Can you sue the movie theater when its manager threatens you with a pellet gun?

This case is something out of a law school textbook: the perfect torts issue that provides no easy answer. The Appellate Division holds that a movie theater can be held liable where its manager threatened a patron with a pellet gun.

The case is Norwood v. Simon Property Group, issued on December 16. I was co-counsel to plaintiff in this appeal, which reinstates the lawsuit after State Supreme Court granted the theater's motion for summary judgment on employer liability.

In state tort law, the employer can be liable for its employee's improper acts. That's good for plaintiffs' lawyers, who need to sue someone with "deep pockets" who can pay out a liability judgment. There is little use in suing an employee who may have no assets. But there are complex rules guiding when the employer can be sued under respondeat superior.

In this case, plaintiff and his friends went to the movies on Long Island, where they got into a dispute with the theater manager, Adams. After everyone exchanged words, Adams went to his car and returned to the theater with a pellet gun, pointing it at plaintiff, who sues the theater for assault. Can a jury hold the theater liable for Adams' actions? Yes, says the Appellate Division, Second Department.

If the employee does something wrong in the scope of his employment, the employer is liable. But what does "scope of employment" mean? If the employee "was doing his master's work, no matter how irregularly, or with . . . disregard of instructions" or without authorization from management, the employer can still be sued. The employer cannot be sued, however, if the employee is acting solely for personal motives unrelated to the furtherance of the employer's business. While the company handbook says that managers cannot brandish a weapon on the job, it also says that disruptive customers may have to be escorted off the property in order to protect other customers. Since Adams was responsible for maintaining order at the theater and ensuring the safety of other customers, his display of the weapon may be the basis for plaintiff's lawsuit against the theater because a jury may find that Adams acted this way in the scope of his employment. In other words, while it is not required to do so, the jury could find that management could have foreseen Adams' menacing behavior, even if that behavior was frowned upon as a matter of company policy.