712 F. Supp 79 (W.D. Va. 1989)





The plaintiff brought suit against the defendants for $1,000,000 in compensatory damages and $1,000,000 in punitive damages for injuries to his face and jaw arising out of a fight with defendants Champ and Hicks, minor league baseball players employed by the Baltimore Orioles. Specifically, Simmons alleges that he was the victim of an assault by Champ and Hicks which ended with Hicks breaking Simmons' jaw with a baseball bat. Defendant Baltimore Orioles, Inc., has moved to dismiss the charges, and defendant Bluestone Security Agency has filed a motion for summary judgment. No motions are pending on behalf of Champ and Hicks individually.


Certain facts are not in dispute. Simmons, along with a friend, attended :he Fourth of July, 1988 game

between the Martinsville Phillies and the Bluefield Orioles, a Baltimore farm team, at Bluefield, Virginia. Bluefield was not having a good year, and whether for this or some other reason  Simmons moved down to the third baseline along about the eighth inning, and started to heckle the Oriole players sitting in the bullpen. Champ stated in his deposition that Simmons was accusing the ballplayers of stealing the local  women, and that he (Simmons) would show the Orioles what West Virginia manhood was like by blowing the players' heads off. Whatever was precisely said, the pitching coach then asked Simmons to leave.


After the game (Bluefield lost, 9-8, stranding three runners in the bottom of the ninth), Champ encountered

Simmons in the parking lot. Simmons, in his complaint, offers no details of what ensued other than that he was punched and kicked by Champ and then hit in the jaw by a baseball bat wielded by Hicks, causing his jaw to be broken in two places. Champ's version was that Simmons saw him carrying a bat, made a gesture as if he were shooting Champ with his finger, and said "Oh, so you need a bat, huh?" Champ said "No, 1 don't," and threw his bat down. Simmons gestured toward his car and said, "Let's go over to my car, and I'll blow your head off." Another player tried to intervene, and Champ said, "Just get out of here." Simmons then advanced threateningly upon him, and Champ hit Simmons in the face. Simmons was unfazed, and Champ kicked him in the chest, causing Simmons to stagger back. According to Champ he then smiled and said "I'm drunk. 1 didn't feel that." Champ turned to walk away, and at that point defendant Hicks hit Simmons. Simmons says Hicks hit him with a bat, but Hicks says that he used only his fist. Hicks had not been near any of the heckling and says he intervened because he was afraid Simmons was about to pull a gun on Champ.


For the purposes of the Orioles' motion to dismiss, of course, the court accepts the plaintiffs version of the events as true. The narrow legal question is whether the Orioles breached any legal duty to Simmons.


The doctrine of respondeat superior applies only when the plaintiff proves that 1) at the time of the commission of the tort the servant was about his master's business, and 2) the servant was acting within the scope of his employment. Simmons can prove neither criterion. At the time of the assault the game was over, Champ and Hicks had left the locker room, and the altercation took place outside the confines of the ballpark. Champ and Hicks were not about any business for the Orioles, and it would be fatuous to suggest that the fight was within the scope of their employment. Therefore, no recovery can be based upon the grounds of respondeat superior.


The plaintiff contends, however, that Virginia has recognized the tort of "negligent hiring." _7. v. Victory Tabernacle Baptist Church, 372 S.E.2d 391 (1988). In this case, the Virginia Supreme Court held that the mother of a ten-year-old girl who was raped by a handyman had stated a claim against the church which had employed him. Unlike respondeat superior, liability may be imposed even if the servant is not acting within the  scope of his employment. The test is whether the employer has negligently placed "an unfit person in an employment situation involving an unreasonable risk of harm to others. "


The plaintiff in the instant case, by contrast, makes no invidious allegations of any kind against Hicks and Champ. No previous tendency towards violence was alleged or even suggested. (The orioles’ motion to dismiss is granted.)