IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LEROY COOK, JR., and )

KIMBERLY A. COOK )

)

Plaintiffs, )

)

v. ) C.A. No. N17C-03-208 JRJ

)

J AND V TRUCKING COMPANY, )

INC., and J & V TRUCKING, INC., )

Jointly and Severally, )

)

Defendants. )

Date Submitted: February 8, 2021

Date Decided: April 7, 2021

MEMORANDUM OPINION

Upon Defendant J and V Trucking Company, Inc.’s Motion for Summary 

Judgment: GRANTED IN PART AND DENIED IN PART.

Leroy A. Tice, Esquire, and Charles H. Toliver, IV, Esquire, Leroy A. Tice, Esquire, 

P.A., 1203 North Orange Street, 2nd Floor Wilmington, Delaware 19801, Attorneys 

for Plainitffs.

Tiffany M. Shrenk, Esquire, MacElree Harvey, Ltd., 5721 Kennett Pike, Centreville, 

Delaware 19807; Attorney for Defendant J and V Trucking Company, Inc.

Amy M. Taylor, Esquire, Heckler & Fabrizzio, 800 Delaware Avenue, Suite 200, 

Wilmington, Delaware 19801, Attorney for Defendant J and V Trucking Company, 

Inc.

Jurden, P.J.
2

I. INTRODUCTION

After a minor traffic collision, a physical altercation ensued between Plaintiff 

Leroy Cook, Jr. (“Cook”), and Cruz Garcia, a truckdriver formerly employed by

Defendant J and V Trucking Company, Inc.1 Cook sued Garcia and Defendant for 

several torts. As the case developed, Garcia was dismissed, and the Court allowed 

Cook to amend his complaint to add his wife, Plaintiff Kimberly Cook (“Ms. Cook”), 

so that she could assert a loss of consortium claim.2 Pending before the Court is 

Defendant’s Motion for Summary Judgment. For the reasons explained below, 

Defendant’s Motion is GRANTED IN PART AND DENIED IN PART.

II. BACKGROUND

A. Factual Background

1 Cook named two corporate defendants in his original Complaint, and both remain in this case. 

See generally Compl. (naming Cruz Garcia, J and V Trucking Company, Inc., and J & V Trucking 

Inc. as defendants) (Trans. ID. 60360174). J & V Trucking Inc. remains unrepresented. The Court 

assumes that J and V Trucking Company, Inc. and J & V Trucking Inc. refer to the same corporate 

entity. Accordingly, the Court uses the singular “Defendant,” which refers only to J and V 

Trucking Company, Inc., the represented entity.

2 On October 10, 2020, Cook and Ms. Cook (collectively, “Plaintiffs”) filed a six-count amended 

Complaint (“Amended Complaint”) against Defendant. See generally First Amended Complaint 

(Trans. ID. 66008889). Plaintiffs assert the following claims: tortious assault (Count I), tortious 

battery (Count II), and intentional infliction of emotional distress (Count III) on the doctrine of 

respondeat superior (Count IV); negligent hiring, retention, and supervision of Garcia (Count V); 

and loss of consortium (Count VI). Id. at 2–6, ¶¶ 10–39.
3

On or about February 24, 2014, Defendant hired Cruz Garcia as a truck 

driver.3 At the time he was hired, Garcia signed a document informing him that 

“fighting” or using “threatening or abusive language” were “reasons for immediate 

termination of employment.”4 

On May 26, 2016, Cook was involved in a minor traffic collision with Cruz 

Garcia.5 Garcia was Defendant’s employee at the time of the collision.

6

 Cook and 

Garcia exited their vehicles and engaged in a physical altercation.

7

 Ultimately, Cook 

was found at fault for the traffic collision,8and Garcia was arrested and faced 

criminal charges because of the physical altercation.

9

 Defendant no longer employs 

Garcia.10

B. Procedural History

On November 30, 2020, Defendant filed the instant Motion for Summary 

Judgment challenging Plaintiffs’ claims based on the doctrine of respondeat 

superior and Plaintiffs’ negligent hiring, retention, and supervision claim.11 Briefing 

3

See Defendant J and V Trucking Company, Inc.’s Motion for Summary Judgment (“Opening 

Brief”), Exhibit B (Trans. ID. 66145588). Garcia possessed a commercial driver’s license and a 

Transportation Worker Identification Credential (“TWIC”) when he was hired. Opening Brief, 

Exhibit C, at 23:16–23 (Trans. ID. 66145588).

