The opinion of the court was delivered by: James H. Jarvis United States District Judge
This diversity action was removed to this court from the Circuit Court for Roane County, Tennessee. Plaintiffs Ann Ruth Boyl and Robert Boyl claim that they were injured by the conduct of defendant's employee, Charles Rose, on February23, 2004 and March 15, 2004. Currently pending are defendant's motions for summary judgment [Court Files #14, #73]. For the reasons stated in this opinion, the motions will be granted in part and denied in part.
The following factual allegations are considered in the light most favorable to the plaintiffs.
Defendant Merchants Distributors, Inc. is a wholesale grocery distributor headquartered in Hickory, North Carolina. From February 23, 2004 through March 15, 2004, defendant delivered goods to Russell's Food Town grocery store. Plaintiff Anna Ruth Boyl was an employee of the Russell's Food Town store located on Gateway, Ave., Rockwood, Tennessee during that time.
On February 23, 2004, Charles Rose, who was employed by defendant as a delivery driver, made a scheduled delivery at Russell's Food Town. Plaintiff Anna Ruth Boyl alleges that, during the delivery, Mr. Rose approached her in the break room and laid his head on her shoulder. This contact made her very upset and she immediately told her supervisor, Sherry Renee Gilmore, about the incident. Mrs. Gilmore then contacted Eric Harris, Vice President of Operations for Russell's. Based on plaintiff Anna Boyl's complaints about Mr. Rose, Mr. Harris telephoned defendant and reported the incident to Mr. Dick Millotte, defendant's sales representative to Russell's Food Town.
On March 15, 2004, a second incident occurred, wherein plaintiff Anna Boyl and Mrs. Gilmore encountered Mr. Rose in the Food Town break room. This time, plaintiff alleges that Mr. Rose unbuttoned and dropped his pants to his knees. Moving his genitalia and underpants to one side, he spread his leg to show the two women a bruise in his groin and inner thigh area, which he said had resulted from a recent medical procedure. Mrs. Gilmore has stated that she saw part of Mr. Rose's testicle. Boyl and Gilmore immediately contacted Mr. Harris and Mr. Russell, the store's owner. Mr. Russell and Mr. Harris both contacted Merchants Distributors, Inc. to complain about the incident.
Plaintiffs have presented the deposition of David Burdecki, defendant's director of Loss Prevention and Safety. Mr. Burdecki stated that on December 16, 1999, Mr. Rose was accused of making suggestive remarks to another customer on several occasions, but that the matter was not investigated further by the defendant's employees.
Based on the alleged conduct of Mr. Rose, plaintiff Anna Ruth Boyl has brought this action under a theory of vicarious liability against defendant for assault and battery, as well as intentional infliction of emotional distress. In later amendments, plaintiff also alleges theories of negligent supervision and negligent training.*fn1
II. Summary Judgment Standard
A motion for summary judgment shall be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986). A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
The court will view all facts presented and make all possible inferences in the light most favorable to the non-moving part. See, e.g., Hunter v. Bryant, 502 U.S. 224, 233 (1991); U.S. v. Diebold, Inc.,369 U.S. 654, 655 (1962). However, a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Liberty Lobby, Inc. at 252.
The standard for granting summary judgment mirrors the standard for directed verdict under Federal Rule of Civil Procedure 50(a). See id. at 250. That standard is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, ...