Present: All the Justices 

GINA CHIN & ASSOCIATES, INC. 

 OPINION BY 

v. Record No. 992557 JUSTICE LAWRENCE L. KOONTZ, JR. 

 November 3, 2000 

FIRST UNION BANK 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 In this appeal, we consider whether the trial court erred 

in striking the evidence at the conclusion of the plaintiff’s 

case-in-chief by ruling, as a matter of law, that a bank teller 

who participated in a scheme to deposit forged checks was acting 

outside the scope of his employment, thus relieving his employer 

from civil liability for those acts. 

BACKGROUND 

 Under well settled principles of law, we will review the 

evidence in the light most favorable to the plaintiff, the nonmoving party. See, e.g., Lenders Financial Corp. v. Talton, 249 

Va. 182, 188, 455 S.E.2d 232, 236 (1995). 

 In 1994, Henry Steven Cardenas was employed as a teller by 

First Union Bank. His duties included, among other things, the 

receiving of cash and checks for deposit into the accounts of 

the bank’s customers. At the beginning of his employment, 

Cardenas received “about two weeks” of training. During that 

training, First Union instructed Cardenas not to accept checks 

made payable to businesses for deposit into personal accounts or 
to accept checks for more than $7,000 for deposit without a 

supervisor’s approval. 

 Prior to beginning his employment with First Union, 

Cardenas was acquainted with Amie Cheryl Lehman, who was dating 

Cardenas’ brother. Shortly after Cardenas began working as a 

teller, he moved into an apartment with his brother and Lehman. 

Lehman, who had formerly been a teller at Signet Bank, was 

employed at that time by Gina Chin & Associates, Inc. (Chin), a 

food wholesaler, as the firm’s accounts payable clerk. 

 After Cardenas had been working at First Union “a little 

over a year,” Lehman, relying on her knowledge as a former bank 

teller, requested his assistance in depositing a forged check 

into her First Union account. The check was drawn on Chin’s 

account at Signet Bank,1 and was made payable to one of Chin’s 

suppliers. Lehman created the check by entering a false invoice 

into Chin’s accounts payable computer program, which produced 

the check on a printer. Lehman then forged both the signature 

of Gina Chin, Chin’s president, as drawer and the endorsement of 

the supplier making the check payable to Lehman. 

 Cardenas at first refused to assist Lehman, “but then she 

kept on insisting and insisting and then she convinced me, I 

 

1

During the course of the ensuing forgery scheme conducted 

by Lehman and Cardenas, Chin moved its account to Citizen’s Bank 

2
guess, by offering me some money on the side.” Lehman told 

Cardenas that “it wouldn’t come back to [him] at all” because 

she reconciled the bank statements for Chin’s account and could 

intercept the statements with the forged checks before they came 

to the attention of the firm’s principals. Cardenas thereafter 

deposited the check into Lehman’s First Union account. The 

drawer bank paid the check, debiting the amount from Chin’s 

account. 

 Ultimately, using the forgery scheme outlined above, Lehman 

and Cardenas succeeded in depositing $270,488.72 in forged 

checks into Lehman’s personal account at First Union.2 Cardenas 

received approximately 20 percent of the funds deposited. After 

Lehman left her employment with Chin, Signet Bank discovered the 

forgery scheme and reported its findings to Chin and the police. 

Lehman and Cardenas subsequently were convicted of one count of 

bank fraud each in federal court. 

 On June 11, 1996, Chin filed a motion for judgment against 

First Union seeking $270,488.72 in damages resulting from the 

forgery scheme of Lehman and Cardenas. Chin alleged that First 

 

of Washington, D.C. Checks drawn on both accounts were 

deposited into Lehman’s First Union account. 

2

The total amount of the forged checks reflected here is 

taken from Chin’s motion for judgment. Chin concedes in that 

pleading that this amount is subject to amendment because some 

of the forged checks were apparently deposited in another bank. 

3
Union was negligent when it accepted for payment checks drawn on 

Chin’s accounts bearing both forged signatures of the drawer and 

forged endorsements of the payees. Chin further alleged that 

First Union was vicariously liable for Cardenas’ criminal acts. 

