Delivery Worker’s PTSD Claim Against Five Guys and Maintenance Firm to Go to Jury

A food delivery worker who encountered two weapon-wielding maintenance workers surprised by his presence in a Five Guys hamburger eatery can bring negligence claims against the restaurant and the maintenance company over his mental trauma.

The federal district court for New Hampshire has found that the delivery worker’s evidence of post-traumatic stress disorder (PTSD) and his arguments linking his condition to the events of that day are strong enough for a jury to decide whether negligence was involved, even though the worker was not physically harmed.

Judge Paul J. Barbadoro declined the restaurant and maintenance firms’ bids for summary judgment on the claims of direct and vicarious liability.

Alieu Sheriff, a food delivery worker, was accosted by two armed maintenance workers inside a Five Guys restaurant in Tilton, New Hampshire while making a scheduled early morning delivery. Brandishing a gun and knife, they encountered Sheriff outside the kitchen doors. They quickly recognized Sheriff’s delivery uniform, lowered their weapons, and returned to their repairs. They made no verbal statements or threats to Sheriff, and Sheriff was not physically injured.

Sheriff claims he suffered severe emotional distress and was unable to work for a significant amount of time thereafter. He experienced anxiety, nightmares, and intrusive thoughts, and was subsequently diagnosed with post-traumatic stress disorder (PTSD).

Sheriff filed a count of negligence against the franchisee of the Tilton Five Guys restaurant, Four Cousins Burgers & Fries of NH, LLC, and the employer of the maintenance workers, Gellfam Management Corp.

Sheriff argues that the two firms are directly liable for their own negligence and vicariously liable for the negligence of the maintenance workers. He asserts that the defendants are directly liable because they failed to keep the premises “free of hazards” and “warn those entering the premises” of those hazards. He also alleges that they negligently “supervised, trained, and instructed” their employees by failing to “make them aware of scheduled visits by vendors,” such as Sheriff, or “preventing them from alarming or harming” lawful entrants.

His vicarious liability claim is based on his contention that the maintenance workers, while acting for their employers, failed to “take reasonable steps to investigate” the disturbance that Sheriff caused when he entered the restaurant and improperly brandished their weapons when they encountered him.

Four Cousins and Gellfam contend that they were entitled to summary judgment. First, they argue that Sheriff cannot prove the causation and physical symptom components of his claim because his expert disclosures were untimely and inadequate. Second, they contend that they did not owe Sheriff a duty of care because they “could not have reasonably foreseen” that their conduct would lead to Sheriff’s injuries. Finally, they assert that Sheriff’s vicarious liability claim fails because he cannot prove that the maintenance workers were acting within the scope of their employment when they confronted Sheriff.

Sheriff won each argument.

The judge found that even though Sheriff’s filing describing his medical testimony was a few weeks late, the defendants were not harmed by the delay.

The judge noted that New Hampshire courts have recognized certain “painful mental experiences” as physical symptoms when they have “lasting effects” and are “susceptible to some form of objective medical determination.” He found that Sheriff provided medical information on his PTSD diagnosis, which a jury could find sufficiently observable to constitute a physical symptom.

The judge further noted that Sheriff’s medical records include opinions by his treating medical providers relating his PTSD and associated symptoms that “resulted from his coming upon an armed robbery (gun and machete) when he was doing a delivery.” Based on this evidence, a jury could reasonably conclude that Sheriff’s PTSD was caused by the encounter.

The defendants claim that Sheriff’s encounter with the maintenance workers was “incredibly unforeseeable.” They cite Gellfam’s weapons policy that restricts the use of onsite weapons to those expressly authorized in writing and did not include the maintenance workers to support their contention that Sheriff’s injury was not foreseeable.

Sheriff contends that the encounter was foreseeable due to the “direct contact” between himself and defendants’ employees.

The court found that it is “entirely foreseeable” that drawing weapons on an unsuspecting person may cause emotional distress and psychological trauma. A “real and substantial risk of injury does not become unforeseeable merely because an employer adopts a policy that prohibits conduct that contributes to the plaintiff’s injuries,” the court noted.

What matters, the court said, are the circumstances that led to Sheriff’s encounter with the two maintenance workers. The encounter occurred during the early morning hours inside a locked restaurant. The maintenance workers were assigned to work in the empty building without any advance notice that Sheriff would be using a key he had been given to him to enter the building. Given these circumstances, the court said it was foreseeable that the maintenance workers might feel the need to take precautions to protect themselves should they encounter an unknown person in a restaurant they expected would be unoccupied.

Also, the court continued, there was a real and foreseeable risk that someone in Sheriff’s position could face real injury if he was mistaken for an intruder. Whether their employer’s supervision was adequate is a question for the jury, but the risk that he would be injured in the way he claims was foreseeable.

Finally, the judge recognized that whether an employee is acting within the scope of his employment when he overreacts to a perceived threat to his personal safety while performing his employers’ business is generally also a jury question.