Opinion
No. 552, 1997.
Decided: November 19, 1998.
Superior CA 95C-02-091.
Affirmed.
Unpublished Opinion is below.
LINWOOD R. MILLER, Defendant Below, Appellant, v. LETICIA DOCKHAM and STEPHEN A. INGRAHM, Plaintiffs Below, Appellees. No. 552, 1997. In the Supreme Court of the State of Delaware. Submitted: August 25, 1998. Decided: November 19, 1998.
Before VEASEY, Chief Justice, WALSH and BERGER, Justices.
ORDER
This 19th day of November, upon consideration of the briefs of the parties, it appears to the Court that:
1) Linwood R. Miller appeals from an adverse jury verdict in a personal injury action brought by an employee at Miller's place of work. Miller argues that the trial court erred in three respects: i) it refused to rule that the claim was barred under the exclusivity provision of the Workers' Compensation Act; ii) it instructed the jury on the wrong standard for deciding whether Miller was acting within the course of his employment when the altercation took place; and iii) it withdrew one issue from the jury by holding that Miller's conduct constituted battery as a matter of law.
2) Leticia Dockham had been a waitress at Captain John's Restaurant in Dover, Delaware, for more than ten years at the time of the incident. Miller was the co-owner and manager of the restaurant. He supervised the waitresses, among other duties. On the morning in question, the restaurant was very busy. Miller had been doing office work upstairs, but he came downstairs periodically and commented several times that the breakfast buffet was not in good condition. When he checked on the buffet at noon, Miller became upset because it was half empty and the food that remained was not appetizing. The biscuits, for example, were hard and black.
3) Miller took one of the biscuits and held it up to the hostess's mouth, asking her whether she would eat it. According to Miller, the hostess pushed him away and laughed. Miller then went to Dockham with the hard biscuit and tried to put the biscuit in Dockham's mouth. The details of that encounter were sharply disputed. Miller testified that he put his arm around Dockham, put the biscuit up to her mouth, and said, "Would you eat that crap?" Dockham testified that Miller grabbed her left arm from behind, shoved the biscuit and his hand into her mouth, and pushed her backwards as he forced the biscuit into her mouth. Dockham dropped the dishes she was carrying and tried to tell Miller to stop. By the time Miller released Dockham, her lip and mouth were bleeding.
4) Dockham collected workers' compensation benefits for the injuries she sustained during the biscuit incident. She also filed a tort claim against Miller, alleging that Miller's conduct was wilful and motivated by personal animosity. Miller argues that Dockham's tort claim fails as a matter of law because the Workers' Compensation Act provides the exclusive remedy under the facts of this case. The Superior Court rejected this argument, holding that the question of whether Miller was acting in the course of his employment at the time of the injury is a question of fact for the jury. Dockham v. Miller, Del.Super., C.A. No. 95C-02-091-WTQ (May 21, 1997) (Letter Op.); Dockham v. Miller, Del.Super., C.A. No. 95C-02-091-WTQ (June 12, 1997) (Letter Op.). We affirm on the basis of the Superior Court's well-reasoned decisions.
5) Turning to the factual issue, Miller argues that all of the evidence supported his contention that he was motivated by business rather than personal concerns. Miller was upset about the condition of the buffet; he had confronted another employee with a hard biscuit just moments before the incident with Dockham; and he had no personal relationship with Dockham.
6) Although the facts Miller relies on may have been undisputed, there were other facts from which a jury could have concluded that Miller was motivated by personal animosity towards Dockham. Miller made derogatory comments about Dockham's Philippine heritage; he ridiculed her for speaking with an accent; and embarrassed her in front of customers. The jury also heard one possible explanation for Miller's hostility. About one year before this incident, Dockham mistakenly complimented Miller's wife on flowers that Miller received from someone other than his wife. We are satisfied that this evidence was sufficient to support a finding adverse to Miller. See: Gaster v. Coldiron, Del. Supr., 297 A.2d 384, 385 (1972).
7) Miller next argues that the trial court misstated the law in its jury instructions. The court told the jury that Miller could be held liable for Dockham's injuries only if Miller "was not acting within the course of his duties and employment at the time of the wrong. . . ." To determine whether Miller was acting within the course of employment, the court instructed the jury to consider several factors relating to the time, place and circumstances of the incident. The court then told the jury how to evaluate Miller's motivation:
[I]f you find the defendant's conduct was motivated by both personal and employment-related reasons, you must then determine whether the employment-related reasons were a substantial factor in defendant's conduct. A "substantial factor" means a factor that is an important and material part of the defendant's conduct. It does not have to be the most important or the primary factor, but it does have to be a significant motivating factor and not a mere incidental or superficial consideration.
* * *
If you find that employment-related reasons were a substantial factor in defendant's conduct, plaintiff may not recover against the defendant. Furthermore, the burden of proof here is on the plaintiff. The plaintiff must prove that the defendant was not acting within the course of his duties and employment at the time of the battery, that is, that employment-related reasons were not a substantial factor in defendant's conduct at the time of the battery.
Miller argues that the "substantial factor" test is the wrong standard. He says that the issue is whether there was a "causal link" between Dockham's employment and the incident during which she was injured. Miller contends that the "but for" test, used to decide proximate cause, is the correct legal standard.
8) In considering whether Miller acted within the course of employment, the jury had to decide which of two motivations predominated — the employer's business interests or his personal interest. See: Groves v. Marvel, Del. Supr., 213 A.2d 853, 856 (1965). To paraphrase the Groves court, the question was whether Miller would have grabbed Dockham and shoved a hard biscuit in her mouth if he had no personal animosity towards her. The trial court's "substantial factor" instruction conveyed that question in a slightly different form. It was not misleading and it did not misstate the law. McKenzie v. Blasetto, Del. Supr., 686 A.2d 160, 163 (1996).
9) Finally, Miller argues that the trial court erred in holding that Dockham established a battery as a matter of law. "[T]he tort of battery is the intentional, unpermitted contact upon the person of another which is harmful or offensive. . . . The intent necessary for battery is the intent to make contact with the person, not the intent to cause harm." Brzoska v. Olson, Del. Supr., 668 A.2d 1355, 1361 (1995). Miller admitted at trial that he went up to Dockham, grasped her arm and held her for three to four seconds before she screamed and he let her go. Those admissions establish that there was an offensive contact sufficient to constitute battery as a matter of law.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.