI3d)\u2014 thefts by security guards \u2014 negligent breach of contract \u2014insufficient evidence\nPlaintiff\u2019s evidence was insufficient for the jury on its claim for negligent breach of contract where it tended to show that plaintiff hired defendant security firm to provide security for its facility and the security guards supplied by defendant stole property from plaintiff, but plaintiff was unable to show any wrongful act or omission for which defendant may be held liable.\nAm Jur 2d, Contracts \u00a7 732.\n4. Contracts \u00a7 41 (NCI4th)\u2014 thefts by security guards \u2014contract limiting liability to negligence\nDefendant security firm which agreed to furnish security services for plaintiff\u2019s facility could not be held liable under a breach of contract theory for the theft of plaintiff\u2019s property by security guards supplied by defendant where the parties\u2019 contract provides, \u201cClient agrees that [defendant] shall be liable only for personal injury or property damage resulting directly from the sole negligence or the proportionate share of any concurrent negligence by [defendant] or its officers, agents or employees acting within the scope of their employment, and within the performance of services rendered hereunder,\u201d since this language protects defendant from liability for the deliberate criminal conduct of its employees.\nAm Jur 2d, Master and Servant \u00a7 404.\nAppeal by plaintiff from judgment entered 23 May 1991 in Special Civil Session of Randolph County Superior Court by Judge Russell G. Walker, Jr. Heard in the Court of Appeals 21 October 1992.\nThis is a civil action arising out of a contractual relationship in which defendant agreed to supply security guard service to plaintiff. Subsequent to their assignment at plaintiff\u2019s manufacturing facility, the security guards supplied by defendant stole significant amounts of plaintiffs property, which the guards had been assigned to protect.\nPlaintiff brought this action seeking to recover damages resulting from defendant\u2019s alleged negligence in hiring, retaining, and supplying of security guards and alleged breach of contract. A trial ensued, and on 23'May 1991, Judge Walker allowed defendant\u2019s motion for a directed verdict against plaintiff on all of its claims and entered judgment dismissing plaintiff\u2019s action. On 18 June 1991, plaintiff gave notice of appeal.\nSmith Helms Mulliss & Moore, by James A. Medford and Deborah L. Hayes, for plaintiff-appellant.\nPetree Stockton & Robinson, by Daniel R. Taylor, Jr. and Donald M. Nielsen, for defendant-appellee." }, "file_name": "0562-01", "first_page_order": 590, "last_page_order": 596 }