4 Opening Brief, Exhibit D (Trans. ID. 66145588).

5 Plaintiffs’ Response in Opposition to Defendants’ Summary Judgment Motion (“Responding 

Brief”), Exhibit A, at 36:14–19 (Trans. ID. 66145588).

6

See Opening Brief, Exhibit A, No. 38 (Trans. ID. 66145588).

7

See id.

8 Opening Brief, Exhibit E, at 47:6–13 (Trans. ID. 66145588).

9 Opening Brief, Exhibit A, No. 25 (Trans. ID. 66145588).

10 Opening Brief, Exhibit A, No. 43 (Trans. ID. 66145588).

11 See generally Opening Brief (Trans. ID. 66145588).
4

finished on February 2, 2021.12 On March 17, 2021, the Court issued an order stating 

that, for purposes of the instant Motion, it would consider the criminal dockets that 

Plaintiffs attached to their Responding Brief, even though those dockets were

produced after the discovery cutoff.13

III. STANDARD OF REVIEW

Summary judgment is appropriate only if the moving party shows 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.”

14

 “When the evidence shows no genuine issues of 

material fact in dispute, the burden shifts to the nonmoving party to demonstrate that 

there are genuine issues of material fact that must be resolved at trial.”15 “All facts 

are viewed in a light most favorable to the non-moving party.”16

IV. DISCUSSION

A. Respondeat Superior

12 On January 25, 2021, Plaintiffs filed their Responding Brief. See generally Responding Brief 

(Trans. ID 66280763). On February 8, 2021, Defendant filed its Reply Brief. See generally

Defendant J and V Trucking Company, Inc.’s Reply in Support of Motion for Summary Judgment 

(“Reply Brief”) (Trans. ID. 66318828).

13 See generally Order (Trans. ID 66428844); Cook v. J and V Trucking Company, Inc., 2021 WL 

1016450 (Del. Super. Ct. Mar. 17, 2021).

14 Super. Ct. Civ. R. 56(c).

15 Tolliver v. U.S. Bank Nat’l Ass’n, 2020 WL 2095830, at *1 (Del. Apr. 29, 2020) (internal 

quotation marks omitted) (quoting Grabowski v. Mangler, 938 A.2d 637, 641 (Del. 2007)).

16 Preston Hollow Capital LLC v. Nuveen LLC, 2020 WL 7365808, at *4 (Del. Super. Ct. Dec. 15, 

2020) (citing Burkhart v. Davies, 602 A.2d 56, 58–59 (Del. 1991)).
5

Respondeat superior is a doctrine of agency law under which “an employer is 

subject to liability for torts committed by employees while acting within the scope 

of their employment.”17 To determine whether an employee acted within the scope 

of employment, the Court consults § 228 of the Restatement (Second) of Agency.18 

If the Court finds that the employee did not act within the scope of employment, then 

the Court consults the exceptions in § 219.

19

 “When § 219’s exceptions apply, an 

employer can be held responsible under respondeat superior even if § 228 is not 

satisfied.”

20

1. Garcia Was Not Acting Within the Scope of Employment When 

He Engaged in a Physical Assault with Cook

Section 228 provides:

(1) Conduct of a servant is within the scope of employment if, but only 

if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space 

limits;

(c) it is actuated, at least in part, by a purpose to serve the master, 

and

(d) if force is intentionally used by the servant against another, 

the use of force is not unexpectable by the master.

17 Verrastro v. Bayhospitalists, LLC, 208 A.3d 720, 724 (Del. 2019) (internal quotation marks and 

brackets omitted) (first quoting Restatement (Third) of Agency § 2.04 (2005); and then citing 

Restatement (Second) of Agency § 219 (1958)).

18 Sherman v. State Dep’t of Pub. Safety, 190 A.3d 148, 154 (Del. 2018) (citations omitted) (noting 

that “§ 228 . . . has been adopted as Delaware law”).

19 Id.

20 Id.
6

(2) Conduct of a servant is not within the scope of employment if it is 

different in kind from that authorized, far beyond the authorized time 

or space limits, or too little actuated by a purpose to serve the master.

