Tornes v. Dollar General Corporation et al

Filing 25

ORDER granting 16 Defendants' Motion for Summary Judgment. Signed by District Judge Carlton W. Reeves on 5/26/2020. (AD)

Case 3:19-cv-00272-CWR-FKB Document 25 Filed 05/26/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
OPHELIA TORNES

PLAINTIFF

V.

CAUSE NO. 3:19-CV-272-CWR-FKB

DOLLAR GENERAL CORPORATION, et al.

DEFENDANTS

ORDER
Before the Court is the defendants’ motion for summary judgment. For the reasons
discussed below, the motion is granted.
I.

Factual and Procedural History
On December 30, 2016, Plaintiff Ophelia Tornes visited a Dollar General store in Jackson,

Mississippi. Employee Ashley Helom was working at the cash register. Helom was using her
cellphone while on the job. Once Tornes came to Helom’s register, an argument between the two
ensued. Video surveillance shows that Helom picked up a white object, slammed it into Tornes’
face, pulled Tornes’ hair, repeatedly punched Tornes, and continued yelling at Tornes even after
the fight ended.
On September 25, 2018, Tornes filed this suit in the County Court of Hinds County,
Mississippi, against Helom and Dollar General’s parent company, Dolgencorp. Dolgencorp then
removed this case to federal court. Helom was never served with process, so the case proceeded
against Dolgencorp only.
Dollar General policies and procedures prohibit yelling, fighting with customers, throwing
objects, and aggressive physical contact. In fact, they require employees to treat customers with
dignity, respect and courtesy at all times. They also prohibit an employee from using a cellphone

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while working. Both parties acknowledge that Helom failed to abide by these policies. Compare
Docket No. 17 at 1 with Docket No. 22 at 2.
Tornes nevertheless argues that Dolgencorp is vicariously liable for Helom’s actions. Her
complaint also alleges that Dolgencorp was itself negligent by:
a.
b.
c.
d.
e.
f.
g.

Failing to properly train employees;
Hiring employees with violent tendencies which create an unreasonable risk
of harm to customers;
Failing to implement proper policies and procedures for the safety of
business invitees such as Plaintiff;
Allowing Defendant’s agents or employees to verbally and physically
assault business invitees such as Plaintiff;
Failure to have security available to protect business invitees from being
physically assaulted while on the premises such as the Plaintiff;
Failing to maintain the Premises in a reasonably safe condition;
Defendant was negligent in failing to control, supervise, and maintain safety
for Plaintiff as a business invitee of Defendant’s Premises.

Docket 1-1 at 3.
II.

Legal Standards
A.

Federal Procedural Law

Summary judgment is appropriate when the movant can show that there is “no genuine
dispute as to any material fact,” and consequently, the movant is entitled to a grant of judgment as
a matter of law. Fed. R. Civ. P. 56(a). If a nonmovant wishes to avoid summary judgment, they
must identify admissible evidence in the record indicating a disputed material fact. Id. at 56(c)(1).
“Once a summary judgment motion is made and properly supported, the nonmovant must go
beyond the pleadings and designate specific facts in the record showing that there is a genuine
issue for trial. Neither ‘conclusory allegations’ nor ‘unsubstantiated assertions’ will satisfy the
nonmovant’s burden.” Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (quotation
marks and citations omitted).

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The Court views the evidence and draws reasonable inferences in the light most favorable
to the nonmovant. Maddox v. Townsend and Sons, Inc., 639 F.3d 214, 216 (5th Cir. 2011). But the
Court will not, “in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” McCallum Highlands, Ltd. v. Wash. Capital Dus, Inc., 66 F.3d 89, 92
(5th Cir. 1995), as revised on denial of reh’g, 70 F.3d 26 (5th Cir. 1995).
B.

