REYES vs WALMART INC

Denied. Plaintiff has shown that there exists a triable issue of material fact as to whether the incident occurred within Irizarry’s scope of employment. The existence of a single material fact issue defeats an entire motion for summary judgment. (Cal. Rules of Court, rule 3.1350(a)(2) Hour Fitness v. Superior Court (1998) 66 Cal. App. 4th 1199, 1215.) Determination of whether an employee’s actions are within the scope of employment is a trial issue of fact when conflicting evidence has been presented. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992, 1004-1005; Perez v. Van Groningen & Sons (1986) 41 Cal. 3d 962, 968.) On one hand, it is startling event that might be beyond scope of employment, for an employee to assault a customer, but on the other hand, the risk may not completely absent when all the circumstances surrounding the event are considered. For example, a court has held it was a triable factual issue whether a retail employer could be liable for a........