21

Here, Defendant argues that Garcia was not acting within the scope of employment 

pursuant to § 228 when he engaged in a physical altercation with Cook after the 

vehicle collision.22 Defendant asserts that it hired Garcia as a truck driver, so 

Defendant expected Garcia merely to transport goods.

23

 Next, Defendant points out 

that it prohibited Garcia from using physical force or threatening words or conduct, 

so Garcia could not have been motivated by serving Defendant.24 Defendant also 

denies that it could have expected Garcia to use force in this situation because he 

had not exhibited violence or committed a disciplinary infraction while employed 

by Defendant.

25

Plaintiffs agree that Defendant hired Garcia as a truck driver for the purpose 

of transporting goods but deny the remainder of Defendant’s argument.26 Plaintiffs 

also emphasize that, for purposes of § 228(1)(d), Defendant need not have expected 

the particular conduct but only the risk of general wrongdoing.27 Lastly, Plaintiffs 

21 Restatement (Second) of Agency § 228 (1958).

22 Opening Brief, at 4, ¶ 7 (Trans. ID. 66145588).

23 Id.

24 Id.

25 Id.

26 Id.

27 Id. at 4, ¶ 7 (citing Sherman v. State Dep’t of Pub. Safety, 190 A.3d 148, 154 (Del. 2018)).
7

argue that whether an employee acted within the scope of employment is usually a 

jury question.28

The Court finds that Garcia was not acting within the scope of employment 

when he engaged in a physical altercation with Cook. The elements in § 228(1) are 

conjunctive; each must be met to find that an employee was acting within the scope 

of employment.29 Here, Plaintiffs concede that § 228(1)(a) has not been met. 

Specifically, Plaintiffs “admit[] that Mr. Garcia was hired as a long-distance tractortrailer driver to haul mushrooms from Pennsylvania to Massachusetts.”30

 So Garcia 

was not engaging in the kind of conduct that he was employed to perform. In 

addition, the record shows that Garcia signed a document that provides, in boldface 

type, that fighting is a ground for immediate termination of employment.

31

 

Accordingly, the Court finds that Garcia was not acting within the scope of 

employment pursuant to § 228, so the Court will move on to the exceptions in § 219.

2. Plaintiffs Cannot Satisfy Any of the Exceptions in § 219(2)

Section 219 provides:

(1) A master is subject to liability for the torts of his servants committed 

while acting in the scope of their employment.

28 Id. (citing Sherman, 190 A.3d at 170).

29 See Sherman, 190 A.3d at 174 (suggesting that Doe would not have prevailed under § 228 

because her complaint did not allege a violation of the “Motivation Prong” of § 228 (i.e., § 

228(1)(c)).

30 Responding Brief, at 3, ¶ 7 (Trans. ID 66280763).

31 Opening Brief, Exhibit D (Trans. ID. 66145588).
8

(2) A master is not subject to liability for the torts of his servants acting 

outside the scope of their employment, unless:

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the master, or

(d) the servant purported to act or to speak on behalf of the 

principal and there was reliance upon apparent authority, or he 

was aided in accomplishing the tort by the existence of the 

agency relation.32

Defendant argues that there is no evidence in the record to support any of the 

exceptions in § 219(2).33 As for § 219(2)(a) in particular, Defendant asserts

that there is evidence that it prohibited Garcia from engaging in forceful 

conduct.34 Plaintiffs respond that the record shows that Defendant “acted 

negligently or recklessly in [its] hiring, supervision[,] and training of Mr. 

Garcia”—invoking the language of § 219(2)(b).35

It appears that Plaintiffs are attempting to “double dip” their negligent hiring 

and supervision claim. They assert negligent hiring and supervision as a direct claim 

against Defendant in their Amended Complaint.

36

 But now, they also seek to use 

32 Restatement (Second) of Agency § 219 (1958).

33 Opening Brief, at 5, ¶ 9 (Trans. ID. 66145588).

34 Id.

35 Responding Brief, at 4, ¶ 9 (Trans. ID 66280763).

36 First Amended Complaint, at 5–6, ¶¶ 25–35 (Trans. ID. 66008889) 
9

that claim as a basis for imposing vicarious liability against Defendant through the 

doctrine of respondeat superior.

37

 The Court finds that Plaintiffs cannot do so.

