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Elmi v. SSA Marine, Inc.

United States District Court, W.D. Washington, Seattle

May 18, 2015

KAISER SAID ELMI, et al., Plaintiffs,
SSA MARINE, INC., et al., Defendants.


JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on the motion for summary judgment filed by Defendants SSA Marine, Inc. and SSA Terminals, LLC ("SSA") and its employees John Bell, Tom Hsue, William Kendall, and Brandon Brent (collectively "SSA Defendants") (Dkt. No. 40). Having thoroughly considered the parties' briefing and the relevant record, the Court hereby GRANTS the motion in part and DENIES the motion in part for the reasons discussed below.


Plaintiffs Kaiser Said Elmi, Tesfarghabar Berhane, and Mohamed Muhiddin are all short-haul truck drivers of East African dissent who work at the Port of Seattle. Plaintiffs are self-employed and contract with various trucking companies that dispatch them. (Dkt. No. 73 at 6.) Plaintiffs and the trucking companies they contract with have no contractual relationship with SSA. (Dkt. No. 45 at 7.) As short-haul truck drivers, Plaintiffs' jobs are to pick-up and haul shipping containers "between terminals at the Port of Seattle and the rail yards" as well as other nearby locations. (Dkt. No. 65 at 2.)

SSA operates a stevedoring business and leases land from the Port of Seattle for its operation. SSA's business involves the loading and unloading of vessels by longshore workers. (Dkt. No. 40 at 2.) SSA Defendants Bell, Hsue, Kendall, and Brent are or were foremen or superintendents employed by SSA.

The events giving rise to this lawsuit primarily occurred at Terminal 30, which SSA operates. Short-haul truck drivers receive their loads from various trucking companies and wait in line at Terminal 30 for their loads to be removed by longshoremen operating a mobile piece of machinery known as a picker.

On May 30, 2012 Plaintiff Elmi was waiting in line to drop off his load when a picker operated by Defendant Michael Cabbacang struck the chassis of his truck. (Dkt. No. 45 at 9.) It is disputed whether the act was intentional and whether the picker struck the chassis once or multiple times. (Id.; Dkt. No. 40 at 4.) Elmi got out of his truck to see what was happening and Cabbacang approached him while swearing and pushed and bumped Elmi with his chest. Elmi called the Port of Seattle Police Department ("POSPD") and Officer Jack Myers arrived at the scene. Officer Myers was unable to determine whether an assault had occurred and did not cite Cabbacang. (Dkt. No. 66, Ex. 1 at 3.) SSA Superintendent Hsue was called to the scene and banned Elmi from Terminal 30 for "life" for violating SSA's terminal rule against unauthorized foot traffic in Terminal 30 and for refusal to move his truck so that work could continue. (Dkt. No. 45 at 10; Dkt. No. 40 at 4.) SSA took no disciplinary action against Cabbacang.

On June 27, 2012 Plaintiff Berhane attempted to use the restroom at Terminal 30 while activity in the terminal ceased for a break period. (Dkt. No. 40 at 5.) Drivers had routinely used the restroom at Terminal 30 for years during break periods. (Dkt. No. 65 at 7.) Defendant Chad Rivers, a longshoreman employed by SSA, confronted Berhane and demanded that he not use the restroom. (Dkt. No. 40 at 5.) When Berhane entered the restroom to urinate, Rivers grabbed him by the neck and collar, choked Berhane, drug him from the restroom, and threw him to the floor causing an injury to his shoulder and significant blood flow. Berhane called the POSPD to the scene and Officer Walter Wesson responded. Id. Officer Wesson interviewed witnesses at the scene and initiated an investigation which resulted in assault charges against Rivers for which he was ultimately convicted. Id. In response to this incident, SSA Foreman John Bell placed sign stating "Employees Only" on the restroom in an effort to institute a policy restricting restroom use to longshoremen and SSA employees. (Dkt. No. 41 at 3.) It is unclear when the sign was placed upon the door and whether Bell's policy was ever communicated to Plaintiffs. SSA took no disciplinary actions against Rivers.

On September 25, 2012 Plaintiff Muhiddin attempted to use the restroom at Terminal 30 during a lunch break when he was confronted by Rivers. Rivers shoved Muhiddin saying "this is a longshoreman's lunchroom." (Dkt. No. 45 at 12.) Muhiddin called the POSPD and Officer Jose Santiago responded and was assisted by SSA employed Security Officer Terence Kwan. (Dkt. No. 66, Ex. 4 at 1.) After Officer Santiago arrived, Defendant Brandon Brent, a SSA superintendent, banned Muhiddin from Terminal 30 for seven days for violating SSA's rule against walking across the terminal. (Dkt. No. 40 at 7.) After receiving the citation, Muhiddin attempted to drop off his load before leaving Terminal 30 when he was cited for an additional seven days for refusing to leave the terminal. It is disputed whether Brent or Bell issued the citation for the additional seven days. (Dkt. No. 40 at 7; Dkt. No. 67, Ex. 12 at 17-19; Dkt. No. 67, Ex. 15 at 18-19.) Officer Santiago issued a citation to Rivers for an investigation of Assault 4. (Dkt. No. 66, Ex. 4 at 2.) No disciplinary actions were taken against Rivers by SSA.


A. Standard for Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A fact issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1060 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248 (1986)). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). The nonmoving party must rely exclusively on admissible evidence to establish such specific facts in opposition to the moving party's motion. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). The Plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

B. Assault and Battery

Plaintiffs claim that SSA Defendants were directly responsible for the alleged batteries and assaults against them. (Dkt. No. 45 at 22-23.) Plaintiffs argue that SSA Defendants ratified Cabaccang and Rivers' conduct by failing to supervise or discipline either, verbally supporting the batteries, and using the violence to justify retaliation against Plaintiffs. Id. The parties dispute two theories of liability for this claim: respondeat superior and negligent supervision. (Id.; Dkt. No. 40 at 13.)

1. Respondeat Superior

Employers may be held vicariously liable for the tortious acts of their employees when it has been established that "the employee was acting in furtherance of the employer's business and that he or she was acting within the course and scope of employment when the tortious act was committed." Thompson v. Everett Clinic, 71 Wash.App. 548, 551 (1993). However "where an employee commits an assault in order to effect a purpose of his or her own, the employer is not liable." Id. at 551-552. A determination of "whether an employee's conduct is within the scope of the employment is ordinarily for the jury, but certain fact patterns may, as a matter of law, relieve the employer of liability." Id. Conduct may be within the scope of employment if "the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment; or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer's interest. " Id. at 552 (emphasis in original). If the tortious conduct was done solely to gratify the personal desires of the employee, it cannot be fairly attributed to the employer. Id. at 553.

The central issue for this claim is whether Cabbacang and Rivers' alleged intentional torts were conducted within the scope of employment. This case presents facts giving rise to a genuine dispute over whether the alleged assaults were personally motivated or done in an effort to enforce SSA's safety policies concerning unauthorized pedestrian traffic in Terminal 30 and restrictions on access to the restroom facilities located in the terminal. If the alleged assaults were conducted to enforce SSA's policies, this raises the further question of whether such enforcement was conducted within the scope of employment.

Defendants argue that that Cabbacang and Rivers alleged assaults were conducted "outside of the scope of employment as daily workers" and that the longshore workers were not acting in furtherance of SSA's business because they were not tasked with enforcing SSA terminal rules. (Dkt. No. 40 at 13-14; Dkt. No. 41 at 2.) There is some dispute over what SSA's terminal rules were when the alleged assaults occurred. SSA's General Terminal Safety Rules state, in relevant part, that: "Drivers must not get out of their ...

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