 The trial court initially sustained First Union’s demurrer 

to Chin’s motion for judgment and entered summary judgment in 

favor of First Union on the ground that under the factual 

circumstances asserted by Chin certain provisions of the Uniform 

Commercial Code barred an action by the drawer of a check 

against the depository bank. We awarded Chin an appeal from 

that judgment, reversed it, and remanded the case for further 

proceedings. Gina Chin & Associates v. First Union Bank, 256 

Va. 59, 63, 500 S.E.2d 516, 518 (1998). In doing so, we held 

that “Chin’s motion for judgment pled a cause of action pursuant 

to §§ 8.3A-404 and –405 of the Uniform Commercial Code, Code 

§§ 8.1-101 through 8.11-108.” Id. at 61, 500 S.E.2d at 517. We 

explained that pursuant to these statutes the concept of 

comparative negligence is employed to determine liability to the 

person sustaining the loss based upon the premise “that all 

participants in the process have a duty to exercise ordinary 

care in the drawing and handling of [checks].” Id. at 62, 500 

S.E.2d at 517. Thus, in the context of the present case, the 

ultimate issue of comparative negligence, which is solely a jury 

issue, centers upon the conduct of First Union through its 

4
employees and that of Chin through its employees. In short, 

there is no dispute that while First Union accepted the forged 

checks for payment and Chin permitted access to its checks by 

its employee who forged them, the ultimate issue still undecided 

at that point in the proceedings was whether First Union was 

negligent or whether First Union and Chin were both negligent 

and, if so, to what comparative extent. 

 Upon remand, a jury trial was commenced in the trial court 

on July 17, 1999. After First Union prevailed on its motion in 

limine to exclude the anticipated testimony of Chin’s expert 

witness regarding established banking customs and standards, the 

trial court stated “the primary issue is scope of employment.” 

Chin then proceeded to produce its evidence to the jury. 

 Cardenas, Lehman, and Donald Chin, Chin’s treasurer, were 

each called as witnesses for Chin. Consistent with the facts 

previously related herein, Cardenas and Lehman detailed the 

scheme to forge the checks and to deposit them into Lehman’s 

account. Cardenas further testified that after he left his 

employment with First Union, Lehman continued the forgery scheme 

using her account at another bank where Cardenas’ brother worked 

as a teller. Donald Chin testified concerning the failure of 

Chin to detect the forgery scheme. At the conclusion of Chin’s 

case-in-chief, the jury was read stipulations of fact, including 

5
the stipulation that Cardenas’ acts were not known to his 

supervisors.3 

 First Union moved to strike Chin’s evidence, asserting that 

Chin had failed to establish that Cardenas was acting within the 

scope of his employment in knowingly accepting the forged checks 

for deposit. First Union argued that “although taking these 

checks may have been incidental to First Union’s business 

because it takes checks for deposit, there was no evidence that 

it was in furtherance of First Union’s interest.” First Union 

contended that this was so because Cardenas willfully violated 

its policies concerning the deposit of commercial checks into 

personal accounts and accepting certain checks without 

management approval. Thus, First Union argued that Cardenas was 

not acting in furtherance of its interest and, hence, not within 

the scope of his employment. 

 Chin, citing Commercial Business Systems, Inc. v. Bell 

South Services, Inc., 249 Va. 39, 453 S.E.2d 261 (1995), and 

other cases, responded that the specific wrongful act by the 

employee need not be in furtherance of the employer’s interest 

 

3

First Union had been permitted to call its expert witness 

out of turn at the end of the first day of the trial, but had 

not formally begun presenting its case when it moved to strike 

Chin’s evidence. Accordingly, we will not consider the evidence 

received from that witness in reviewing the trial court’s 

ruling. 

6
so long as the service that the employee was performing at the 

time was in the course of his employment. Chin asserted that 

its evidence showed that Cardenas was acting as an employee of 

First Union when he accepted the forged checks for deposit. 

 After a lengthy colloquy in which the trial court and 

counsel for both parties discussed in detail the case law 

concerning the doctrine of respondeat superior, the trial court 

sustained First Union’s motion to strike Chin’s evidence. In 

the final order dismissing the case with prejudice, the trial 

court ruled as a matter of law that Cardenas’ acts “were not 

within the scope of the employee’s authority, being in 

contravention of First Union’s directives, and they were not 

within the scope of employment as they were shown not to be in 

furtherance of First Union’s interests; and . . . reasonable 

persons cannot differ on the conclusion reached herein based on 

the evidence presented by the Plaintiff, with all inferences 

most favorable to the Plaintiff.” We awarded Chin this appeal. 

