Gutierrez v. Thorne

• Court: Connecticut Court of Appeals
• Writing for the Court: Before DUPONT; BORDEN
• Citation: Gutierrez v. Thorne, 537 A.2d 527, 13 Conn.App. 493 (Conn. App. 1988)
• Decision Date: 23 February 1988
• Docket Number: No. 5520,5520
• Parties: Stella GUTIERREZ v. Gareth D. THORNE, Commissioner of Mental Retardation.

Page 527

537 A.2d 527

13 Conn.App. 493

Stella GUTIERREZ v. Gareth D. THORNE, Commissioner of Mental Retardation.

No. 5520.

Appellate Court of Connecticut.

Argued Dec. 2, 1987.

Decided Feb. 23, 1988.

Carl E. Cella, North Haven, with whom, on the brief, was Mark D. Arons, New Haven, for appellant (plaintiff).

Carolyn K. Querijero, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen. and Francis J. MacGregor, Asst. Atty. Gen., for appellee (defendant).

Before DUPONT, C.J., and BORDEN and EDWARD Y. O'CONNELL, JJ.

BORDEN, Judge.

The plaintiff brought this action against the defendant in his capacity as commissioner of mental retardation, on the basis of injuries allegedly sustained by the plaintiff while she was a client-participant in a department program. The dispositive issues in this appeal are (1) whether it was reasonably foreseeable that a male employee of the department of mental retardation, who was assigned to supervise the plaintiff's living situation and who was supplied by the department with a key to the plaintiff's apartment, would commit a sexual assault upon the plaintiff in that apartment, and (2) whether the assault by the employee was within the scope of his employment sufficient to attribute his liability to the defendant. The trial court concluded that the documents submitted in support of and in opposition to the defendant's motion for summary judgment on both issues showed that no genuine issue of material fact existed as to these questions, and that the defendant was entitled to judgment as a matter of law. Because we conclude, under the circumstances of this case, that there exists a factual dispute as to whether the assault was reasonably foreseeable, we find error.

This action was brought in three counts. The first count sounds in negligence, alleging that the injuries suffered by the plaintiff were proximately caused by the failure of the defendant commissioner to exercise due care in a number of instances, including, inter alia, the selection and supervision of the employee; the granting to the employee, a male staff member, of access to the plaintiff's apartment; and the failure to become aware of the assaults. ¹ This count also sought to impose liability under a theory of respondeat superior ² The second count, based on General Statutes § 17-206c, ³ repeats the allegations of the first count, and alleges that the defendant failed to guard and secure the plaintiff's personal dignity and right to privacy. In the third count, the plaintiff alleges that the acts of the defendant in failing to exercise due care violated her rights under the United States constitution and are redressable under 42 U.S.C. §§ 1983, 1985 and 1988.

The trial court addressed the legal issues in this case in the context of the defendant's motion for summary judgment. Summary judgment may be rendered if it is shown that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Practice Book § 384; Orenstein v. Old Buckingham Corporation, 205 Conn. 572, 574, 534 A.2d 1172 (1987). "In passing on a defendant's motion for summary judgment, the trial court is limited to deciding whether an issue of fact exists, but ... it cannot try that issue if it does exist." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).

The following undisputed facts were presented to the court for consideration in passing upon the defendant's motion for summary judgment. The plaintiff was referred to the department of mental retardation's central Connecticut regional center (CCRC) because an IQ test indicated that she was mildly retarded. She became a client of CCRC in the supervised apartment program in October, 1981, while living in a privately-owned apartment in Middletown. In this program, the plaintiff was to be supervised by state employees in how to keep her apartment, shop for her needs, budget her expenses, and perform other aspects of daily living.

In July, 1981, Steven Jones applied for a job as a mental retardation aide. In his application, Jones denied any criminal convictions or that any criminal charges were pending, which was verified through a state police fingerprint check. Upon being hired as a mental retardation aide, Jones went through a one-week orientation program and was supervised on a daily basis. Jones' job was to visit high-functioning retarded clients of CCRC living in supervised apartments and to assist them with budgeting and banking problems, shopping, and household management.

