Lindsey Baldwin and a friend went to Riverside Chevrolet to visit Baldwin’s husband, who was the new car manager for Riverside. While the three were talking a sales manager for Riverside, Melvin Mitchell, who had a reputation for pulling pranks, surprised Baldwin by coming up behind her and kneeing her in the back of her knee.

This schoolyard prank turned out bad, however. Baldwin suffered tears to her interior cruciate ligament and medial meniscus. She had to undergo surgery to repair them.

Baldwin sued Riverside under a respondeat superior theory. Under a respondeat superior theory, in order for an employer to be responsible for the tort of an employee the tort must be committed in the course of the employment and within the scope of the employee’s authority. Baldwin claimed Mitchell was working for Riverside at the time he injured her; Mitchell had a reputation for pulling pranks and hitting people in the back of knees while he was at work; and it was for the jury to decide whether Mitchell deviated from his job duties to such an extent that he was not acting within the scope of his job duties.

Riverside argued, however, that Mitchell was not performing any part of his job duties when he kneed Baldwin and injured her, and therefore it was entitled to summary judgment. The trial court agreed, and dismissed Baldwin’s case against Riverside.

On appeal, Baldwin argued that whether Mitchell deviated from his job duties when he injured Baldwin was an issue for the jury, citing the Oklahoma Supreme Court’s decision last summer in Sheffer v. Carolina Forge. In Sheffer, two employees of Carolina Forge, a North Carolina company, were on a business trip to visit a customer in Joplin, Missouri. One evening they decided to drive in their rental car to visit a casino in Miami, Oklahoma. They did not take their customer with them; in fact, they had not been with any representatives of the customer since playing golf with them earlier that afternoon. Late at night they left the casino to head back to Joplin, when the employee who was driving allegedly caused a car wreck which resulted in injuries.

The Oklahoma Supreme Court held that whether the employee was within the course and scope of his employment when the accident occurred, even during this late night foray to the casino, was a question of fact for the jury. In so holding the Supreme Court found it important that Carolina Forge would reimburse the employees for their rental car expenses and alcoholic beverages purchased at the casino, regardless of whether a customer was present. Indeed, the Court noted that while there were “personal portions” to the business trip, the employer would have reimbursed the employees for the personal portions of the business trip.

Here, Mitchell was on the clock and so was getting paid by Riverside for the time he engaged in the horseplay. Moreover, Mitchell had a reputation for pulling pranks and hitting people in the back of knees while he was at work and getting paid by Riverside.

The Court of Civil Appeals, however, viewed Mitchell’s horseplay at work differently than the Carolina Forge employee’s after-hours trip to the casino. The Court noted that courts in Idaho and Kansas have addressed whether pranks or horseplay at work fall within the scope of the prankster’s employment, and hold that if the prank itself is part of the employee’s duties, even if ill advised, then it is within the scope of employment. However, if the prank is purely a personal act for personal motives or whims, then the employee is not serving the employer and the prank is not within the scope of employment. Because the Court found that Mitchell was not engaged in work assigned to him by Riverside at the time of the knee kick, and the knee kick that he performed was motivated by his personal gratification at performing pranks, then the knee kick was outside the scope of employment and Riverside was not liable.

While the Court of Civil Appeals’ reasoning is certainly supported by other case law, it is somewhat difficult to square with the Supreme Court’s recent decision in Sheffer v. Carolina Forge. Baldwin did not ask the Supreme Court to review the Court of Civil Appeals’ decision, so that decision is final.

However, to be on the safe side, if you have an employee who is known to engage in horseplay and pull pranks, you should warn that employee not to engage in such conduct while on company time even if such horseplay or pranks are not within the scope of the employee’s job duties.

By Jon E. Brightmire, jbrightmire@dsda.com