Boykin v. District of Columbia

• Decision Date: 26 November 1984
• Docket Number: No. 83-39.,83-39.
• Citation: 484 A.2d 560
• Parties: Vernadine BOYKIN, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

484 A.2d 560

Vernadine BOYKIN, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 83-39.

District of Columbia Court of Appeals.

Argued June 6, 1984.

Decided November 26, 1984.

Roderic L. Woodson, Washington, D.C., for appellant.

Edward E. Schwab, Asst. Corp. Counsel, Washington, D.C., with whom Inez Smith Reid, Corp. Counsel, John H. Suda, Principal Deputy Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for appellee.

Before NEBEKER, BELSON and TERRY, Associate Judges.

BELSON, Associate Judge:

This case arises out of a sexual assault on a student by an employee of the District of Columbia public schools during the school day and in a school building. The primary question on appeal is whether, as a matter of law, the employee's tortious conduct was outside the scope of his employment. We hold that it was and affirm the trial court's grant of summary judgment in favor of the District of Columbia.

The underlying facts are essentially undisputed. Valerie Boykin was a 12-year-old student in a special program at Jackson Elementary School. Due to birth defects, Valerie was deaf, blind and mute. Maurice Boyd, himself blind, was Field Coordinator of the Deaf/Blind Program in which Valerie was enrolled. He was responsible for coordinating all services in the District related to the identification, assessment, and medical and educational programming for deaf/blind children. Boyd's duties also included training blind students to avoid walking into obstacles and helping to calm down students who were misbehaving in class.

Valerie was one of the students whom Boyd on occasion had taken for such walks. He did so on February 1, 1977, after the lunch period. At that time, a school custodian observed Boyd sexually assaulting Valerie in the school cafeteria. As a result of that incident, Boyd resigned from the school system and pleaded guilty to a criminal charge of assault.

A civil suit was filed on Valerie's behalf against Boyd and the District of Columbia. On March 3, 1980, a default was entered against Boyd, subject to ex parte proof. Valerie subsequently died, but the action against the District was maintained by her mother, Vernadine Boykin, as Valerie's legal representative. Boykin contended that the District was liable for damages either vicariously, based on the theory of respondeat superior, or directly, for negligence in hiring or supervising Boyd. The trial court, concluding that there was no genuine issue of material fact, granted the District of Columbia's motion for summary judgment. This appeal followed.¹

Under the doctrine of respondent, superior, an employer may be held liable for the acts of his employees committed within the scope of their employment. Penn Central Transportation Co. v. Reddick, 398 A.2d 27, 29 (D.C. 1979). As a general rule, whether an employee is acting "within the scope of his employment" is a question of fact for the jury. It becomes a question of law for the court, however, if there is not sufficient evidence from which a reasonable juror could conclude that the action was within the scope of the employment. Johnson v. Weinberg, 434 A.2d 404, 408-09 (D.C. 1981); Penn Central Transportation Co., supra, 398 A.2d at 31-32; Meyers v. National Detective Agency, Inc., 281 A.2d 435, 437 (D.C. 1971); Jordan v. Medley, 228 U.S. App. D.C. 425, 429, 711 F.2d 211, 215 (1983).

In Penn Central Transportation Co., supra, 398 A.2d at 32, this court held as a matter of law that a railroad employee's assault on a taxi driver was outside the scope of his employment because "his conduct was in no sense, either wholly or partially in furtherance of [the railroad's] business." The employee in that case had served as brakeman on the train from Alexandria, Virginia, to New Jersey. The next day he rode a train back to Union Station in Washington, receiving full pay for traveling as a passenger. Upon arriving at the station the employee sought to hire a taxi to return to Alexandria. He became involved in a dispute with the driver whom he approached, apparently over the driver's desire to use the station restroom before taking the employee to his destination. The employee became enraged and kicked the driver with his steel-toed railman's boots. This court observed that it was unnecessary to decide whether the employee was "on duty" at the time of the assault, and concluded:

The violent and unprovoked nature of [the employee's] attack indeed suggests a personal as distinguished from business-related motive. Further, the altercation between [the taxi driver] and [the employee] was neither a direct outgrowth of the employee's instructions or job assignment, nor an integral part of the employer's business activity, interests or objectives. There is nothing in the business of running a railroad that makes it likely that an assault will occur between a railroad brakeman and a taxicab driver over the celerity with which the latter will provide a taxicab ride to the former.

