Chesterman v. Barmon

• Decision Date: 12 April 1988
• Citation: 753 P.2d 404,305 Or. 439
• Parties: Linda CHESTERMAN, Respondent on Review, v. Harry BARMON, Defendant, Construction 80, Inc., Petitioner on Review, Lexington Construction, Inc., Defendant. 82-0538C; CA A35388; SC S33475.
• Court: Oregon Supreme Court

Page 404

753 P.2d 404

305 Or. 439

Linda CHESTERMAN, Respondent on Review, v. Harry BARMON, Defendant Construction 80, Inc., Petitioner on Review Lexington Construction, Inc., Defendant.

82-0538C; CA A35388; SC S33475.

Supreme Court of Oregon In Banc.

Argued and Submitted April 7, 1987.

Decided April 12, 1988.

Thomas M. Christ, Portland, argued the cause for petitioner on review. With him on the petition was Mitchell, Lang & Smith, Portland.

Lawrence Matasar, Portland, argued the cause for respondent on review. Also on the response to the petition for review was Hoffman, Matasar & Glaeser, Portland.

CARSON, Justice.

This case concerns the doctrine of respondeat superior. The question presented is whether a corporation may be held vicariously liable for an injury to a third party which results from an employee's taking a drug.

The case comes before us for review of the trial court's grant of summary judgment for defendant Construction 80, Inc. (the corporation). On review, our task is not to decide whether the employee was negligent or, if he were negligent, whether the corporation is liable under the doctrine of respondeat superior. Our only task is to decide whether, on the record before the trial court on the motion for summary judgment, that court could decide as a matter of law that the corporation could not be held vicariously liable for the employee's actions. See Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978). On the record before the trial court, plaintiff at trial might argue and a jury could find the following:

Barmon was both an employee and president of the corporation. He met with potential customers at their house on the evening of April 7, 1981, to formulate plans and to obtain information for a remodeling project. After finishing his inspection of the property, Barmon took a pill described as "chocolate mescaline" ¹ while still on the property of the potential customers of the corporation. He took the drug to counter feelings of depression and to give him enough energy to drive to his boat to work on preparing a bid for the remodeling project. Working at his boat was a normal practice for Barmon. After telephoning his wife to tell her that he was going to the boat, Barmon set out in his truck.

While driving, Barmon began to hallucinate. He stopped near a house where he believed a former friend once lived. In fact, however, it was plaintiff's house. Barmon entered the house, broke into plaintiff's locked bedroom, and sexually assaulted plaintiff.

Plaintiff brought this action against Barmon, the corporation, and another construction company with which Barmon had been involved. Plaintiff asserted, inter alia, that the corporation was negligent in retaining Barmon as an employee and that the corporation was vicariously liable for Barmon's actions on the theory of respondeat superior. The trial court granted the corporation's motion for summary judgment on all claims. Although other parties remained in the action, the judgment for the corporation was a final judgment, in compliance with ORCP 67 B.

The Court of Appeals affirmed the summary judgment on the negligent retention claim. Chesterman v. Barmon, 82 Or.App. 1, 4-5, 727 P.2d 130 (1986). The court, however, reversed on claims based upon respondeat superior, finding triable issues of fact on whether Barmon was within the scope of employment in taking the drug. ² I. The Doctrine of Respondeat Superior.

Under the doctrine of respondeat superior, an employer is liable for an employee's torts when the employee acts within the scope of employment. Stanfield v. Laccoarce, 284 Or. 651, 654, 588 P.2d 1271 (1978). Negligence or other tortious conduct by the employer is not required. Plaintiff alleges that either the act of ingesting the drug or the acts of entering her house and assaulting her were tortious acts committed within the scope of employment.

Three requirements must be met to conclude that an employee was acting within the scope of employment. These requirements traditionally have been stated as: (1) whether the act occurred substantially within the time and space limits authorized by the employment; (2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and (3) whether the act is of a kind which the employee was hired to perform. Stanfield v. Laccoarce, supra, 284 Or. at 655, 588 P.2d 1271; Gossett v. Simonson, 243 Or. 16, 24, 411 P.2d 277 (1966).

II. Acts of Entering Plaintiff's House and

Assaulting Her.

Applying the foregoing requirements to this case, Barmon's acts of entering plaintiff's house and sexually assaulting plaintiff were, as a matter of law, outside the scope of employment. They were outside the authorized limits of time and space, were not motivated by a purpose to serve the employer and were not of a kind which Barmon was hired to perform.

Consequently, if plaintiff had attempted to premise the corporation's vicarious liability solely on Barmon's acts of entry and assault, the corporation would not be vicariously liable. The corporation still may be found vicariously liable, however, if other acts which were within Barmon's scope of employment resulted in the acts which led to injury to plaintiff. Plaintiff has premised vicarious liability on such other conduct--Barmon's taking the drug. She contends that the taking of the drug was within the scope of employment and that the taking of the drug resulted in her injury.

III. Act of Ingesting the Drug.

When Barmon took the drug, he was on the property of potential customers of the corporation. He intended to leave the property to go to his boat to continue work on the bid for the remodeling project. This was the usual pattern of Barmon's work for the corporation and is some evidence that Barmon was acting within authorized time and space limits. There also is some evidence that Barmon ingested the drug to enable him to perform work for the corporation and thus was motivated by a purpose to serve the corporation.

Under the somewhat unusual facts of Barmon's dual relationship to the corporation, a jury might find that Barmon was authorized by the corporation's management to take the drug. Barmon was both president and employee of the corporation. As president, he was broadly charged with responsibility for the corporation's operations. A jury might find that Barmon, in his role as president, had authority to take steps enabling his continued work on the project for the corporation, even to the extent of ingesting a drug.

We conclude that plaintiff has presented sufficient evidence of a claim of respondeat superior and that the corporation was not entitled to summary judgment on that claim. On remand, two questions are presented for the jury's consideration. The first is whether plaintiff's injuries resulted from Barmon's alleged negligence in taking the drug. The jury could find that Barmon's breaking into the house and assaulting plaintiff were acts which resulted from Barmon's taking the drug. ³ If Barmon's taking the drug did result in plaintiff's injuries, it is then a question for the jury whether the taking of the drug was within the scope of employment.

Our decision today might be understood as being at odds with certain of this court's earlier decisions on respondeat superior. See Chesterman v. Barmon, 82 Or.App. 1, 6 n. 2, 727 P.2d 130 (1986). In those decisions, this court determined whether respondeat superior applied as of the time that the injury occurred. Stroud v. Denny's Restaurant, 271 Or. 430, 437, 532 P.2d 790 (1975); Heide/Parker v. T.C.I., Incorporated, 264 Or. 535, 545-46, 506 P.2d 486 (1973); Fogelsong v. Jarman, 168 Or. 177, 183, 121 P.2d 924 (1942). Although appropriate in most cases, the rule is inappropriate where, as here, there is a "time-lag" between the act allegedly producing the harm and the resulting harm. The focus should be on the act on which vicarious liability is based and not on when the act results in injury. ⁴

The decision of the Court of Appeals is affirmed. The judgment of the trial court is affirmed in part and reversed in part. The case is remanded to the trial court for proceedings consistent with this opinion.

PETERSON, Chief Justice, concurring.

It stretches comprehension to believe that any corporation would authorize an employee to ingest chocolate mescaline to "give [the employee] enough energy to * * * work on preparing a bid for the remodeling project." 305 Or. at 441, 753 P.2d 405. But corporations, though incorporeal, are created by and operated by human beings, humans often do strange, incomprehensible deeds, and therefore corporations can, as well. I concur with the majority without reservation, but write separately to state why I concur.

ORS 60.301 states that "[a]ll corporate powers shall be exercised by or under the authority of, and the business and the affairs of the corporation managed under the direction of, the board of directors * * *." In every corporation, there must be a real person or persons (at some level of management) that act as the mind exercising the discretion of the corporation.

Viewing the pleadings, affidavits and exhibits in the light most favorable to the plaintiff, this is a case in which a real person was the sole promoter of the corporation, the president of the corporation, the sole person acting in a management capacity in terms of preparing and placing bids for construction jobs and deploying the necessary employees to carry out the work and the person that committed the tortious act. It is undisputed that Barmon's knowledge was the corporation's knowledge. We do not have before us the traditional respondeat superior situation in which the questions are (1) whether a tortious act by a subordinate employee was within the time and space limits authorized by the corporation's policymaking or management employees, (2) whether the subordinate employee was motivated, at least in part, by a...