Chesterman v. Barmon

• Decision Date: 29 October 1986
• Citation: 727 P.2d 130,82 Or.App. 1
• Parties: , 1 IER Cases 1385 Linda CHESTERMAN, Appellant, v. Harry BARMON and Construction 80, Inc., Respondents, Lexington Construction, Inc., Defendant. 82-0538C; CA A35388.
• Court: Oregon Court of Appeals

Page 130

727 P.2d 130

82 Or.App. 1, 1 IER Cases 1385

Linda CHESTERMAN, Appellant, v. Harry BARMON and Construction 80, Inc., Respondents Lexington Construction, Inc., Defendant.

82-0538C; CA A35388.

Court of Appeals of Oregon.

Argued and Submitted Feb. 14, 1986.

Decided Oct. 29, 1986.

Lawrence Matasar, Portland, argued the cause for appellant. With him on the briefs was Hoffman, Matasar & Glaeser, Portland.

Michael A. Lehner, Portland, argued the cause for respondents. With him on the brief were Barry F. Shanks, and Mitchell, Lang & Smith, Portland.

Before JOSEPH, C.J., and VAN HOOMISSEN and YOUNG, JJ.

JOSEPH, Chief Judge.

Plaintiff brought this personal injury action, alleging, inter alia, liability of Construction 80, Inc. (defendant), for negligent retention of an employe (Barmon) and vicarious liability for Barmon's actions. Defendant moved for summary judgment, which the trial court granted. Plaintiff appeals. ¹ We reverse and remand.

Barmon was president of defendant and had been president of Lexington Construction, Inc. He was responsible for placing bids for construction jobs and deploying the necessary employes to carry out the work. On the evening of April 2, 1981, at about 8:30, he met with potential customers concerning an addition to their house. After he had drawn up the floor plan and discussed the project, it was about 10:30 or 11 p.m. He had been suffering from depression as well as having difficulties with his work. He had obtained two separate kinds of illegal drugs from a friend, who called some of the pills "chocolate mescaline" and the others "speed." Barmon had been taking the speed at work for about two weeks. He felt that the pills, in his words, "gave me energy to get through the day."

He wanted to complete working up the bid that night. While standing in the potential customers' yard, working on the bid, he took one of the mescaline pills. He then drove to a store about a mile away and phoned his wife to tell her that he was going to their boat to work on the bid. He had worked late at night on the boat on other occasions. He got in his truck and began driving but was not then sure to where he was driving. As he drove, he began hallucinating. Unable to drive safely, he stopped and got out of the truck. He had stopped near a house where a friend had once lived. Everything was dark in the house, except for a light in the bedroom window. When he looked in the window, he saw plaintiff, whom he had not previously met. He forced his way into the house and raped her. He was convicted of rape, sexual abuse and burglary.

Plaintiff's first claim against defendant is for negligent retention of Barmon when it knew of his depression and drug use on the job. On defendant's motion for summary judgment, the trial court held that failure to terminate Barmon "was not negligent as a matter of law, and even if negligent, did not cause plaintiff's injury." In the remaining four claims, plaintiff alleges that defendant and Lexington Construction are vicariously liable for Barmon's trespass, batteries and outrageous conduct. The trial court also granted defendant's motion for summary judgment on those claims, finding that "Barmon was not acting within the course and scope of his employment." There is no material dispute about what Barmon did.

The Supreme Court has previously recognized that an employer can be found negligent for hiring or retaining an employe. Hansen v. Cohen et al, 203 Or. 157, 276 P.2d 391, 278 P.2d 898 (1955). Generally, "[t]o state a cause of action in negligence, [a] plaintiff must allege that [the] defendant owed * * * a duty, that [the] defendant breached that duty, and that the breach was the cause in fact of some legally cognizable damage to [the] plaintiff." Brennen v. City of Eugene, 285 Or. 401, 405, 591 P.2d 719 (1979). It is undisputed that Barmon was an employe. It is also undisputed that he committed intentional tortious acts against plaintiff. In addition, defendant concedes that it is chargeable with knowledge that Barmon was taking drugs at work. The parties dispute, however, whether defendant owed a duty to plaintiff.

An employer whose employes come into contact with members of the public during their employment is responsible for exercising a duty of reasonable care in the selection or retention of its employes. Hansen v. Cohen et al, supra, 203 Or. at 160-61, 276 P.2d 391. Liability is for negligently placing an employe with known dangerous propensities, or dangerous propensities which could have been discovered by a reasonable investigation, in a position where it is foreseeable that he could injure the plaintiff in the course of the work. The duty to use reasonable care in hiring or retaining employes arises because it is foreseeable that the employe, in carrying out his employment, may pose an unreasonable risk of injury to others. See Cain v. Rijken, 300 Or. 706, 714-15, 717 P.2d 140 (1986).

To establish that defendant owed plaintiff a duty to use reasonable care in retaining Barmon, she would have to show that it was reasonably foreseeable that she would come into contact with him as a result of his employment. We conclude, as a matter of law, that the trial court was correct in granting defendant's motion for summary judgment on the negligent retention claim. See Stewart v. Jefferson Plywood Co., 255 Or. 603, 609-10, 469 P.2d 783 (1970). Plaintiff has not shown that defendant owed her a duty of reasonable care in retaining Barmon as an employe. If he posed an unreasonable risk of injury to anyone, because of his employment, it was only to clients or potential clients of defendant. Plaintiff had not been involved in any relationship with defendant or its employes up to the moment of Barmon's trespass. She has not shown that it was reasonably foreseeable that she would come into contact with Barmon as a result of his employment by defendant. Defendant cannot be held to any duty toward her in these circumstances.

Plaintiff alleged that defendant and Lexington Construction were vicariously liable for the acts of Barmon, even if defendant was not independently negligent. In order to hold defendant vicariously liable, plaintiff must establish that Barmon was acting within the scope of his employment. Stanfield v. Laccoarce, 284 Or. 651, 654, 588 P.2d 1271 (1978). Whether an employe has acted within the scope of employment at any given time is generally a question for the trier of fact, except in cases where only one reasonable conclusion can be drawn from the facts. Gossett v. Simonson, 243 Or. 16, 24, 411 P.2d 277 (1966).

The parties disagree about what act or acts of Barmon's should be examined to determine whether he was acting within the scope of his employment. Plaintiff argues that his acts of ingesting hallucinogenic drugs while at work and thereafter entering plaintiff's home are the acts on which ...