Employer liability when a worker assaults a customer

Establishment allegedly failed to maintain adequate procedures for removing patrons and using force

Employer liability when a worker assaults a customer

A recent case arose when a customer sued a restaurant for personal injuries allegedly caused by one of its security guards. The guard was an employee of the restaurant, which controlled the details of his work, a Texas court said.

Late one night in August 2017, the defendant security guard and one other armed guard were working at a restaurant. They were on duty partly because many drunk patrons arrived late at night after visiting nightclubs and bars during weekends.

A particular customer and her two adult daughters were dining at the restaurant. They ordered tortillas that came to their table after they were done eating. The customer asked the manager, who was also acting as the cashier, to remove the $2.50 charge for the tortillas from their bill.

The customer alleged that the following events happened. The manager let the customer discuss the issue with a waitress. The customer stayed well-mannered as she repeatedly asked the manager about the length of the delay. The manager became hostile, argued with the customer, and signaled the guard to remove her from the restaurant.

According to the customer, the guard grabbed her and dragged her out of the restaurant. He placed her in a chokehold, slammed her body down on the concrete, and punched her. He called his fellow guard, who handcuffed the customer and pepper-sprayed her and her daughters.

Read more: Foreman sues hirer and contractor after assault at California construction site

The customer allegedly blacked out and drifted in and out of consciousness. She experienced pain in her head, back, pelvis, shoulder, and arm. An ambulance took her to the hospital.

The guard disagreed with the customer’s version of the night’s events. He denied slamming her down and putting his knee against her chest. He also alleged that he only used the necessary force and that she did not hit her head hard on the concrete.

The customer sued the guard; El Paisano Northwest Highway Inc., doing business as Taqueria El Paisano; and 250LB LLC, an independent security company doing business as Delta Security Solutions. She later voluntarily dismissed her claims against Delta.

El Paisano employed the guard, who was not registered with any security company as required by the Private Security Act, the customer argued. El Paisano was vicariously liable for the guards’ actions, was grossly negligent, and was negligent in its hiring and training of the guards and in its failure to implement and to maintain adequate procedures for expelling patrons and for using force, the customer added.

In response, El Paisano made the following arguments:

  • It was not vicariously liable for the guard’s assault
  • It was not responsible for the guard’s acts because he was not its employee and was instead an independent contractor since it did not retain control over his work
  • Even if the guard was its employee, his conduct went beyond the course and scope of his employment
  • Delta’s negligence in hiring, training, and supervising the guard proximately caused the customer’s injuries

The trial court disagreed. The guard, who was El Paisano’s employee, assaulted the customer by intentionally, knowingly, or recklessly causing her bodily injury, the trial court said. El Paisano was vicariously liable for his actions because he was an employee acting in the course and scope of his employment, the trial court added.

Guard is restaurant employee

In the case of El Paisano Northwest Highway, Inc., a/b/a Taqueria El Paisano v. Elizabeth Martinez, the Texas Court of Appeals Fifth District at Dallas affirmed the monetary sanctions that the trial court imposed on El Paisano.

However, the appellate court reversed the rest of the trial court’s judgment because testimony from a medical expert was necessary to prove that the incident at the restaurant caused some of the customer’s injuries.

The appellate court made the following conclusions. First, the evidence sufficiently supported El Paisano’s vicarious liability for the guard’s actions. Second, the evidence adequately showed that the guard was not working for a security guard company and was instead an employee working directly for El Paisano without a license.

El Paisano controlled the details of the guard’s work, the appellate court said. The restaurant’s staff would tell security to handle misbehaving patrons and would have to give the guard an order before he could throw someone out of the restaurant, the appellate court explained.

Third, the appellate court found that the evidence demonstrated that the guard, who was hired partly to control the late-night drunk crowd, was acting in the course and scope of his employment during the incident.

Lastly, the appellate court said that it did not need to answer the question of whether El Paisano’s negligence in hiring, training, or supervising the guard proximately caused the incident.

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