State Substantive Law

Because this case is proceeding in diversity, the applicable substantive law is that of the
forum state, Mississippi. Capital City Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir. 2011). State
law is determined by looking to the decisions of the state’s highest court. St. Paul Fire & Marine
Ins. Co. v. Convalescent Servs., Inc., 193 F.3d 340, 342 (5th Cir. 1999).
“If no such holdings exist, [the Court] predicts how that tribunal would rule.” Centennial
Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 382 (5th Cir. 1998). The prediction is based
on:
(1) decisions of the Mississippi Supreme Court in analogous cases, (2) the
rationales and analyses underlying Mississippi Supreme Court decisions on related
issues, (3) dicta by the Mississippi Supreme Court, (4) lower state court decisions,
(5) the general rule on the question, (6) the rulings of courts of other states to which
Mississippi courts look when formulating substantive law and (7) other available
sources, such as treatises and legal commentaries.
Id.
“Absent evidence to the contrary, [the federal court] presumes that the Mississippi courts
would adopt the prevailing rule if called upon to do so.” Id. The Court is “emphatically not
permitted to do merely what [it] think[s] best; [the court] must do that which [it] think[s] the
Mississippi Supreme Court would deem best.” Id.

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III.

Discussion
A.

Vicarious Liability

“An employer is liable for the torts of his employee only when they are committed within
the scope of employment.” Adams v. Cinemark USA, Inc., 831 So. 2d 1156, 1159 (Miss. 2002) (en
banc) (citation omitted), abrogated on other grounds by Miss. R. Civ. P. 78. For an act to fall within
the scope of employment, it “must have been committed in the course of and as a means to
accomplishing the purposes of the employment and therefore in furtherance of the master’s
business.” Id. (citations omitted). “[A] master will not be held liable if the employee had
abandoned his employment and was about some purpose of his own not incidental to the
employment.” Id. (quotation marks and citations omitted).
A tortious act incidental to authorized conduct is within the course and scope of
employment. Id. (citation omitted). “That an employee’s acts are unauthorized does not necessarily
place them outside the scope of employment if they are of the same general nature as the conduct
authorized or incidental to that conduct.” Id. (citation omitted).
In Adams, the Mississippi Supreme Court said it was “obvious that [a movie theater
employee’s assault on] Adams was not authorized or in furtherance of Cinemark’s business.” Id.
The same applies here. At the time of the incident, Helom was a cashier at Dollar General. Her
responsibilities included selling goods to customers and handling the exchange of money.
Throwing a stapler at a customer does not have any relation to the purpose of Helom’s employment
as a cashier for Dollar General. Therefore, this Court must determine whether Helom’s conduct
was “incidental” to her employment.
The Mississippi Supreme Court has found intentional tortious conduct incidental to the
course of employment in several cases. In Horton v. Jones, for example, the court imputed a cab

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driver’s liability to the cab company, when the employee drove off hastily to get another fare—
making money for his employer—even though the cab still contained the plaintiff’s possessions.
44 So. 2d 397 (Miss. 1950). In Interstate Co. v. McDaniel, the court imputed a snack vendor’s
liability to the snack company when the vendor assaulted a man suspected of stealing snacks
because the vendor was “required to protect [the inventory] within reasonable bounds from
depredations.” 173 So. 165, 166 (Miss. 1937). And in Alden Mills v. Pendergraft, the court imputed
liability to the employer when an employee foreman assaulted a laborer in order to prevent laborers
from demanding higher wages – an act in furtherance of the employer’s goal of realizing profit.
115 So. 713 (Miss. 1928).
This case is different. Helom’s assault of Tornes had no relation to increasing Dolgencorp’s
profit, protecting the store’s products or premises, or furthering any business interest. Without
evidence pointing to the contrary, shouting at a customer and physical violence typically fall
outside the scope of selling products and handling money. Thus, Helom’s actions were not
incidental to the course of employment, and Dolgencorp is not vicariously liable for them.
B.

Negligent Hiring, Training, and Supervision1

In Mississippi, an employer can be held independently liable for an employee’s harm to a
third party under claims of negligent hiring or retention, negligent training, negligent supervision,
and negligent entrustment. For each claim, the plaintiff must prove that the defendant had actual
or constructive knowledge of the employee’s unfitness or otherwise dangerous tendencies. See