In December, 1981, Jones was assigned to visit the plaintiff. As a mental retardation aide, Jones was given a key to the plaintiff's apartment to enable him to enter the apartment in case of emergency. On December 19, while the plaintiff was taking a shower, Jones entered the plaintiff's apartment with the key provided to him and sexually assaulted the plaintiff. After the attack, Jones told the plaintiff that if she disclosed what had happened, she would lose her benefits. On three occasions in January, 1982, Jones returned to the plaintiff's apartment and sexually assaulted her again. Because she became afraid and upset, the plaintiff moved from her apartment and later told the police about Jones' conduct.

Jones was later arrested and pleaded guilty to two counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(2). In the twenty years in which CCRC operated a community residential program prior to 1981, no employee had ever been arrested or convicted of any crime of violence, including sexual assault, involving a CCRC client.

The defendant's motion for summary judgment and documents submitted in support thereof was directed to the issue of "whether it was reasonably foreseeable by the defendant that the plaintiff would be sexually assaulted by the defendant's employee." The trial court concluded that "an intentional tort of the general nature of that suffered by the plaintiff was not foreseeable as a matter of law." The trial court also concluded that the defendant could not be liable to the plaintiff based on the theory of respondeat superior, because Jones' actions which injured the plaintiff were not undertaken within the scope of his employment.

I

We first consider whether the trial court was correct in its conclusion that the defendant is not liable to the plaintiff on a theory of respondeat superior. We conclude that the court's conclusion in this regard was correct.

"The underlying rationale of the modern doctrine of respondeat superior ... is that 'every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority.' Wolf v. Sulik, 93 Conn. 431, 436, 106 A. 443 [1919]; Durso v. A.D. Cozzolino, Inc., 128 Conn. 24, 27, 20 A.2d 392 [1941]. But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Emphasis added.) Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968); see also Cardona v. Valentin, 160 Conn. 18, 22, 273 A.2d 697 (1970) (employer liable for wilful torts of his employee when they are committed in furtherance of the employer's business).

In the present case, it is clear that Jones was not furthering the defendant's business interests when he sexually assaulted the plaintiff. He was engaging in criminal conduct which had no connection to the defendant's business of providing supervision and training to mentally retarded persons regarding daily living skills. Since there were no facts before the court from which it could conclude that Jones was furthering the defendant's interests, the defendant's nonliability under a respondeat superior theory was properly determined as a matter of law. See, e.g., Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 239 A.2d 490 (1968). The plaintiff's statement in her affidavit that Jones was "on duty" at the the time of each assault, does not alter this conclusion, because his tortious conduct while on duty is not susceptible of an inference that he was acting to further his employer's interest. " 'In the course of employment' means while engaged in the service of the master, and it is not synonymous with the phrase 'during the period covered by his employment.' " Id., at 198, 239 A.2d 490, quoting Pacific Telephone & Telegraph Co. v. White, 104 F.2d 923, 926 (9th Cir.1939); see also Cardona v. Valentin, supra, 160 Conn. at 22-23, 273 A.2d 697.

Our conclusion that the trial court was correct in determining that the defendant could not be found vicariously liable based solely upon Jones' conduct does not mean, however, that the court properly granted the defendant's motion for summary judgment. The plaintiff seeks to base the defendant's liability upon allegations of negligence which flow, not solely from Jones' conduct, but also from the defendant's acts or omissions, or those of his agents other than Jones, which allegedly resulted in the injuries to the plaintiff. See footnote 1, supra. As such, the several allegations of a failure to exercise due care on the part of the defendant--each an independent claim of direct negligence--do not depend upon a successful theory of vicarious liability under the doctrine of respondeat superior. See, e.g., Cardona v. Valentin, supra (respondeat superior liability analyzed separately from liability for negligent failure to hire more employees); 53 Am.Jur.2d, Master and Servant § 422, pp. 437-38 (theory of independent negligence becomes important where employee's act was not within scope of employment and respondeat superior liability unavailable). Therefore, the fact that the plaintiff failed to produce facts to show that Jones was acting within the scope of...