Battery; Vicarious liability; Hamed v Wayne Cnty; Scope of employment; Cook v Michigan Cent RR; Foreseeability; Direct liability for negligent hiring, supervision, & retention; Brown v Brown; Intentional infliction of emotional distress (IIED); Graham v Ford; Extreme & outrageous conduct; Lewis v LeGrow

The court held that the trial court did not err by denying defendant-KKC’s motion for summary disposition of plaintiff’s claims of vicarious liability, direct liability, and IIED. Plaintiff sued KKC and its bouncer (Matthew) for a battery Matthew committed against him at KKC’s saloon. The trial court granted in part defendants’ motion for summary disposition, but denied it as to assault, battery, negligent hiring, supervision, and retention, and IIED. On appeal, the court rejected KKC’s argument that the trial court erred as to plaintiff’s vicarious liability claim as “there was no question of fact that Matthew acted outside the scope of his employment when he attacked an already-ejected customer and it was unforeseeable [he] would mount such an attack against plaintiff.” It found plaintiff established a genuine issue of material fact on this issue, noting “Matthew attacked plaintiff from behind and repeatedly punched him in the head and kicked him as he tried to roll away, conduct indicative of an intent to cause serious injury. It remains a question for the jury whether the severity of the attack counsels that Matthew was acting outside the scope of his authority to use force to eject patrons.” As to foreseeability, it found that statements made by KKC employees about Matthew’s reputation created “a factual question whether KKC was aware [he] had a reputation for using more force than necessary to remove patrons.” The court also rejected KKC’s contention that the trial court erred by denying its motion as to plaintiff’s claims involving direct liability for negligent hiring, supervision, and retention. Evidence that he “received virtually zero training” and there was no background check “paired with Matthew’s alleged reputation for excessive force could support that a patron would eventually be injured fighting with [him] or by Matthew using unnecessary roughness or aggressiveness when removing a patron from the premises.” Finally, as to the plaintiff’s IIED claim, he “did not need to seek mental health care to establish a question of fact regarding severe emotional distress. [His] deposition established that he experienced stress and anxiety as a result of the attack that continued to have some impact on his daily life. He struggled with conflict in his daily life and experienced ongoing feelings of anxiety, stress, embarrassment, and shame stemming from the attack.” This evidence “demonstrated a genuine issue of material fact whether the attack caused plaintiff severe emotional distress.” Affirmed.