Doe v. Swift

• Decision Date: 28 September 1990
• Citation: 570 So.2d 1209
• Court: Alabama Supreme Court
• Parties: Jane DOE v. George R. SWIFT, as Finance Director of the State of Alabama, et al. George R. SWIFT, as Finance Director of the State of Alabama, et al. v. Jane DOE. 89-604, 89-703.

Page 1209

570 So.2d 1209

Jane DOE v. George R. SWIFT, as Finance Director of the State of Alabama, et al.

George R. SWIFT, as Finance Director of the State of Alabama, et al. v. Jane DOE.

89-604, 89-703.

Supreme Court of Alabama.

Sept. 28, 1990.

Rehearing Denied Nov. 9, 1990.

Bingham D. Edwards and Mark B. Craig, Decatur, and Alvin T. Prestwood, Montgomery, for appellant/cross-appellee.

Leura J. Garrett, Asst. Atty. Gen., J. Knox Argo of Argo, Enslen, Holloway & Sabel, and Thomas S. Lawson, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for appellees/cross-appellants.

HOUSTON, Justice.

In effect, we are asked by Jane Doe ("the plaintiff") to require the defendants, ¹ through the State Employees' Liability Trust Fund (the "Fund"), established pursuant to Alabama Code 1975, § 36-1-6.1 (Act 83-521, Alabama Legislature 1983) ("the Act"), to pay a judgment that the plaintiff had obtained against Dr. John Hall, a state psychologist, for sexually assaulting the plaintiff. The plaintiff had acquired her judgment against Dr. Hall in an earlier federal action.

In the federal action, the plaintiff alleged that while she was involuntarily committed at North Alabama Regional Hospital, she was sexually assaulted by Dr. Hall, a psychologist assigned to the hospital. A jury awarded the plaintiff $1.5 million in compensatory damages and $5 million in punitive damages against Dr. Hall. The allegations of the plaintiff's complaint in the federal action were that "Dr. Hall willfully and intentionally engaged in a course of conduct which he knew was in direct violation of his duties and obligations" and that he "recklessly and wantonly disregarded his duties and obligations." When the State of Alabama failed to pay the federal judgment against Dr. Hall out of the Fund, the plaintiff brought this state court action, seeking to prove that Dr. Hall was entitled to protection by the Act, because, the plaintiff alleged, his sexual assaults on her were "committed while in the performance of [his] official duties in the line and scope of [his] employment," and seeking to compel payment of the judgment from the Fund. The trial court entered summary judgment for the defendants. The plaintiff appealed. ²

The express purpose of the Act is, in pertinent part, as follows (as quoted from the title of the Act):

"To provide for the protection of state employees ... for certain wrongful acts ... committed while in the performance of their duties in the line and scope of their employment...."

Pursuant to the Act, certain "terms and conditions" were adopted, which the plaintiff contends should be interpreted to expand the protection authorized by the Act so as to cover all acts by state employees, regardless of whether such acts were done "while in the performance of their official duties in the line and scope of their employment." The trial court rejected such reasoning, holding as follows:

"The Court has examined [the Act] as a whole and concludes that the legislature could have only rationally intended that the State provide state employees coverage for their negligent or wrongful acts committed while in the performance of their official duties in the line and scope of their employment. See, John Deere Co. v. Gamble, 523 So.2d 95 (Ala.1988) (in determining legislative intent the Court should consider the act as a whole and will presume that the legislature intended a rational result). The Court does not believe that the State funds could be legally spent for liability insurance or errors and omissions insurance to cover the acts of state employees which were not committed in the performance of their official duties in the line and scope of employment.

"The Court further finds that the requirements of [the Act] should be read into the comprehensive general liability insurance policy and that the coverage provided in Part 1B can only extend to occupational errors or omissions arising out of the performance of or failure to perform official duties in the employees' capacity and were either done or omitted in the line or scope of their employment. Any other interpretation results in the conclusion that the Finance Director exceeded the authority granted him by [the Act] in providing self insurance."

We agree--the Act controls the outer limits of the protection afforded. Thus, in order to resolve the dispositive issue, we must interpret the language in the Act, "while in the performance of their official duties in the line and scope of their employment."

There have been numerous Alabama cases interpreting the "line and scope language." These cases are relevant to interpret the phrase "line and scope" in the Act and, thus, the protection afforded by the Act.

