Tuesday, August 6, 2013
C.A. Says Employer Not Liable to Man Injured by Employee Who Jumps From Second Story Window, Lands on Him
By a MetNews Staff Writer
A strip club owner was not liable to a man landed upon in an alley by an apparent employee of the theater who jumped from a second story window, the Court of Appeal held yesterday.
The jumper was allegedly an employee at San Francisco’s Heaven Mini Theater, an adult entertainment establishment where lap dancing—and purportedly prostitution—took place, and which has since been closed. Police came there to investigate reports that the doorman had showered patrons with pepper spray.
The manager represented to police that he was the only male present, but they then spotted another male, later identified as Richard Lund. Lund fled, jumping from a window, and onto Bruce Cearlock, injuring him.
Cearlock sued the owner of the business, Peter Lambertson and his company,1054 Kearny, LLC.
Lambertson denied that Lund was an employee at that time, though admitting that he was later hired as doorman, but fired when it was ascertained that it was he who had landed on Cearlock.
The Court of Appeal held that the trial judge correctly granted a judgment of nonsuit following the plaintiff’s opening statement in the case.
Justice Henry E. Needham Jr. of the First District’s Div. Five said in an unpublished decision:
“When an employee injures a bystander while fleeing the police, is the employer liable for those injuries under the doctrine of respondeat superior? The answer in this case is no, because assuming an employment relationship can be established, the flight from the police was not an activity within the course and scope of that employment.”
“The parties in this case agree that plaintiff was injured when Lund jumped out the second story window of the Theater while trying to evade the police. Assuming the facts recited in plaintiff’s opening statement were sufficient to support an inference that Lund was employed by the Theater as its doorman, his flight was not an outgrowth of that employment and was not an activity broadly incidental to the Theater’s operations….
“Plaintiff argues that Lund’s flight fell within the scope of his employment because the police were investigating an altercation that involved his duties as a doorman. While the incident leading to the investigation might well have been one for which respondeat superior liability could have been imposed (assuming an employment relationship could be established), Lund’s flight from the police was an activity that cannot be fairly characterized as an outgrowth of, or incidental to, his employment (if any) at the Theater.”
Cearlock also argued that the theater’s manager had assisted Lund in escaping and that such was ultra-hazardous activity, warranting imposition of strict liability on the employer.
Disagreeing, Needham said:
“Assisting another in evading the police is an activity that can take many forms, many of which will pose no general risk to the public at all, and all of which can be adequately handled, for purposes of liability, under a negligence rubric.”
The Heaven Mini Theater, which featured red interior walls and scantily clad dancers, was shut down in 2009 as a “public nuisance.” The business had been cited for prostitution and numerous code violations.
“Naming a business ‘Heaven’ doesn’t place it beyond earthly laws and regulations, but that appears to be exactly what the operators of this illicit enterprise think,” City Attorney Dennis Herrera remarked in 2009.
Lambertson alleged that police had targeted his business because he denied their bids for free services.
Copyright 2013, Metropolitan News Company