Baker v. Saint Francis Hosp., 100,713.

• Decision Date: 20 December 2005
• Docket Number: No. 100,713.,100,713.
• Citation: 2005 OK 36,126 P.3d 602
• Parties: Lowell and Stella BAKER, as Parents and next friends of Summer Baker, a minor, Plaintiffs/Appellants, v. SAINT FRANCIS HOSPITAL, an Oklahoma corporation d/b/a Ave Maria Child Care, Defendant/Appellee.
• Court: Oklahoma Supreme Court

126 P.3d 602

2005 OK 36

Lowell and Stella BAKER, as Parents and next friends of Summer Baker, a minor, Plaintiffs/Appellants, v. SAINT FRANCIS HOSPITAL, an Oklahoma corporation d/b/a Ave Maria Child Care, Defendant/Appellee.

No. 100,713.

Supreme Court of Oklahoma.

December 20, 2005.

On Certiorari to the Court of Civil Appeals, Division No. 1.

¶ 0 Summer Baker, an infant, was injured at Ave Maria Child Care when an employee of the childcare provider allowed her to roll off a crib onto the floor and then intentionally struck the infant's head against a shelf at the childcare facility. The child's parents sued Saint Francis Hospital, appellee, which operated the facility. The hospital filed a motion for summary judgment contending the fall was not the proximate cause of any injuries to the infant and that the employee was not acting within the scope of her employment when she deliberately struck the infant's head against the shelf. The trial court granted the hospital's motion for summary judgment. The Court of Civil Appeals affirmed.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED AND REMANDED.

John F. McCormick, Jr., John L. Randolph, Jr., Harry A. Parrish, Pray, Walker, Jackman, Williamson & Marlar, Tulsa, OK, for appellants.

Timothy G. Best, Sean H. McKee, Matthew B. Free, Best & Sharp, Tulsa, OK, for appellee.

PER CURIAM:

¶ 1 The question before this Court is whether the trial court erred in granting summary judgment to the appellee, Saint Francis Hospital, d/b/a Ave Maria Child Care. We conclude the trial court erred and reverse and remand for a hearing on the merits.

I. FACTS AND PROCEDURE

¶ 2 The parties have agreed on the following facts. Ave Maria Child Care is a daycare facility that cares for children of employees of Saint Francis Hospital and its affiliates. The appellant, Stella Baker, was an employee of Laureate Psychiatric Clinic and Hospital, an affiliate of Saint Francis Hospital. On September 6, 1998, Amy Davis was employed at the daycare facility as a caregiver when Stella Baker left her two-month-old daughter, Summer, there. About 3:30 p.m., when Mrs. Baker arrived to pick up Summer, she heard her crying and noticed two small red marks on her right temple. Davis was Summer's regular caregiver at Ave Maria, and when Mrs. Baker inquired about the marks, Davis denied knowing how Summer received them.

¶ 3 A few hours later, when bathing Summer at home, Mrs. Baker noticed the right side of Summer's head was swelling. She called her pediatrician's office and was told to take her to the emergency room at Saint Francis Hospital. The physicians there determined that Summer had two bilateral depressed skull fractures and suffered traumatic brain injury.

¶ 4 The appellants allege that Davis allowed Summer to fall from her crib while changing a diaper. The parties agree that Davis intentionally struck Summer's head two times against the corner of a shelf at the daycare facility. The record includes a copy of the Findings of Fact and Acceptance of Plea dated and file-stamped September 14, 1999, showing that Davis pled guilty to injury to a minor child. She received a sentence according to a plea agreement of ten years, seven in custody and the remaining three out of custody. On that document Davis claims to have hit Summer's head against the shelf because Summer would not stop crying. The pertinent language from Davis contained in the Findings of Fact and Acceptance of Plea document is as follows: "I hit Summers (sic) head against the cubby; she was crying she wouldn't stop crying."¹

¶ 5 The Bakers sued Saint Francis Hospital alleging it was liable under the theory of respondeat superior for Davis's negligent and intentional acts. Both parties filed motions for summary judgment. The trial court denied the Bakers' motion and granted the hospital's. On appeal, the Court of Civil Appeals affirmed. We granted certiorari.

II. REVIEW OF SUMMARY PROCEEDINGS

¶ 6 Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Co-op. Ass'n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464. Because an order that grants summary relief disposes of legal issues, the review we conduct on appeal is de novo. Brown v. Nicholson, 1997 OK 32, ¶ 5 n.1; 935 P.2d 319, 321 n. 1; Manley v. Brown, 1999 OK 79, ¶ 22, n.30; 989 P.2d 448, 455 n.30. We must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact. See Perry v. Green, 1970 OK 70, 468 P.2d 483, 484 (Syllabus by the Court). From the underlying facts contained in such materials, all inferences and conclusions to be drawn must be viewed in a light most favorable to the party opposing the motion. Ross v. City of Shawnee, 1984 OK 43, ¶ 7, 683 P.2d 535, 536.