Delaware law recognizes that the Restatement (Second) of Agency embraces

negligent hiring and supervision claims—but in § 213, not in § 219.38 And the Court 

has suggested that § 219(2)(b) in particular does not apply to negligent hiring and 

supervision claims.39 Doe v. Bicking involved a negligent hiring and supervision

claim, but the Court analyzed that claim separately from its discussion of respondeat 

superior, § 228, and § 219.40 And when the Court discussed the exceptions in § 219,

it found that only § 219(2)(c) and § 219(2)(d) had “potential applicability.”41 The 

Court did not find that the presence of a negligent hiring and supervision claim made

§ 219(2)(b) potentially applicable. For these reasons, the Court finds that Plaintiffs 

cannot use their negligent hiring and supervision claim to meet the exception in

37 This “double dipping” appears to be a recent development. The allegations in the respondeat 

superior section of the Amended Complaint make no mention of Defendant’s alleged negligence 

in hiring Garcia. Id. at 4, ¶¶ 21–24.

38 See Simms v. Christina School Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30, 2004) 

(citing Knerr v. Gilpin, Van Trump & Montgomery, Inc., 1998 WL 40009 (Del. Super. Ct. Apr. 8, 

1988); Restatement (Second) of Agency § 213 (1958)); A.R. Anthony & Sons v. All-State 

Investigation Sec. Agency, Inc., 1983 WL 881979, at *2 (Del. Super. Ct. Sept. 27, 1983) (citations 

omitted); see also Restatement (Second) of Agency § 213, cmt. d (1958) (citation omitted) (“Agent 

dangerous. The principal may be negligent because he has reason to know that the servant or other 

agent, because of his qualities, is likely to harm others in view of the work or instrumentalities 

entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable 

under the rule that one initiating conduct having an undue tendency to cause harm is liable 

therefor.”).

39 See generally Doe v. Bicking, 2020 WL 374677 (Del. Super. Ct. Jan. 22, 2020).

40 Id. at *5; id. at *6–13.

41 Id. at *7.
10

§ 219(2)(b). As for the other exceptions in § 219(2), Plaintiffs have neither argued 

nor shown that there is a genuine issue of material fact.

In sum, the Court finds that Garcia was not acting within the scope of 

employment pursuant to § 228, that Plaintiffs cannot use their negligent hiring and 

supervision claim to avail themselves of § 219(2)(b), and that Plaintiffs have not 

shown a genuine issue of material fact with respect to the other exceptions in § 

219(2). Accordingly, the Court grants summary judgment as to Count IV of the 

Amended Complaint (respondeat superior). And because respondeat superior is 

the means by which Plaintiffs seeks to hold Defendant liable for tortious assault, 

tortious battery, and intentional infliction of emotional distress, the Court grants 

summary judgment as to Counts I, II, and III of the Amended Complaint as well.

B. Negligent Hiring, Retention, and Supervision

“Under Delaware law, an employer is liable for negligent hiring and 

supervision in . . . ‘[giving] improper or ambiguous orders or in failing to make 

proper regulations, or in [employing] improper persons involving risk of harm to 

others, or in [supervising] the employee’s activity.’”42 “The negligence is based 

42 Doe v. Bicking, 2020 WL 374677, at *5 (Del. Super. Ct. Jan. 22, 2020) (quoting Simms v. 

Christiana School Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30, 2004)).
11

upon a failure to exercise the care that a reasonably prudent person would exercise 

under the circumstances.”

43

Defendant argues that a jury could not find it negligent based on the evidence

in the record.

44

 According to Defendant, nothing in the record shows that Garcia 

had any incidents of misconduct from the date he was hired (on or about February 

24, 2014) to the date of the physical altercation (May 16, 2016).45 Nor is there any 

evidence, Defendant continues, that Garcia had been terminated by an employer 

prior to his joining Defendant.46 Lastly, Defendant contends that the record shows 

that Garcia had the proper credentials when he was hired and that he was made to 

sign a form indicating that Defendant prohibited him from fighting.47 

Plaintiffs respond that there is evidence in the record that creates a genuine 

issue of material fact as to whether Defendant was negligent in hiring Garcia.48 

Specifically, Plaintiff avers that Michael Cutone, “who hired Mr. Garcia, did not 

inquire, investigate[,] or research Mr. Garcia’s employment history, criminal past or 

motor vehicle record.” Rather, according to Plaintiffs, Cutone was concern only 

with whether Garcia “possessed a valid commercial driver’s license and a ‘TWIC’ 

43 Simms v. Christiana School Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30, 2004) 

(citation omitted).