DISCUSSION 

 Initially, we note that the procedural posture of this 

case, as will be demonstrated, is significant. The case is 

before us following the trial court’s grant of the motion to 

strike Chin’s evidence. In that posture, we are unable to 

review this case in consideration of all the evidence that may 

have been produced on the issue in question. Moreover, despite 

7
our consideration of this case in the prior appeal, we are 

unable to reach the ultimate merits, or lack thereof, of Chin’s 

claims against First Union. However, for the reasons that 

follow, we will reverse the judgment of the trial court and 

remand the case for further proceedings. 

 With respect to an assertion of liability based upon the 

doctrine of respondeat superior, this Court made the following 

pertinent observation almost 80 years ago in Davis v. Merrill, 

133 Va. 69, 112 S.E. 628 (1922): 

If a person, acting for himself, wilfully and 

maliciously inflict an injury upon another, he is 

liable in damages for such injury. And there is no 

reason why a master should be permitted to turn his 

business over to servants who have no regard for the 

public welfare and thereby escape the responsibility 

which he would otherwise have to bear. It is 

manifestly right and just that both corporations and 

individuals be required to answer in damages for 

wanton and malicious assaults inflicted upon others by 

their servants, while acting within the scope of the 

servant’s employment and duty, and it matters not 

whether the act of the servant is due to lack of 

judgment, the infirmity of temper, or the influence of 

passion, or that the servant goes beyond his strict 

line of duty and authority in inflicting such 

injury . . . . 

Id. at 74, 112 S.E. at 630-31. 

 Almost from its first consideration by the courts of this 

Commonwealth, however, the determination of the issue whether 

the employee’s wrongful act was within the scope of his 

employment under the facts of a particular case has proved 

“vexatious.” See, e.g., Kidd v. DeWitt, 128 Va. 438, 443, 105 

8
S.E. 124, 125 (1920); Appalachian Power Company v. Robertson, 

142 Va. 454, 456, 129 S.E. 224, 224 (1925). 

 We have defined “scope of employment” in the following 

terms: 

Generally, an act is within the scope of the 

employment if (1) it was expressly or impliedly 

directed by the employer, or is naturally incident to 

the business, and (2) it was performed, although 

mistakenly or ill-advisedly, with the intent to 

further the employer’s interest, or from some impulse 

or emotion that was the natural consequence of an 

attempt to do the employer’s business . . . . 

Kensington Associates v. West, 234 Va. 430, 432, 362 S.E.2d 900, 

901 (1987)(emphasis added). The emphasized language in this 

definition is the focal point of First Union’s assertion in the 

present case. First Union apparently interprets this language 

to require that the specific act which caused the injury be 

performed by the employee with an intent to benefit the 

employer. At first blush, this language is susceptible to such 

an interpretation. However, our prior decisions do not support 

that interpretation by implication, see, e.g., Plummer v. Center 

Psychiatrists, Ltd., 252 Va. 233, 238, 476 S.E.2d 172, 175 

(1996)(counselor engaging in unethical sexual relationship with 

patient was potentially acting within scope of employment); 

Commercial Business Systems, 249 Va. at 46, 453 S.E.2d at 266 

(employee violating company rule against self-dealing and 

accepting illegal bribes to award contracts was potentially 

9
acting within the scope of employment), and we expressly reject 

it now. 

 In cases involving a willful and wrongful act of an 

employee, a narrow and literal reading of the language in this 

definition, which would create a patent conflict within it, is 

not to be applied as a matter of law to the facts of a 

particular case. The present case and First Union’s assertions 

in support of its motion to strike Chin’s evidence are 

illustrative of the point. Where an employee commits a willful 

and wrongful act that results in injury to others, simple logic 

suggests that such employee generally does not do so “with the 

intent to further the employer’s interest.” That is to say, the 

employee generally does not intend to benefit the employer. 

 Here, it may well be reasonable to conclude that a bank 

teller does not intend to further the interest of his employer 

bank when he knowingly accepts forged checks for deposit for his 

own gain. However, that does not resolve the legal issue 

presented, as a matter of law, to the trial court upon a motion 

to strike the injured party’s evidence. Rather, it should be 

apparent that the proper application of this definition in the 

context of the doctrine of respondeat superior does not resolve 

into a simplistic determination that an employee’s willful and 

wrongful act was not done with the intent to further the 

employer’s interest or to benefit the employer in some way. Any 

10
doubt that may have existed in that regard was clearly resolved 

in Commercial Business Systems and in Plummer. 

 As in the present case, we recognize that the difficulty in 

applying this definition to the facts of a particular case 

frequently arises where “[t]he real inquiry is, was the question 

as to whether [the employee] was acting within the scope of his 

employment . . . one to be determined by the Court, or was it a 

question of fact to be submitted to, and determined by, the 

jury?” Crowell v. Duncan, 145 Va. 489, 500, 134 S.E. 576, 579 

(1926). In that regard, a motion to strike requires the trial 

court to test the evidence against the applicable burdens of 

production before permitting the jury to weigh that evidence 

against the applicable burden of persuasion. 

 Settled principles guide the trial court’s considerations. 

While the plaintiff has the burden of persuasion on the issue 

whether the employee was acting within the scope of his 

employment at the time of the act complained of, we have 

consistently held that proof of the employment relationship 

creates a prima facie rebuttable presumption of the employer’s 

liability. McNeill v. Spindler, 191 Va. 685, 694-95, 62 S.E.2d 

13, 17-18 (1950). Thus, “[w]hen an employer-employee 

relationship has been established, ‘the burden is on the 

[employer] to prove that the [employee] was not acting within 

the scope of his employment when he committed the act complained 

11
of, and . . . if the evidence leaves the question in doubt it 

becomes an issue to be determined by the jury.’” Kensington 

Associates, 234 Va. at 432-33, 362 S.E.2d at 901 (quoting 

Broaddus v. Standard Drug Co., 211 Va. 645, 653-54, 179 S.E.2d 

497, 504 (1971)); see also Plummer, 252 Va. at 235, 476 S.E.2d 

at 174; Turner v. Burford Buick Corp., 201 Va. 693, 698, 112 

S.E.2d 911, 915 (1960). 

 Admittedly, the trial court’s task may be particularly 

difficult in cases in which the injury is caused by an 

intentional, often criminal, tortious act which clearly would 

not have been contemplated by the employer as being within the 

scope of employment, but which nonetheless was performed 

incident to the employment and even facilitated thereby.4 Such 

cases invoke consideration of whether the employee deviated from 

the scope of his employment because of an “external, 

independent, and personal motive . . . to do the act upon his 

 

4

An alternate approach in such circumstances has been to 

assign liability to the employer not vicariously through 

respondeat superior, but directly through the torts of negligent 

hiring and negligent retention. See, e.g., J. v. Victory 

Tabernacle Baptist Church, 236 Va. 206, 208-09, 372 S.E.2d 391, 

393 (1988)(confirming prior recognition of the tort of negligent 

hiring); Philip Morris Inc. v. Emerson, 235 Va. 380, 401, 368 

S.E.2d 268, 279 (1988)(recognizing tort of negligent retention). 

Chin did not allege either of these torts in its motion for 

judgment. Chin did allege negligent failure to supervise as a 

theory of liability in its motion for judgment, but abandoned 

that claim at the outset of trial on remand. Accordingly, the 

viability of that claim is not before us in this appeal. 

12
own account.” Broaddus, 211 Va. at 653, 179 S.E.2d at 503-04. 

In that regard, we have distinguished between the motive of the 

employee and the relevant question whether the service performed 

was within the scope of employment. In making this distinction, 

we have held that the motive of the employee in committing the 

act complained of is not determinative of whether it took place 

within the scope of the employment relationship. Commercial 

Business Systems, 249 Va. at 45, 453 S.E.2d at 266; Tri-State 

Coach Corp. v. Walsh, 188 Va. 299, 305-06, 49 S.E.2d 363, 366 

(1948). Rather, the issue is “whether the service itself, in 

which the tortious act was done, was within the ordinary course 

of such business.” Davis v. Merrill, 133 Va. 69, 78, 112 S.E. 

628, 631 (1922); accord Commercial Business Systems, 249 Va. at 

44, 453 S.E.2d at 265. 

 In Commercial Business Systems, an employee, in violation 

of conflict of interest rules established by his employer, 

created a business to work with companies that provided services 

to his employer. The employee then used his position as a 

contract negotiator and administrator to funnel business to 

suppliers who agreed to work with his company and pay him 

illegal “kickbacks.” 249 Va. at 43, 453 S.E.2d at 265. We held 

that these facts did not “conclusively establish that [the 

employee] was not acting within the scope of his employment.” 

Id. at 46, 453 S.E.2d at 266. Although the employee’s motive 

13
was to advance his self-interest, rather than the interest of 

his employer, he was nonetheless “performing his duties . . . in 

the execution of the services for which he was employed.” Id.

