In our view, Supreme Court properly concluded that throwing a full bag of heavy items at an unsuspecting customer’s face as a ‘joke’ is not commonly done by a cashier and, indeed, substantially departs from a cashier’s normal methods of performance.” —Mercure, Judge 

Facts: After an hour of shopping at a Walmart store, which is owned by Wal-Mart Stores, Inc. (Walmart), Michael Burlarley and his wife proceeded to the checkout at the store. The cashier, joking with the couple in an effort to make her work shift “go a little faster,” pretended to ring up items for vastly more than their price and threw various items at Michael. Michael, not amused, told her to stop, and the cashier initially complied. When Michael turned away, however, the cashier threw a bag containing a pair of shoes and shampoo at him. Michael was struck in the face. Michael sued Wal-Mart Stores, Inc., to recover damages. Walmart filed a motion for summary judgment, alleging that the cashier’s actions were personally motivated and that Walmart was not liable under the state’s motivation test. The trial court granted summary judgment to Walmart. Michael appealed. 

Issue: Is Walmart vicariously liable for the personally motivated acts of its cashier? 

Language of the Court: In our view, the court properly concluded that throwing a full bag of heavy items at an unsuspecting customer’s face as a “joke” is not commonly done by a cashier and, indeed, substantially departs from a cashier’s normal methods of performance. Moreover, the cashier’s actions arose not from any work-related motivation, but rather her desire to pass the time and relieve mounting frustration with her job. 

Decision: Applying the motivation test, the appellate court held that Walmart was not vicariously liable for the intentional tort of its cashier. The appellate court affirmed the trial court’s grant of summary judgment in favor of Walmart. 

Ethics Questions: Was it ethical for Walmart to deny liability for its employee’s actions in this case? If the court applied the work-related test, would the outcome of the case be different?