Where a motion for summary disposition was filed by the defendant employer of a security guard involved in a fatal shooting, a judge’s decision to deny that motion should be affirmed based on questions of fact regarding whether the security guard’s conduct was within the scope of his employment with the defendant and whether the harm was foreseeable.
“Defendant Jhohman, LLC (‘Lagarda’), doing business as Lagarda Security, appeals by leave granted the trial court’s denial of summary disposition regarding plaintiff’s claims of negligence and vicarious liability. The claims, and this case, arise from defendant Tony Lamont Gates shooting and killing plaintiff’s decedent, Gary Harris, while working as a security guard for Lagarda. Despite Lagarda hiring Gates as an unarmed security guard, Gates began carrying a pistol during his shifts. During a midnight shift, Gates attempted to remove Harris from a property guarded by Lagarda, and after minimal interaction, shot and killed him. Plaintiff presented evidence that in the weeks leading up to the shooting Gates told two supervisors he was carrying a gun, a violation of Lagarda’s policies and an explicit basis for termination. Plaintiff also presented evidence that these supervisors did nothing or possibly encouraged him to carry it. The trial court granted Lagarda’s motion for summary disposition with respect to plaintiff’s claim for negligent infliction of emotional distress, but denied summary disposition with respect to plaintiff’s claims for negligence and vicarious liability. It found questions of fact regarding whether Gates’s conduct was within the scope of his employment with Lagarda and whether the harm was foreseeable.
“This case is about a security guard’s use of force that killed someone. It is also about an employer’s duty when an employee wrongfully carries a gun at work. A jury must decide whether he was acting within the scope of his employment and whether his employer was negligent in training, supervising, or retaining him. The jury must also determine whether Gates’s supervisors knew he was carrying a gun. For these reasons, we affirm.
“First, the trial court correctly concluded that there is a jury question related to whether Lagarda is vicariously liable for Gates’s conduct because his conduct fell within the scope of his employment as a security guard with Lagarda.
“The trial court did not err when it resolved the motion by concluding questions existed as to whether the conduct was within the scope of employment. This conclusion was sufficient and did not require the trial court to address an alternative basis of vicarious liability: if the conduct were outside of the scope of employment, would Lagarda nonetheless be liable because it was foreseeable. The trial court reasonably resolved the motion on the question of the scope of Gates’s employment. Simply put, if there is a question of fact regarding whether conduct was within the scope of Gates’s employment, then the court need not reach the issue of foreseeability, which is an exception to the general rule. But had the trial court reached the question of foreseeability, the result should have been the same.
“The reality is there is a question as to whether Lagarda knew that Gates had carried a firearm in violation of its rules and DHC’s prohibitions and whether Lagarda knew of his propensity to do so. An employer who knows one of its employees carries a firearm unlawfully or in violation of company policy is potentially liable for the harms that result from the wrongful firearm possession: that the employee might use the gun he is already wrongfully carrying. Had the trial court reached this question, the result would have been the same: denial. We find no error with the trial court’s analysis of this issue.
“Lagarda also argues that the trial court erred by denying its motion for summary disposition with respect to plaintiff’s claims involving Lagarda’s direct liability for negligent hiring, training, retention, and supervision. In substance, Lagarda argues that it did not owe Harris a duty because it was not reasonably foreseeable that Gates would shoot or kill him. We again disagree. This issue conceptually overlaps with the foreseeability analysis for vicarious liability. ... And for similar reasons, we conclude that there is a genuine fact question of whether Lagarda knew Gates was wrongfully carrying a firearm leading up to the shooting.”
Harris v. Gates; MiLW 08-108057, 17 pages; Michigan Court of Appeals unpublished per curiam; Gadola, J., Borrello, J., N. P. Hood, J.; on appeal from Wayne Circuit Court; Anthony T. Pieti for appellant; Christopher P. Desmond for appellee.
Click here to read the full text of the opinion
Copyright © 2024 BridgeTower Media. All Rights Reserved.
Most Popular
Comments / 0