44 Opening Brief, at 6, ¶ 11 (Trans. ID. 66145588).

45 Opening Brief, at 6, ¶ 11 (Trans. ID. 66145588).

46 Id.

47 Id.

48 Responding Brief, at 5–6, ¶ 11 (Trans. ID. 66145588).
12

card, the requisite baseline for hauling long distance.”

49

 Plaintiffs also point to 

various documents that they attached to their Responding Brief, which include

incident reports from the Delaware Transit Corporation—a previous employer of 

Garcia’s—and criminal dockets that purport to show Garcia’s convictions for Simple

Assault, Third-Degree Assault, and Unlawful Sexual Contact.

50

 Such documents, 

Plaintiffs believe, constitute “evidence of misconduct that would put the Defendants 

on notice of Mr. Garcia’s violent propensities in his past employment or personal 

life.”51

Defendant makes three points in reply. First, Defendant asserts that Plaintiffs 

have not produced an expert to establish the standard of care that an employer must 

meet when the hiring or supervising truck drivers.52 Second, Defendant maintains 

that Cutone did not perform his own background check before hiring Garcia because 

he believed that Garcia had undergone background checks by the federal 

government (to obtain his driving credentials) and by the insurance company.

53

 

49 Id.

50

 Id. at 4–5, ¶ 9; id. at 6, ¶ 11. See generally id., Exhibit B; id., Exhibit C. In its Reply Brief, 

Defendant argued that Plaintiff should not be allowed to rely on the criminal dockets because they 

were produced after the discovery cutoff. Reply Brief, at 1–2, ¶ 2 (Trans. ID. 66318828). On 

March 17, 2021, the Court issued an order clarifying that it would consider these criminal dockets 

in ruling on the instant Motion for Summary Judgment. See generally Order (Trans. ID 

66428844); Cook v. J and V Trucking Company, Inc., 2021 WL 1016450 (Del. Super. Ct. Mar. 17, 

2021). 

51 Responding Brief, at 6, ¶ 11 (Trans. ID. 66145588).

52 Reply Brief, at 4–5, ¶¶ 6–7 (Trans. ID. 66318828).

53 Id. at 4, ¶ 5 (citing Responding Brief, Exhibit A, at 23:16-23; 24:7-12; id. at 

Id. at 22:6-15 (Trans. ID. 66145588)).
13

Third, Defendant argues that Garcia’s criminal history does not provide a basis for 

determining that Defendant was negligent in hiring or supervising Garcia.

54

Defendant avers that Garcia’s most recent conviction was about nine years before 

he was hired, and he had no incidents of misconduct in the first two years of his 

employment with Defendant.55 

As an initial matter, the Court finds that Plaintiffs need not produce an expert 

to establish the standard of care governing the hiring and supervision of truck 

drivers. Defendant correctly notes that expert testimony is necessary to establish 

“the standard of care applicable to a professional.”56 A professional “is one who 

possesses a certain skill or other specialized knowledge that the average lay juror 

does not possess.”57 Common examples of professionals include physicians, 

attorneys, architects, and engineers.58 But it is sometimes difficult to distinguish 

between a professional and a non-professional. 

Fortunately, the Court’s decision in White v. Mood provides guidance. In 

White, the Court contrasted the home inspector involved in that case with the 

property manager involved in a previous case, Vohrer v. Kinnikin:

54 Id. at 2–3, ¶ 3.

55 Id.

56 Id. at 4, ¶ 6 (internal quotation marks omitted) (quoting Seiler v. Levitz Furniture Co. of E. 

Region, Inc., 367 A.2d 999 (Del. 1976)).

57 White v. Mood, 2020 WL 996736, at *6 (Del. Super. Ct. Mar. 2, 2020) (internal quotation marks 

omitted) (quoting Vohrer v. Kinnikin, 2014 WL 1203270, at *3 (Del. Super. Ct. Feb. 26, 2014)).

