Bunce v. Parkside Lodge of Columbus

• Decision Date: 23 April 1991
• Docket Number: No. 90AP-1106,90AP-1106
• Citation: 596 N.E.2d 1106,73 Ohio App.3d 253
• Parties: BUNCE, Appellant, v. PARKSIDE LODGE OF COLUMBUS et al., Appellees. *
• Court: Ohio Court of Appeals

Page 253

73 Ohio App.3d 253

596 N.E.2d 1106

BUNCE, Appellant, v. PARKSIDE LODGE OF COLUMBUS et al., Appellees. ^*

No. 90AP-1106.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided April 23, 1991.

Steven E. Hillman, Portsmouth, for appellant.

Baker & Hostetler, and Mary M. Bittence, Cleveland, for appellee Parkside Lodge.

Cassidy & Meeks, and Samuel H. Shamansky, Columbus, for appellee Byron Brown.

BOWMAN, Presiding Judge.

In January 1989, appellant, Kimberly Bunce, checked into Parkside Lodge of Ohio, Inc., a drug and alcohol rehabilitation facility, for treatment of a cocaine addiction. Under the program, Bunce would live at the facility for thirty days and then would participate in an outpatient treatment regime. Appellee, Byron Brown, was employed by appellee, Parkside, as a senior counselor with supervisory authority over other members of the counseling staff.

During her stay at Parkside, Bunce had an argument with another patient and decided to leave. Brown went to her room and was able to persuade her to stay. Bunce alleges that, while she and Brown were alone in her room, Brown hugged her and fondled her breast. A few days later, they met again in Brown's office and Bunce claims Brown again hugged her and they engaged in sexual intercourse. Several other sexual encounters allegedly occurred, both in Brown's office and in the office of Parkside's treatment director.

Bunce eventually revealed her sexual relationship with Brown to two other Parkside counselors and severed her connection to both Brown and the facility. Brown resigned from Parkside shortly thereafter. Bunce subsequently filed an action against both Parkside and Brown in the Franklin County Court of Common Pleas alleging sexual assault, misuse of a counselor/patient relationship, malpractice, negligence, and intentional infliction of emotional distress.

The trial court granted Parkside's motion for summary judgment on the ground that as a matter of law Parkside could not be liable for the intentional acts of its employee, Brown. The matter proceeded to a jury trial on the allegations against Brown. However, the trial court directed a verdict in Brown's favor at the close of Bunce's case.

Bunce appeals from both the summary judgment and directed verdict granted in the trial court, assigning the following as error:

"Assignment of Error I

"The trial court erred in granting the defendant Parkside a summary judgment in that there were disputed material questions of fact for the trier of fact to decide.

"Assignment of Error II

"The trial court erred by granting the appellee Brown a directed verdict at the close of appellant's case."

Bunce's first assignment of error asserts that a genuine issue of material fact existed as to the liability of Parkside for the actions of Brown and, thus, the trial court erred in granting Parkside's summary judgment motion. According to Bunce, the sexual activity initiated by Brown arose out of and was facilitated by Brown's employment with Parkside.

The trial court, by judgment entry, determined that any actions by Brown were outside the scope of his employment, so that as a matter of law Parkside could not be held liable. We agree.

Summary judgment is proper only where the trial court, construing the facts in a light most favorable to the nonmovant, determines that no genuine issue of material fact exists and the nonmovant is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. If the facts do not suggest a dispute, " * * * the question of whether an employee was acting within the scope of his employment is not one of fact, but is one of law for the court. * * * " Knecht v. Vandalia Medical Center, Inc. (1984), 14 Ohio App.3d 129, 132, 14 OBR 145, 147, 470 N.E.2d 230, 233.

To support her claim that Parkside was liable under the doctrine of respondeat superior, Bunce needed to demonstrate that Brown's conduct was within the scope of his employment. See Byrd v. Faber (1991), 57 Ohio St.3d 56, 58, 565 N.E.2d 584, 587. An employer is not liable for " * * * independent self-serving acts of his employees which in no way facilitate or promote his business." Id. at 59, 565 N.E.2d at 588.

The instant facts do not establish that sexual contact between Brown and Bunce was in the scope of Brown's employment. Parkside neither recommended nor condoned such a counselor/patient relationship. Instead, this was a situation " * * * in which the employee acted from intensely personal motives, be they malice, lust or rage * * * " and in which Brown was " * * * indisputably outside his appointed tasks * * *." Taylor v. Doctors Hosp. (1985), 21 Ohio App.3d 154, 156, 21 OBR 165, 167, 486 N.E.2d 1249, 1251.

