Birkner v. Salt Lake County

Decision Date22 March 1989
Docket NumberNo. 19966,19966
Citation771 P.2d 1053
PartiesCynthia BIRKNER, Plaintiff, Appellee, and Cross-Appellant, v. SALT LAKE COUNTY, Defendant and Appellant, and Michael Flowers, an individual, Defendant and Appellee.
CourtUtah Supreme Court

David E. Yocum, Patricia J. Marlowe, Salt Lake City, for defendant and appellant Salt Lake County.

Phillip S. Ferguson, Salt Lake City, for defendant and appellee Flowers.

R. Scott Berry, Salt Lake City, for plaintiff, appellee, and cross-appellant.

STEWART, Justice:

This is an appeal and a cross-appeal from a judgment for damages based on the sexual misconduct of a Salt Lake County employee, Michael Flowers, a licensed social worker. On the principal appeal, the County contends that Flowers' conduct was outside the scope of his employment and that the County is not liable for his acts under the doctrine of respondeat superior. The County also appeals the trial court's judgment requiring it to indemnify Flowers for the damages awarded against him. The plaintiff, Cynthia Birkner, cross-appeals. She contends that the trial court erred in finding her comparatively negligent and reducing the award of damages in her favor.


Birkner and her ten-year-old son arrived in Salt Lake City in late November, 1981. For several weeks, she unsuccessfully searched for work and permanent living quarters. In desperation, she dialed the crisis line maintained by Salt Lake County's Intensive Treatment Unit (hereafter "ITU"), a county mental health facility, to find help in sending her son to friends in California. The ITU typically provides residential treatment, day treatment, hospital evaluation, social support, and crisis intervention. The defendant, Michael Flowers, was employed as a crisis worker at the ITU. He took the call and referred Birkner to the Division of Children's Services, which she called. Flowers, worried about Birkner's state of mind, made a home visit to her and persuaded her and her son to come to the ITU for help. During the next six weeks, Birkner and her son continued to receive help from the ITU and from Flowers. Birkner spent a number of nights at the ITU and attended several counseling sessions with Flowers. Flowers also met Birkner several times outside the ITU.

On January 18, 1982, Birkner went to the ITU to see Flowers, and prior to the commencement of a therapy session, Birkner sat on Flowers' lap and kissed him. At the completion of therapy, they kissed again, and Flowers fondled Birkner's breasts. Realizing that his actions were inappropriate, Flowers went to find a co-worker to stay with Birkner. In his absence, Birkner swallowed several anti-depressant capsules. She was briefly hospitalized as a result. The next day, January 19, 1982, Flowers claims he met twice with Birkner at the ITU and discussed what had occurred the day before. During the first meeting, he told her he did not think that he should have engaged in a physical relationship with her. Later that day, they met again, and after discussing Birkner's feelings, they again engaged in conduct that was inappropriate for a social worker under the circumstances.

Flowers did not inform any ITU staff members about his sexual activities with Birkner, but on January 20, 1982, he agreed when asked by his supervisors if she should be reassigned. Birkner did not complain about the sexual activities until the evening of January 20, 1982, when she told several ITU staff members.

Birkner thereafter left the ITU and was taken to L.D.S. Hospital, where she remained for twenty days. While at the hospital, Birkner underwent psychiatric treatment and was diagnosed as having a multiple personality disorder, which was caused by sexual abuse she had suffered as a child.

Birkner filed an action against Flowers and Salt Lake County. Her complaint included claims of sexual battery and negligence against Flowers and claims of negligent supervision and vicarious liability on the part of the County. Flowers requested Salt Lake County to defend him. The County asserts that he did not do so within the ten-day period required by Utah Code Ann. § 63-48-3(1) (1978) (repealed 1983). The County agreed to defend him under a reservation of right based on its contention that his conduct was outside the scope of his employment. Thereafter, Flowers' own malpractice insurer retained counsel to represent him.

At trial, Flowers admitted that he had kissed and fondled Birkner and that his conduct fell below the standard of care exercised by social workers in the community. Neither Birkner nor Flowers contended that their sexual interaction was part of therapy. The trial court determined, as a matter of law, that Flowers was guilty of negligence with respect to his treatment of the plaintiff. The basis of this ruling was an admission by Flowers. The issue of sexual battery was omitted from the jury instructions.