58 See Seiler v. Levitz Furniture Co. of Eastern Region, Inc., 367 A.2d 999, 1007 (Del. 1976) 

(citations omitted).
14

In Vohrer v. Kinnikin, the court concluded that a property manager, 

whose duties included arranging and directing repair work, was not a 

professional in the sense that they were held to an elevated standard of 

care. The court reasoned that Kinnikin did not receive any specialized 

training in order to work as an apartment maintenance worker and, as a 

result of that determination, expert testimony was not required to 

establish the standard of care applicable to Kinnikin. Unlike the 

defendant in Vohrer, home inspectors are required, by Delaware law, 

to undergo specialized training and continue their education to maintain 

their licenses.59

Here, Cutone is more like the non-professional property manager in Vohrer than the 

professional home inspector in White. For example, nothing in the record suggests

that Delaware law requires Cutone to undergo specialized training or continuing 

education to hire and supervise truck drivers. And Cutone’s responsibility of 

supervising truck drivers is similar to the property manager’s responsibility of 

“arranging and directing repair work.”60 Because Cutone is more like the nonprofessional property manager in Vohrer than the professional home inspector in 

White, the Court finds that Cutone is not a professional for purposes of establishing 

the standard of care governing the hiring and supervision of truck drivers. Thus, 

Plaintiffs need not produce an expert; the jury will determine the appropriate 

standard of care.61

59 White, 2020 WL 996736, at *6 (citing Vohrer v. Kinnikin, 2014 WL 1203270, at *3 (Del. Super. 

Ct. Feb. 26, 2014)).

60 Id.

61 Ridgeway v. Acme Mkts., Inc., 2018 WL 4212140, at *3 (Del. Sept. 5, 2018) (citation omitted)

(“The jury typically decides the standard of care and its breach when the facts are within their 

common knowledge. But, when the standard of care requires resort to technical or other complex 

principles, the plaintiff must establish the standard of care through expert testimony.”); see also
15

The next issue is whether Cutone’s reliance on other entities excused Cutone

from performing his own background check on Garcia. In essence, this is a question 

of whether Defendant—acting through Cutone—breached its standard of care. 

Because the jury will determine Defendant’s standard of care, it will also determine 

whether Defendant breached that standard of care in deciding not to perform an 

independent background check on Garcia.

62

 

Finally, reasonable minds may differ about whether Garcia’s criminal 

convictions are too old to put Defendant on notice of Garcia’s potential issues with 

violence. Although Defendant believes that “Mr. Garcia’s criminal history is 

insufficient to support knowledge of the need to control Mr. Garcia,” the Court 

cannot make this determination as a matter of law.63 Accordingly, the Court finds 

that there is a genuine issue of material fact as to whether Defendant was negligent 

in hiring and supervising Garcia, so the Court denies summary judgment as to Count 

V of the Amended Complaint.

C. Loss of Consortium

This leaves Count VI of the Amended Complaint, which is Ms. Cook’s loss 

of consortium claim. Defendant recognizes that this claim is “a derivative of 

Roberts v. Daystar Sills, Inc., 2008 WL 8203205, at *2 (Del. Super. Ct. Dec. 8, 2008) (citing 

Delmarva Power & Light v. Stout, 380 A.2d 1365 (Del. 1977)) (“When a judicial decision or 

legislative enactment has not established the standard of care, the determination of that standard 

must be made by the jury.”).

62 Ridgeway, 2018 WL 4212140, at *3 (citation omitted).

63 Reply Brief, at 3, ¶ 3 (Trans. ID. 66318828). 
16

Plaintiff[s’] causes of action.”64 Hence, Defendant does not contest the loss of 

consortium claim per se. Because the Court finds that Plaintiffs’ negligent hiring 

and supervision claim survives the instant Motion for Summary Judgment, the Court 

finds that the derivative loss of consortium claim survives as well. 

V. CONCLUSION

In sum, the Court finds that Plaintiffs cannot invoke the doctrine of respondeat 

superior to establish Defendant’s liability. Pursuant to § 228 of the Restatement 

(Second) of Agency, Garcia was not acting within the scope of employment when 

he engaged in a physical altercation with Cook, and Plaintiffs cannot satisfy any of 

the exceptions in § 219. But the Court finds that there is a genuine issue of material 

fact as to whether Defendant was negligent in hiring and supervising Garcia. 

Accordingly, Defendant’s Motion for Summary Judgment is GRANTED as to 

Counts I, II, III, and IV of the Amended Complaint and DENIED as to Counts V 

and VI of the Amended Complaint.

IT IS SO ORDERED.

Jan R. Jurden

Jan R. Jurden, President Judge

cc: Prothonotary

64 Id. at 2, ¶ 4. (citation omitted).