1

Because Dolgencorp denies that Helom was acting within the course and scope of his employment, we must address
these claims. Otherwise, where an employer concedes liability under vicarious liability and respondeat superior, the
Mississippi Court of Appeals and our district courts have concluded that a defendant is entitled to dismissal of, or
summary judgment on, negligence claims based on negligent entrustment, negligent hiring, failure to train, negligent
supervision and negligent retention. See, e.g., Carothers v. City of Water Valley, 242 So. 3d 138, 144–45 (Miss. App.
2017), cert. denied, 246 So. 3d 67 (Miss. 2018) (citing Davis v. ROCOR Int’l, 3:00-CV-864, 2001 U.S. Dist. LEXIS
26216, at *17–25 (S.D. Miss. Dec. 19, 2001)); Gaddis v. Hegler, No. 3:10-CV-249-CWR-LRA, 2011 WL 2111801,
at *3 (S.D. Miss. May 26, 2011); Welch v, Loftus, 776 F. Supp. 2d 222 (S.D. Miss. 2011).

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Doe ex rel. Brown v. Pontotoc Cty. Sch. Dist., 957 So. 2d 410, 417 (Miss. Ct. App. 2007)
(discussing elements of negligent hiring or retention); Holmes v. Campbell Properties, Inc., 47 So.
3d 721, 729 (Miss. Ct. App. 2010) (negligent training or supervision); Kitchens v. Dirtworks, Inc.,
50 So. 3d 388, 392 (Miss. Ct. App. 2010) (negligent entrustment).
“‘Actual notice’ is defined as notice expressly and actually given while
‘constructive notice’ is defined as information or knowledge of a fact imputed by
law to a person (although he may not actually have it), because he could have
discovered the fact by proper diligence, and his situation was such as to cast upon
him the duty of inquiring into it.”
Parmenter v. J & B Enterprises, Inc., 99 So. 3d 207, 217 (Miss. Ct. App. 2012) (citation omitted).
As a condition of employment, official Dollar General policies require a criminal
background check for all potential employees. The summary judgment record shows that Dollar
General conducted a criminal background check of Helom, and it did not reveal an indication of a
propensity for violence or any prior history of violence. A subsequent background search of
statewide criminal records, conducted after this litigation commenced, confirmed that Helom did
not have any prior criminal history. Dollar General has no records of customer complaints made
against Helom prior to her fight with Tornes. As such, there is no evidence that Dolgencorp had
actual or constructive knowledge that Helom would get into a shouting match and violent
altercation with a customer. There is no genuine dispute of any material fact. Tornes’ claims of
negligent hiring, training, and supervision therefore fail as a matter of law.
C.

Premises Liability

An invitee is a visitor “who goes upon the premises of another in answer to the express or
implied invitation of the owner or occupant for their mutual advantage.” Olier v. Bailey, 164 So.
3d 982, 986 (Miss. 2015) (citation omitted). A premises owner “owes an invitee a duty to exercise
reasonable care to protect an invitee from reasonably foreseeable injury at the hands of another.”

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Magnusen v. Pine Belt Inv. Corp., 963 So. 2d 1279, 1282 (Miss. Ct. App. 2007) (citing W.B. Crain
v. Cleveland Lodge 1532, Order of the Moose, Inc., 641 So. 2d 1186, 1189 (Miss. 1994)).
“An act may be considered reasonably foreseeable if the premises owner had cause to
anticipate the third party act.” Id. (citing W.B. Crain, 641 So. 2d at 1189). Cause to anticipate a
third party act can arise from “(1) actual or constructive knowledge of the third party’s violent
nature, or (2) actual or constructive knowledge that an atmosphere of violence existed on the
premises.” Id. (citation omitted).
Because Tornes was a customer at Dollar General, she is classified as a business invitee.
Dollar General owes invitees reasonable care to protect against reasonably foreseeable injury. As
discussed above, Dollar General had neither actual nor constructive knowledge of potential
violence from Helom, nor has Tornes produced any evidence that an an atmosphere of violence
existed on the premises prior to this incident.2 Therefore, Tornes’ on-site injuries were not
reasonably foreseeable.
IV.

Conclusion
The motion for summary judgment is granted. A separate final judgment shall issue this

day.
SO ORDERED, this the 26th day of May, 2020.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

Tornes argues that the “shouting match should have provided management with actual or constructive knowledge
that an atmosphere of violence existed on the premises.” Docket No. 22 at 7. This argument is unpersuasive because
the shouting, arguing, and physical altercation between Helom and Tornes were all a part of the same incident.
2

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