Buck v. Blum

• Decision Date: 10 February 2004
• Docket Number: No. 14-03-00358-CV.,14-03-00358-CV.
• Citation: 130 S.W.3d 285
• Parties: Belinda BUCK, Appellant, v. Philip S. BLUM, Individually and d/b/a Houston Neurological Institute, and Kimberly E. Monday, Individually and d/b/a Houston Neurological Institute, Appellees.
• Court: Texas Court of Appeals

130 S.W.3d 285

Belinda BUCK, Appellant, v. Philip S. BLUM, Individually and d/b/a Houston Neurological Institute, and Kimberly E. Monday, Individually and d/b/a Houston Neurological Institute, Appellees.

No. 14-03-00358-CV.

Court of Appeals of Texas, Houston (14th Dist.).

February 10, 2004.

Juliet Katherine Stipeche, Jeffrey B. McClure and Michael C. Feehan, Houston, for Appellees.

Russell D. Weaver, Addison, for Appellant.

Panel consists of Chief Justice ADELE HEDGES and Justices ANDERSON and SEYMORE.

OPINION

ADELE HEDGES, Chief Justice.

Belinda Buck sued Dr. Albert Yen together with Dr. Philip Blum and Dr. Kimberly Monday, owners of Houston Neurological Institute, based on an assault and battery allegedly occurring during the course of a neurological examination. This appeal involves only her claims against the employers based on respondeat superior and negligence.¹ The trial court granted summary judgment against Buck's respondeat superior claim and dismissed her negligence claim with prejudice. We affirm.

Background

In her deposition, Buck testified that she went to HNI for a neurological examination that was conducted by Yen. She then stated

But the next thing I remember is [Yen] wanting to examine, with my hands behind my back, to examine the strength of my hands. He asked me to put— open my hands behind my back. Therefore, I did. He stepped to the side of me towards the angle here (indicating) where I could just barely see him. He put an object in my hand and asked me to squeeze. I did. It was a cold metal object. He did my left hand, my right hand. [¶] He said he wanted me to do it again. That's when he put his penis in my left hand and told me to squeeze.

Based on this alleged incident, Buck asserted claims against Yen and appellees. In response to her respondeat superior claim, appellees filed a motion for summary judgment asserting that Yen was not acting in the course and scope of his employment at the time of the alleged assault. In response to the negligence claim, appellees moved to dismiss for failure to file an expert report under the Texas Medical Liability and Insurance Improvement Act. Tex.Rev.Civ. Stat. Ann. art. 4590i (Vernon Supp.2003) (repealed 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.001-.507 (Vernon Supp.2004)). The trial court granted summary judgment against the respondeat superior claim and dismissed the negligence claim with prejudice. On appeal, Buck contends both that she presented proof Yen was acting in the course and scope of his employment and that appellees failed to present proof he was not. She further argues she was not required to file an expert report because her claim is not a "health care liability claim" under the Act.

Respondeat Superior

In her first issue, Buck contends that the trial court erred in granting summary judgment against her respondeat superior claim. In considering this issue, we utilize the normal standards of review for traditional summary judgments. See Tex.R. Civ. P. 166a; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant, as movant, is entitled to summary judgment if it (1) disproves at least one element of plaintiff's theory of recovery, or (2) pleads and conclusively establishes each essential element of an affirmative defense thereby rebutting the plaintiff's cause of action. Wilie v. Signature Geophysical Servs., Inc., 65 S.W.3d 355, 359 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). As a general rule, there is no duty to control the conduct of another. Ginther v. Domino's Pizza, Inc., 93 S.W.3d 300, 303 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (citing Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983)). However, an employer may be held liable for the tortious acts of an employee if the acts are within the course and scope of employment. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.1998). This requires proof that the employee is acting (1) within the general authority granted by the employer, (2) in furtherance of the employer's business, and (3) for the accomplishment of an object for which he is employed. See Mata v. Andrews Transp., Inc., 900 S.W.2d 363, 366 (Tex.App.-Houston [14th Dist.] 1995, no writ).

