kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." Id. Further, where the nature of the incident involves an intentional tort, the Court held that it was "irrelevant" whether the defendant was "on duty" at the time of the incident. Id. at 438.
"As a general rule, whether an employee is acting 'within the scope of his employment' is a question of fact for the jury. It becomes a question of law for the court, however, if there is not sufficient evidence from which a reasonable juror could conclude that the action was within the scope of the employment." Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C. App. 1984); Sigal Construction Corp. v. Stanbury, 586 A.2d 1204, 1217 (D.C. App. 1991); cf. Hoston v. Silbert, 220 U.S. App. D.C. 361, 681 F.2d 876, 879 (D.C. Cir. 1982) (scope of employment is "ultimately a legal question").
The difficulty in the instant case is that, unlike Coron and other scope of employment cases, there is a dispute of material fact: whether an assault and battery (a harmful touching or apprehension thereof) occurred at all. Notwithstanding the conflicting versions of the incident, however, it is determined as a matter of law that, under these circumstances and based on the allegations and the full pleadings, this case should be remanded to the local court.
The Court has no difficulty concluding that if plaintiff's version is correct to the extent that any physical contact occurred, there would be insufficient evidence to support a jury finding that Velten was acting within the scope of her employment. While her duties may have included going from one part of the office to another, touching a co-worker is not in furtherance of the Department of Veterans Affairs' interests. See Coron, 515 A.2d at 438.
This conclusion is bolstered by an examination of District of Columbia cases finding tortious conduct to be within the scope of employment. As example, in Hoston, the plaintiff alleged that his decedent had been beaten to death by a U.S. Marshal while in the marshal's custody. The Court of Appeals ruled that the allegation sufficiently connected the alleged tort with a purpose to serve the employer for a court to impose liability under respondeat superior. "A United States Marshal's duties -- escorting and supervising frequently hostile and potentially dangerous prisoners -- create a strong likelihood of violent confrontation in the course of which an officer could lose his temper and use tortiously excessive force." 681 F.2d at 880. No such circumstances exist in the instant case. Nor was the alleged incident "triggered by a dispute over the conduct of the employer's business," "foreseeable as being within the range of responsibilities entrusted to the employee," or "the outgrowth of a job-related controversy" as in Johnson v. Weinberg, 434 A.2d 404, 408-09 (D.C. App. 1981), where the Court found that it was for the jury to determine whether a laundromat employee acted in the scope of his employment when he shot a patron after a dispute.
See also Lyon v. Carey, 174 U.S. App. D.C. 422, 533 F.2d 649 (D.C. Cir. 1976) (scope question for jury where deliveryman assaulted a customer over a dispute concerning the form of payment; he was arguably furthering his employer's interest).
Because the incident could not have been "a direct outgrowth of [the employee's] instructions or job assignment," nor "an integral part of the [employer's] activities, interests or objectives," Boykin, 484 A.2d at 562, if an intentional act occurred at all, the Court concludes that Velten could not have been acting within the scope of her employment. If, as Velten asserts, the incident did not take place, the question of scope of employment does not arise because no tort could be said to have occurred at all.
Accordingly, the Court finds that the FTCA is not implicated here and will remand to the local court. See Hamrick, 931 F.2d at 1211-12; Nasuti, 906 F.2d at 814.
For the reasons expressed above, it is, therefore, hereby
ORDERED that plaintiff's motion is granted. It is
FURTHER ORDERED defendant's motion is denied. It is
FURTHER ORDERED that the United States is dismissed as the defendant in this matter, and Dolores Velten is substituted as the sole defendant. It is
FURTHER ORDERED that this case is remanded, pursuant to 28 U.S.C. § 1447(c), to the Superior Court for the District of Columbia.