 We emphasize that the employee’s improper motive is not 

irrelevant to the issue whether the act was within the scope of 

employment. Rather, it is merely a factor to be considered in 

making that determination, and, unless the deviation from the 

employer’s business is slight on the one hand, or marked and 

unusual on the other, but falls instead between those two 

extremes, the question is for the jury. McNeill, 191 Va. at 

695, 62 S.E.2d at 18; accord Kensington Associates, 234 Va. at 

433, 362 S.E.2d at 902. Thus, in Commercial Business Systems, 

we held that “the evidence presents a jury issue whether [the 

employee] acted within the scope of his employment when he 

committed the wrongful acts.” 249 Va. at 46, 453 S.E.2d at 266; 

see also Plummer, 252 Va. at 238, 476 S.E.2d at 175. 

 Applying these principles, the issue presented to the trial 

court by First Union’s motion to strike was whether the evidence 

presented by Chin was such that, as a matter of law, a 

reasonable juror could not find that an employer-employee 

relationship existed between Cardenas and First Union or that, 

although such a relationship existed, Cardenas was acting within 

the scope of that employment at the time of the commission of 

the acts which injured Chin. First Union does not contest that 

14
Chin produced clear evidence that established the necessary 

employment relationship between Cardenas and First Union. 

Accordingly, Chin’s evidence established a prima facie case of 

First Union’s liability. 

 First Union contends, however, that Chin’s evidence was 

also sufficient to meet First Union’s burden of production on 

the issue whether Cardenas’ acts were nevertheless outside the 

scope of that employment and, moreover, that this evidence was 

sufficient to rebut the presumption of liability as a matter of 

law. We disagree. 

 First Union asserts that Chin’s evidence establishes that 

Cardenas’ wrongful acts were not “expressly or impliedly 

directed by the employer” because he violated directives in 

accepting commercial checks for deposit into a personal account, 

in failing to obtain a manager’s approval to accept high value 

checks for deposit, and in knowingly accepting checks for 

deposit with forged endorsements. This assertion is without 

merit because the act need not be expressly or impliedly 

directed by the employer in order for the act to occur within 

the scope of the employment. Similarly, an act committed in 

violation of an employer’s direction is not always beyond the 

scope of the employment. Rather, as previously noted, the test 

is “whether the service itself, in which the tortious act was 

done, was within the ordinary course of” the employer’s 

15
business. In this instance, it is clear that accepting checks 

for deposit by a bank teller is a service within the ordinary 

course of First Union’s banking business. 

 First Union further asserts that Chin’s evidence also 

establishes that Cardenas was acting exclusively for his own 

benefit and that of Lehman. Thus, First Union contends that 

Cardenas was acting outside the scope of his employment because 

he had an “external, independent, and personal motive” to 

perform the act. 

 There can be no doubt that Cardenas was not steadfast in 

the performance of his duties and obligations to his employer 

when he chose to participate in a criminal scheme to accept 

forged checks for deposit. Cardenas was acting out of selfinterest in participating in Lehman’s scheme, and his conduct 

was “outrageous and violative of his employer’s rules.” 

Commercial Business Systems, 249 Va. at 46, 453 S.E.2d at 266. 

Nonetheless, it is clear that in doing so he was performing a 

normal function of a bank teller in accepting checks for 

deposit. 

 In sum, First Union’s assertions, and the apparent basis of 

the trial court’s decision to strike Chin’s evidence and to 

award summary judgment to First Union, are premised not on the 

failure of Chin to present sufficient evidence to establish a 

prima facie case of the necessary employment relationship at the 

16
time of the injury to Chin, but on the failure of that evidence 

to prove that the acts complained of were committed within the 

scope of that employment. As we have explained, Chin did not 

have the burden of presenting evidence that Cardenas’ acts were 

within the scope of his employment. Rather, having established 

that the employment relationship existed, Chin was entitled to 

have the case go forward with the burden on First Union to prove 

that Cardenas acted outside the scope of his employment. 

 The procedural posture of the case, as we noted above, is 

significant. Chin’s evidence, without any additional evidence 

offered by First Union, was sufficient to establish a jury issue 

whether Cardenas acted within the scope of his employment. That 

issue therefore, on the evidence presented, did not lend itself 

to a resolution as a matter of law by the trial court. 

CONCLUSION 

 For these reasons, we hold that the trial court erred in 

sustaining First Union’s motion to strike Chin’s evidence and 

awarding summary judgment to First Union. Accordingly, we will 

reverse the judgment of the trial court and remand the case for 

further proceedings consistent with the views expressed in this 

opinion. 

 Reversed and remanded. 

17