Bunce directs our attention to several extra-jurisdictional decisions which arguably support her contention that the question of Parkside's vicarious liability must survive summary judgment. Finding the holdings of these cases to be contrary to Ohio law as promulgated in Byrd, supra, we reject their persuasive value.

Bunce cites Shrout v. Black Clawson Co. (S.D.Ohio 1988), 689 F.Supp. 774, 781, for its view that, because the plaintiff-employee was sexually harassed during working hours at the worksite by a person with supervisory authority over the terms of her employment, the supervisor's conduct was within the scope of his employment and the employer could be vicariously liable. We distinguish Shrout on the basis that Shrout involved a quid pro quo sexual harassment claim, an element of which is that the employee's submission to the sexual conduct must be an express or implied condition for receiving job benefits. Id. at 780. Inherent in this type of suit is the notion that the very power of the supervisor to coerce his subordinate derives from the cloak of authority placed upon him by the employer. Id. at 781, citing Meritor Sav Bank, FSB v. Vinson (1986), 477 U.S. 57, 76-77, 106 S.Ct. 2399, 2410, 91 L.Ed.2d 49, 65-66.

This type of relationship is simply not present under the instant facts, since it was Brown's counselor role, and not his employment with Parkside, which would have enabled him to initiate an intimate relationship with Bunce. The type of control over Bunce's conduct held by a counselor is vastly different from the authority held by a supervisor in an employment situation. We therefore reject Shrout as a basis for finding that Parkside may have been liable under a respondeat superior theory.

Two other cases identified by Bunce are factually similar to the instant facts, yet embrace a rule of law not adopted in Ohio.

Marston v. Minneapolis Clinic of Psychiatry and Neurology, Ltd. (Minn.1982), 329 N.W.2d 306, addressed whether the employer of a psychologist who had seduced two female patients could be vicariously liable for the psychologist's acts. Following a previous decision which had rejected examination of the employee's motive as crucial to the respondeat superior question, the Minnesota Supreme Court held in Marston that the proper test was whether the employee was " * * * doing anything which is reasonably incidental to his employment * * * " and which conduct occurred " * * * within work-related limits of time and place. * * *" Id. at 311, fn. 3. In addition:

" * * * ' * * * The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the principal but rather whether such conduct should fairly have been foreseen from the nature of the employment and the duties relating to it.' " Id.

In so holding, the Marston court refused to impose liability on the employer based upon the "arbitrary determination" of at what point the employer's acts transgress from being in furtherance of the employer's business to being in promotion of his own intentions. Id. at 311.

Similarly, Bunce's cited case of Stropes v. Heritage House Childrens Ctr. (Ind.1989), 547 N.E.2d 244, in which the plaintiff sought to attach vicarious liability to a mental health care facility for the sexual molestation of a patient by a nurse's aide, held that " * * * an employee's wrongful act may still fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business, even if the act was predominately motivated by an intention to benefit the employee himself. * * * " (Emphasis added.) Id. at 247.

The philosophy of both Marston and Stropes rests upon a hesitancy to conduct what the courts consider to be a post hoc inquiry into the psyche of the employee in an effort to define the precise moment when an employee's action departs from the scope of his employment. As evidenced by Byrd, supra, the Ohio Supreme Court has not adopted the view that motive is irrelevant to such cases, and neither may we.

Nor do we see any difficulty in examination of the employee's motive in situations such as the case at bar, since the moment when a counselor's conduct progresses from a friendly gesture to prohibited sexual touching is capable of clear definition. Even clearer is the concept that sexual contact occurring in an orthodox counseling program would be completely unrelated to the business of the employer. We thus decline Bunce's invitation to follow the Minnesota and Indiana Supreme Courts on this issue.

Because we find that the trial court properly concluded that Brown acted outside the scope of his employment, the court did not err in granting Parkside's summary judgment motion. Bunce's first assignment of error is overruled.

Bunce's second assignment of error charges that the trial court erred in granting Brown's directed verdict motion at the close of Bunce's case. The court apparently based the directed verdict upon its belief that Bunce's evidence failed to support her sexual assault claim.

Civ.R. 50(A)(4) provides:

"When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court,...