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A cab company will not be liable for a driver punching and kicking a passenger who was being restrained after trying to skip out on paying the fare, the state Superior Court has ruled.

On July 29, a three-judge Superior Court panel ruled in Spitsin v. WGM Transportation that because the passenger had already been restrained, the force was unreasonable, and therefore outside the scope of employment.

Judge David N. Wecht, who wrote the majority’s 16-page opinion, also noted the complaint failed to directly implicate how defendant cab company WGM Transportation Inc.’s role contributed to the incident.

“The pleading contained no hint as to how WGM contributed to [defendant taxi driver James] Johnson’s apparent belief that his fare-collection responsibilities, however characterized, extended even to the sort of excessive and punitive brutality inflicted by Johnson on [plaintiff Igor] Spitsin,” Wecht said. “Spitsin’s complaint does not even aver that any act by WGM arguably justified an inference by Johnson, whether reasonable or unreasonable, that such behavior was viewed as appropriate by WGM.”

The decision upholds a ruling from the Monroe County Court of Common Pleas granting the cab company’s preliminary objections.

Spitsin’s attorney, Brett Riegel of Anders Riegel & Masington, said the decision sends a message to plaintiffs attorneys to plead very openly when drafting complaints in similar cases.

“Mr. Johnson wouldn’t have gone after him but for the unpaid fare,” Riegel said. “To me, there’s no question that Mr. Johnson was acting in his employer’s interest.”

The case stems from an August 2011 incident in which Spitsin attempted to flee a convenience store that he had entered, ostensibly to withdraw funds from an ATM to pay for the cab fare, Wecht said. After a bystander tackled and restrained Spitsin, Johnson repeatedly kicked and punched Spitsin in the face. Spitsin was taken to a nearby hospital, and a scan revealed a hairline jaw fracture, Wecht said.

Spitsin made a claim against WGM Transportation on a theory of respondeat superior, which allows a master to be liable for acts of a servant committed during the course of employment. Spitsin noted that the on-duty cab driver assaulted him in an effort to recover the cab fare.

WGM Transportation filed preliminary objections, arguing that the conduct was outside the scope of employment, and the trial court dismissed the claim.

The trial court found the state Supreme Court’s 1952 case Howard v. Zaney persuasive in dismissing the claim.

In Howard, a bartender shot a regular customer who had “made some passes” at a female customer, Wecht said. The trial court vacated a jury’s verdict, finding that the conduct was so outrageous that vicarious liability could not be applied. The trial court found that although the bartender had been allowed to use all “reasonable” means to maintain order, the use of force was so excessive it was without reason.

According to Wecht, the trial court noted that part of Johnson’s employment is collecting money from customers, but ultimately said “we cannot say that punching and kicking customers is a reasonable method of collecting cab fare.”

Wecht noted that none of the cited case law involved assaults against a restrained victim, and no cases were decided as a matter of law at the preliminary objections stage. However, he said, case law indicated that since the adoption of aspects of the Restatement (Second) of Agency, the degree of exposure for rogue employees had diminished in Pennsylvania.

Johnson’s conduct, Wecht said, fell between the extremes of the conduct in Howard and the conduct in the 1957 Superior Court case Straiton v. Rosinsky, which involved a movie theatre usher who struck a 12-year-old with a flash light after the child wouldn’t comply with the usher’s orders.

The evidence in Spitsin’s case, Wecht said, showed the force could not have served WGM’s purpose, and that even if discovery showed WGM had told Johnson to persist when necessary to collect fares, the action was still “utterly excessive and unnecessary under the circumstances.”

“Ultimately, unless WGM explicitly instructed its drivers to attack restrained and vulnerable passengers who refused to surrender their fares, Johnson’s behavior clearly was ‘excessive and so dangerous as to be totally without responsibility of reason,’” Wecht said.

Riegel said he felt the case at least should have been allowed past the preliminary objection stage.

“The whole basis on which to grant preliminary objections is when a case is clear and free from doubt,” Riegel said. “In my opinion, if you have to take 16 pages to explain something, it’s not free and clear from doubt.”

Stroudsburg attorney Christie E. Bower, who represented WGM, did not return a call for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 16-page opinion in Spitsin v. WGM Transportation, PICS No. 14-1216, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •