The opinion of the court was delivered by: Stengel, J.
Edward Harris was "pistol-whipped" and assaulted by Michael Henry, a KFC employee, when he hesitated while placing his order for the chicken special at a KFC in Philadelphia. Harris filed this lawsuit alleging that KFC is liable for Henry's actions under the doctrine of respondeat superior and that KFC failed to train, supervise and investigate Henry or warn Harris. KFC contends Henry's actions were outrageous and, not surprisingly, outside the scope of his employment. KFC denies any negligence or knowledge that its employee possessed a weapon. KFC filed a motion for summary judgment, which, for the following reasons, I will grant.
A. Henry's Assault of Harris
On October 3, 2007, between approximately 8:00 and 9:00 p.m., Harris drove to a KFC restaurant located at 716 Adams Avenue in Philadelphia, Pennsylvania to take advantage of a chicken special they were running at that time. (Harris Dep. 10:7-11:4, May 17, 2010.) KFC offered a bucket of ten pieces of chicken, biscuits, and two side orders for about eight dollars. (Id. at 10:18-21.) Harris placed his order for the chicken with one employee but hesitated on the side orders. (Id. at 11:23-24.) A second KFC employee, Michael Henry,*fn1 told Harris to "hurry up." (Harris Dep. at 12:1-2, May 17, 2010.) Because Henry was not the cashier that was taking Harris' order, Harris replied, "No, I am not dealing with you." (Id. at 12:6-9.)
Apparently agitated by the customer's response, Henry enounced, "Well, do you want the fucking chicken or not?" (Id. at 12:10-11.) The original employee helping Harris stepped back at this point with a look like "I'm out of it," according to Harris' deposition testimony. (Id. at 12:21, 14:10-11.) Harris was taken aback by the employee's rude statement and hesitated. Harris then told Henry that he did not want to order if he had to deal with him. (Id. at 12:22-23.) Henry responded by asking Harris if he thought he was a "tough guy" and muttered, "I will kick your ass." (Id. at 12:24-13:2.) Henry then "showed" Harris a gun, which he held "under the countertop." (Id. at 13:2-3.) Harris put his hands up and said, "What? You going to shoot me over a bucket of chicken?" Henry repeatedly said, "I will kick your ass." (Id. at 15:7-10.)
At this point, another KFC employee yelled at Henry that he could not "do it like that, not here." (Id. at 15:16-19.) With Henry distracted, Harris used this moment as his opportunity to leave the store. (Id. at 16:1-3.) Harris headed for the double doors to leave the KFC. (Id. at 16:1-9.) Harris went through the first door, but as he went to open the second door, he heard scuffling behind him and turned around. As he turned he was attacked by Henry who struck him with the gun in the left side of his face. (Id. at 16:6-8, 18:18-23.) Harris lost consciousness, sustained a concussion, and was transported by ambulance to the emergency room for treatment of injuries, including eight stitches on his lip, "rattled" teeth, a black eye, a swollen jaw and a fractured wrist. (Id. at 27:2-6, 27:14, 30:1-4.)
B. KFC's Employment Practices
At the time Henry was hired in 2007, KFC required potential employees to fill out a paper application and questionnaire. (Frazier Dep. 8:12-14, Aug. 8, 2011.) The application asked whether the applicant had a prior felony charge but background checks were not performed unless the open position was in management. (Id. at 8:24-9-1.) Henry's position -- "team member"*fn2 -- did not fall into the category of management and thus a background check was not performed. (Id. at 10:10-20.)
KFC has policies and procedures for managers and team members to follow in their day-to-day employment. (Id. at 14:20-18:3.) One such policy is a ban on weapons at work. (Id. at 13:22-24, 16:23-17:1.) If an employee brings in a gun or weapon in violation of this policy, a manager is required to fire the employee. (Id. at 14:5-6.) An employee can inform KFC of a violation using an anonymous 1-800 number available for such disclosures. (Id. at 17:5-13.) KFC's policies are outlined in the "Code of Conduct," which each employee signs to demonstrate his or her understanding of the proper rules and procedures to follow while working at KFC. (Id. at 15:1-6.) KFC does not expect an employee to ever have or use a weapon while working.*fn3 (Id. at 16:16-22.)
C. Henry's Prior Criminal History
Prior to the incident at KFC, Henry was arrested on a few occasions and convicted of two criminal charges.*fn4 (See Doc. No. 23-2 at Ex. B*fn5 , pgs. 1-26.) On October 17, 2001, Henry was arrested and charged with theft by receiving stolen property, attempted theft by unlawful taking or disposition, possessing instruments of crime, prohibited offensive weapons, and unauthorized use of an automobile and other vehicles. (Id. at p. 22.) On these charges, Henry was found guilty of theft by receiving stolen property. (Id.)
On December 18, 2002, Henry was arrested and charged with theft by unlawful taking or disposition, unauthorized use of an automobile and other vehicles, theft by receiving stolen property, and criminal mischief. (Id. at p. 18.) All of these charges were ultimately dismissed. (Id. at p. 19.) On February 18, 2003, Henry was arrested and charged with theft by unlawful taking or disposition, theft by receiving stolen property, and unauthorized use of an automobile and other vehicles. (Id. at p. 9.) On these charges, Henry was found guilty of the unauthorized use of an automobile and other vehicles. (Id.)
Harris initiated a lawsuit against KFC in the Court of Common Pleas of Philadelphia County, Pennsylvania. Henry alleges that KFC was negligent in failing to properly and adequately investigate its employees before hiring, train employees, warn the plaintiff, supervise its employees, police its premises, and KFC permitted Henry to have access to a weapon. (Compl. at 2.) Harris' wife, Marjorie, alleges loss of ...