The typical respondeat superior claim involves an allegation of negligence on the part of the employee. See, e.g., Sampson, 969 S.W.2d 945 (concerning allegations of negligent medical treatment); Mata, 900 S.W.2d 363 (concerning alleged negligence resulting in car accident). The present case, however, involves an allegation of assault, an intentional tort. As the Texas Supreme Court has observed:

It is not ordinarily within the scope of a servant's authority to commit an assault on a third person.... Usually assault is the expression of personal animosity and is not for the purpose of carrying out the master's business. [¶] "[W]hen the servant turns aside, for however short a time, from the prosecution of the master's work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone."

Texas & P. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239, 241 (1952) (quoting Galveston, H. & S.A. Ry. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073 (1906)).² Additionally, courts consider whether the assault was so connected with and immediately arising out of authorized employment tasks as to merge the task and the assaultive conduct into one indivisible tort imputed to the employer. See, e.g., Durand v. Moore, 879 S.W.2d 196, 199, 201 (Tex. App.-Houston [1st Dist.] 1994, no writ) (citing Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 882 (1948)).³

In the present case, Buck contends both that appellees failed to present summary judgment proof establishing that Yen's actions were not in the course and scope of his employment and that she provided proof that his actions were in the course and scope. For proof that Yen was not acting in the course and scope of his employment, we need look no further than Buck's own allegations. A plaintiff may indeed plead herself out of court if she alleges facts that negate her cause of action. See, e.g., Saenz v. Family Sec. Ins. Co. of Am., 786 S.W.2d 110, 111 (Tex.App.-San Antonio 1990, writ denied) (holding plaintiff's respondeat superior pleading negated course and scope element where factual allegations demonstrated employee was not acting in furtherance of his duties when he committed fraud).

Here, Buck pleaded that during a neurological examination, Yen placed his penis in her hand instead of using the metal weight he had used previously. Buck contends that since the procedure itself was part of the examination, and thus within the scope of Yen's authority, the use of Yen's body part was simply an inappropriate exercise of the delegated duty. While it is undisputed Yen's alleged action was inappropriate, it cannot be fathomed that the action was in furtherance of the employer's business or for the accomplishment of an object for which he was employed. See Mata, 900 S.W.2d at 366. At the very moment Yen placed his body part in her hand (assuming he did), he was acting in his own prurient interest and ceased to be acting for the employer. The neurological examination at that point was only a pretense or a means for Yen's inappropriate personal gratification. Nor can it be said the assault was so connected with and immediately arising out of Yen's employment tasks as to merge the activities into one indivisible tort. See Durand, 879 S.W.2d at 199, 201. A club bouncer has an inherently confrontational job that may well require physical force; whereas, neurology is not an inherently sexual profession and never requires the action allegedly perpetrated by Yen. As a matter of law, Yen's alleged conduct did not arise out of the course and scope of his employment, and, thus, his employers cannot be held liable under respondeat superior.

Buck additionally contends she presented evidence, in the form of Yen's answers to interrogatories, to show he was acting in the course and scope of his employment. However, a party's answers to interrogatories can only be used against that party and not against another party, including a codefendant. See Tex.R. Civ. P. 197.3. Furthermore, Yen denied what Buck accused him of doing.⁴ Therefore, his statement in the interrogatory answers that he was acting in the course and scope does not suggest that the alleged inappropriate touching was in the course and scope. Thus, we find as a matter of law that Buck has failed to present proof sufficient to raise a fact issue. Accordingly, the trial court did not err in granting summary judgment on the respondeat superior claim, and Buck's first issue is overruled.

Negligence

In her second issue, Buck contends that the trial court erred in dismissing her negligence claim because it was not a "health care liability claim" under the Texas Medical Liability and Insurance Improvement Act. Tex.Rev.Civ. Stat. Ann. art. 4590i (Vernon Supp.2003) (repealed 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.001-.507 (Vernon Supp.2004)). A dismissal under 4590i is generally reviewed under an abuse of discretion standard. See, e.g., Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex.App.-El Paso 2001, pet. denied). However, to the extent resolution of this issue requires interpretation of the statute itself, we review under a de novo standard. See id. The act defines "healthy care liability claim" as follows:

"Health care liability claim" means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract.

Tex.Rev.Civ. Stat. Ann. art....