By special verdicts, the jury found Flowers 50 percent negligent, the County 40 percent negligent, and Birkner 10 percent negligent and awarded Birkner $13,999.83 less 10 percent for her own negligence. During the jury's deliberation, the County moved for a directed verdict on the ground that it was not liable for Flowers' conduct under the doctrine of respondeat superior. The trial court denied the County's motion and granted Flowers' motion for summary judgment on his cross-claim for indemnification. After the jury returned its verdict, the County moved for a judgment notwithstanding the verdict. The motion was denied.


We consider first the County's argument that the trial court should have granted its motion for a judgment notwithstanding the verdict on the basis that Flowers' sexual misconduct was outside the scope of his employment and that the County was therefore not liable under the doctrine of respondeat superior. In the factual context of this case, the issue is whether improper sexual contact between a therapist and a patient falls within the scope of the therapist's employment.

W. Keeton, Prosser and Keeton on the Law of Torts § 70, at 502 (5th ed. 1984) states the basic function that the term "scope of employment" serves in respondeat superior cases:

It [scope of employment] refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.

As in the case of the existence of the relation itself, many factors enter into the question: the time, place and purpose of the act, and its similarity to what is authorized; whether it is one commonly done by such servants; the extent of departure from normal methods; the previous relations between the parties; whether the master had reason to expect that such an act would be done; and many other considerations.... [I]n general the servant's conduct is within the scope of his employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the master.

(Footnotes omitted.)

Utah cases have tended to focus on three criteria for determining when the conduct of an employee falls within the scope of employment. 1 First, an employee's conduct must be of the general kind the employee is employed to perform. See Keller v. Gunn Supply Co., 62 Utah 501, 220 P. 1063 (1923) (citing Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A. 653 (1907)); Restatement (Second) of Agency § 228(1)(a) (1958). That means that an employee's acts or conduct must be generally directed toward the accomplishment of objectives within the scope of the employee's duties and authority, or reasonably incidental thereto. In other words, the employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor. Keller, 62 Utah at 505, 220 P. at 1064.

Second, the employee's conduct must occur within the hours of the employee's work and the ordinary spatial boundaries of the employment. See Cannon v. Goodyear Tire & Rubber Co., 60 Utah 346, 208 P. 519 (1922); Restatement (Second) of Agency § 228(1)(b).

Third, the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest. See Stone v. Hurst Lumber Co., 15 Utah 2d 49, 51, 386 P.2d 910, 911 (1963); Combes v. Montgomery Ward & Co., 119 Utah 407, 411, 228 P.2d 272, 274 (1951) ("within the scope of furthering [employer's] purpose"); Barney v. Jewel Tea Co., 104 Utah 292, 296, 139 P.2d 878, 879 (1943). Cf. Carter v. Bessey, 97 Utah 427, 431, 93 P.2d 490, 492 (1939) (employer not liable when employee's conduct intended "for purposes other than the master's business"). Thus, as Combes and Carter make clear, an employee's purpose or intent, however misguided in its means, must be to further the employer's business interests. 2 See also Prosser and Keeton § 70, at 503-05.

If the employee acts "from purely personal motives ... in no way connected with the employer's interests" or if the conduct is "unprovoked, highly unusual, and quite outrageous," then the master is not liable. Id. at 506. Prosser and Keeton illustrates the latter point by reference to various cases including three sexual assault cases. Id. at 506 n. 48. For purposes of liability under the doctrine of respondeat superior, it is not generally relevant whether the sexual misconduct is categorized as an intentional or negligent tort. See Cosgrove v. Lawrence, 214 N.J.Super. 670, 520 A.2d 844 (Law Div.1986) (initial physical relationship between therapist and patient began as a "mishandling" of the "transference" phenomenon), aff'd, 215 N.J.Super. 561, 522 A.2d 483 (App.Div.1987). But see Marston v. Minneapolis Clinic of Psychiatry and Neurology, Ltd., 329 N.W.2d 306 (Minn.1983).

As a general rule, the issue of whether an...

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