Id. The employee's assault was in no degree committed to serve the railroad's interests, the court held. Rather, it was done "solely for the accomplishment of the independent malicious or mischievous purposes of the servant." Id. (quoting Great A & P Tea Co. v. Aveilhe, 116 A.2d 162, 165 (D.C. 1955)).

We think the reasoning of Penn Central v. Reddick is applicable to this case. The sexual attack by Boyd on Valerie was unprovoked. It certainly was not a direct outgrowth of Boyd's instructions or job assignment, nor was it an integral part of the school's activities, interests or objectives. Boyd's assault was in no degree committed to serve the school's interest, but rather appears to have been done solely for the accomplishment of Boyd's independent, malicious, mischievous and selfish purposes.

Appellant Boykin would have us hold that the assault was a direct outgrowth of Boyd's assignment because that assignment necessarily included some physical contact with Valerie. She notes that a deaf, blind and mute child can be taught only through the sense of touch. The fact that physical touching was necessarily a part of the teacher-student relationship made it foreseeable that sexual assaults could occur, she argues. We reject this connection as too attenuated. We do not believe that a sexual assault may be deemed a direct outgrowth of a school official's authorization to take a student by the hand or arm in guiding her past obstacles in the building.

In that regard, we conclude that this case is distinguishable from Johnson v. Weinberg, supra, 434 A.2d 404, and Lyon v. Carey, 174 U.S.App.D.C. 422, 533 F.2d 649 (1976), on which Boykin relies. Johnson v. Weinberg involved a shooting of a laundromat patron by an employee of the laundromat. The patron, who had deposited his shirts in a machine and then left, returned to find his shirts missing. The patron questioned the employee about the shirts intermittently over the course of several hours. Finally, just as the patron appeared to have abandoned the subject and was leaving, the employee drew a gun and shot him. The trial court directed a verdict in favor of the laundromat owner, holding that the employee's action was outside the scope of employment. This court reversed, holding that there was sufficient evidence from which a reasonable person could find that the shooting was "the outgrowth of a job-related controversy." 434 A.2d at 409. We noted that, in the interest of his employer, the employee would sometimes remove clothes from the machines so that empty machines would be available for other patrons. This made it likely that the employee would be confronted if a patron who had deposited his laundry was later unable to find it. Further, there was no evidence that the employee and the patron had had previous dealings that would indicate that the tort was personal. Thus, we concluded, "[t]he assault arose out of the transaction which initially brought [the patron] to the premises (to launder shirts) and was triggered by a dispute over the conduct of the employer's business (missing shirts)." Id.²

We think that Johnson v. Weinberg approaches the outer limits of the liability that may be imposed under respondeat superior. See RESTATEMENT (SECOND) OF AGENCY § 245 comment f (1958) ("the fact that the servant acts in an outrageous manner or inflicts a punishment out of all proportion to the necessities of his master's business is evidence indicating that the servant has departed from the scope of employment in performing the act"). We decline to extend its reach to cover the facts of this case. The sexual assault here arose out of Boyd's assignment only in the sense that Boyd's walks with the student afforded him the opportunity to pursue his personal adventure. This is insufficient to make the District vicariously liable for Boyd's act. See Bozarth v. Harper Creek Board of Education, 94 Mich.App. 351, 355, 288 N.W.2d 424, 426 (1979) (as a matter of law, a homosexual assault by a teacher on a student is outside the scope of the teacher's employment; "[t]he mere fact that an employee's employment situation may offer an opportunity for tortious activity does not make the employer liable to the victim of that activity"); Gambling v. Cornish, 426 F.Supp. 1153, 1155 (N.D.Ill. 1977) (as a matter of law, rape of woman by police officers who were able to retain custody of her because of their official status was outside the scope of employment).

Lyon v. Carey, supra, 174 U.S.App.D.C. 422, 533 F.2d 649 (1976), is distinguishable along similar lines. In that case, a young man employed by a trucking company to deliver a mattress raped and otherwise assaulted the woman to whom the delivery was to be made. The evidence showed that in the course of the delivery a dispute arose as to whether the mattress should be brought upstairs and whether payment of the C.O.D. payment balance should be by check or by cash. The Circuit Court held that "[a]lthough the...