III. NEGLIGENCE

¶ 7 The appellants allege that Davis allowed Summer to roll off the crib onto the floor, which contributed to her injuries. The appellee asserts it is an uncontested fact that Summer's injuries could not have been caused by the fall described by the appellants. The appellee entered portions of a physician's deposition where he testified about the injuries likely from a fall. In response to the question: "Can you say to a hundred percent certainty, Doctor, that these fractures weren't caused by a fall?" the doctor responded, "I think without being there, nobody could say that with a hundred percent certainty." The doctor stated he believed that blows to the head were the plausible explanation for Summer's fractures rather than a fall from a crib.

¶ 8 The injuries to Summer did not include just the fractures but also traumatic brain injury. In exhibit A of "Defendant's Motion for Summary Judgment," offered by the appellee, the doctor's answers address the cause of the fractures, not the cause of the brain injury. The appellants' allegation is that "Summer suffered traumatic brain injury as a result of either, or both, the fall and having her head struck against the shelf." Since all inferences and conclusions to be drawn must be viewed in a light most favorable to the party opposing the motion, in this case the appellants, the issue remains in controversy; therefore, summary judgment on this issue is improper. Ross, 1984 OK 43, ¶ 7, 683 P.2d at 536.

IV. RESPONDEAT SUPERIOR LIABILITY FOR BATTERY

¶ 9 Davis intentionally struck Summer's head against a shelf at the daycare facility. The issue is whether her employer, the appellee, may be held liable in damages for this intentional wrongful act.

¶ 10 To hold an employer responsible for the tort of an employee, the tortious act must be committed in the course of the employment and within the scope of the employee's authority. Hill v. McQueen, 1951 OK 47, ¶¶ 3, 4, 230 P.2d 483, 484-485. As a general rule, an assault on a third person is not within the scope of an employee's authority. Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, ¶ 12, 867 P.2d 1241, 1245. The exception to the general rule is well established. An employer may be held responsible for the tort committed by the employee where the act is incidental to and done in furtherance of the business of the employer even though the servant or agent acted in excess of the authority or willfully or maliciously committed the wrongs. Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, ¶ 31, 21 P.2d 1, 7, quoting Mansfield v. Wm. J. Burns International Detective Agency, 102 Kan. 687, 171 P. 625 (1918). This is not to say that the commission of the tort was within the scope of the employee's authority, for no authority for such commission could be conferred, but where the employee was acting within the scope of authority to do the particular thing rightfully that was subsequently done in a wrongful manner. Ada-Konawa, 1932 OK 790, ¶ 32, 21 P.2d at 7, citing Bjorkman v. Atchison, T. & S. F. Ry. Co., 117 Kan. 420, 231 P. 1029, 1030 (1925), which quoted from Dixon v. Northern Pac. Ry. Co., 37 Wash. 310, 79 P. 943, 944 (1905). Rodebush summarized the exception to the general rule as applying where the act is "fairly and naturally incident to the business," and is done "while the servant was engaged upon the master's business and be done, although mistakenly or ill advisedly, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business." Rodebush, 1993 OK 160, ¶ 12, 867 P.2d at 1245, citing Russell-Locke Super-Service v. Vaughn, 1935 OK 90, ¶ 18, 40 P.2d 1090,1094 and Ada-Konawa, 1932 OK 790, ¶ 33, 21 P.2d at 7. Rodebush added that: "An employee's act is within the scope of employment if it is incident to some service being performed for the employer or arises out of an emotional response to actions being taken for the employer." Rodebush, 1993 OK 160, ¶ 12, 867 P.2d at 1245.

¶ 11 The appellee asserts, "It is self-evident that the act of smashing a child's head against a shelf does not accomplish the assigned work of caring for, protecting, and nurturing." Appellee's Answer to Appellants' Petition for Certiorari, p. 4. That mischaracterizes the law concerning liability of an employer for the tort of an employee. Where an employee of a daycare center is responsible for the care of infants, some type of stress-induced temporary loss of control over one's behavior (or other psychological malfunction) over a crying baby and/or babies and the act(s) of Davis in hitting Summer's head against a shelf (the cubby) arguably involve "an emotional response to actions being taken for the employer,"² if her motivation and purpose in doing so was, in whole or in part, an attempt to quiet the crying infant. Thus, the act(s) may have been an attempt to do a rightful...