" ' ... The test is the service in which the employee is engaged. The rule which has been approved for determining whether certain conduct of an employee is within the line and scope of his employment is substantially that if an employee is engaged to perform a certain service, whatever he does to that end, or in furtherance of the employment, is deemed by law to be an act done within the scope of the employment.'

"The conduct of the employee ... must not be impelled by motives that are wholly personal, or to gratify his own feelings or resentment, but should be in promotion of the business of his employment."

Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 401, 232 So.2d 638, 642 (1970) (citations omitted) (emphasis added); see, also, Plaisance v. Yelder, 408 So.2d 136 (Ala.Civ.App.1981) (in which the Court of Civil Appeals noted that the test is whether "it can be shown that the servant acted from wholly personal motives having no relation to the business of the master").

In Prosser v. Glass, 481 So.2d 365 (Ala.1985), the "furtherance of the employment" aspect of the test was discussed. In Prosser, the employee, a mechanic employed to assist in developing a fuel-saving device, was assisting in repairing a truck for a neighboring business, but at his employer's place of business. This Court, finding that the employee was not acting in the line and scope of employment, found that his repair of the truck "would not reasonably further the purpose of developing the fuel-saving device, which was the business at hand. Therefore, (the employee's) deviation ... was ... outside the scope of employment." (Emphasis added.)

In Joyner v. AAA Cooper Transp., 477 So.2d 364 (Ala.1985), the plaintiffs sued an employer, alleging that its terminal manager had committed assault and battery by "forcing or attempting to force them to engage in homosexual acts with him." Citing Solmica of the Gulf Coast, Inc., supra, this Court noted that the manager's acts were not in the line and scope of his employment, and were not "in furtherance of AAA's business." In Great Atlantic & Pacific Tea Co. v. Lantrip, 26 Ala.App. 79, 153 So. 296 (1934), the Alabama Court of Appeals held that sexual advances made by a store clerk while waiting on the plaintiff, including forcibly putting the plaintiff's hand on a certain part of his body, was "entirely personal ... and was wholly aside from the master's business." Thus, there was no liability under respondeat superior.

There are numerous other cases ³ holding that sexual misconduct by an employee is purely personal and outside the line and scope of his employment. In Andrews v. United States, 732 F.2d 366 (4th Cir.1984), Andrews sued the Government under the Federal Tort Claims Act, alleging that Gee, a military physician's assistant, had seduced Ms. Andrews and that his supervisor, Dr. Frost, had been negligent in supervising Gee. For the plaintiff to recover under the Act, Gee and Frost must have been acting within the line and scope of their employment. The court noted that "Gee was furthering his self-interest, not his employer's business, at the time he seduced his patient." However, Andrews was allowed to proceed with the suit, because Dr. Frost was alleged to have negligently supervised Gee and the supervision of Gee was within the line and scope of Frost's employment.

The facts in Andrews were very similar to the facts in this case. Like the plaintiff in Andrews, this plaintiff sued the principal actor, Dr. Hall, and his supervisor, in the federal action. In that case, the claim against the supervisor was settled and payment was made by the Fund, since, as noted in Andrews, negligent supervision is within the line and scope of a supervisor's official duties. In her suit against Dr. Hall, the plaintiff established that she had been sexually assaulted by Dr. Hall, whose misconduct she alleged in her federal complaint was "wholly personal" and not done "in furtherance of his employment," but solely "to gratify his own feelings." The sexual assault was not committed in the line and scope of his employment by the State of Alabama.

We have carefully reviewed the cases cited by the plaintiff as authority for the proposition that "sexual acts can be in the line and scope of one's employment." ⁴ We are not persuaded by the holdings in these cases. Furthermore, of these cases, only Simmons v. United States, 805 F.2d 1363 (9th Cir.1986), is relevant to the facts of this case. Simmons was a patient of Kammers a counselor with the Indian Health Service. She saw Kammers for counseling from 1973 until August 1980 and then maintained the counseling relationship through telephone contacts until July 1981. In October 1978, after five years of counseling, Simmons and Kammers entered into a romantic relationship and in January 1979 had sexual intercourse. After the relationship ended, Simmons sued the United States under the Federal Tort Claims Act. Under that Act, in order for Simmons to recover, she had to prove that Kammers was acting within the scope of his employment. The Court of Appeals for the Ninth Circuit concluded that Kammers was acting within the scope of his employment because he mishandled the "transference phenomenon," a condition that...