Hendley v. Springhill Memorial Hosp.

CourtSupreme Court of Alabama
Writing for the CourtADAMS; HORNSBY
Citation575 So.2d 547
PartiesSherrea HENDLEY v. SPRINGHILL MEMORIAL HOSPITAL and West Mobile Therapy Associates. 89-494.
Decision Date07 September 1990

Page 547

575 So.2d 547
Sherrea HENDLEY
v.
SPRINGHILL MEMORIAL HOSPITAL and West Mobile Therapy Associates.
89-494.
Supreme Court of Alabama.
Sept. 7, 1990.

Page 548

Richard E. Browning of Briskman, Binion & Browning, P.C., Mobile (at time of filing of original brief), and of Sherling, Browning & York, P.C., Mobile (at time of filing of reply brief), for appellant.

Wade B. Perry, Jr. and Steven J. Allen of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellees.

ADAMS, Justice.

Sherrea Hendley appeals from a partial summary judgment holding that, at all pertinent times, defendant Jack Sands was not an agent of either of the movants, but, rather, was an independent contractor. On December 1, 1989, the circuit court heard the arguments and considered the briefs and supporting evidentiary materials filed by the parties. The circuit court granted a partial summary judgment in favor of Springhill Memorial Hospital ("Springhill") and West Mobile Therapy Associates ("West Mobile"). The court's well-reasoned opinion stated, in part:

"... [The court] finds that at all pertinent times, the Defendant Sands was not an agent of either of the Movants, but rather was an independent contractor. Moreover, even if Sands did have an agency relationship with either of the Movants, the sexual assault alleged, by

Page 549

its very nature, was not an act which was fairly incident to the relationship, nor was it in promotion of Sands' duties. Rather, the act alleged was wholly aside from the business of either the hospital or of the therapy group, was not done in promotion of the business of either, and the alleged act, if committed, was done on Sands' own behalf and not pursuant to his duties with either of the Movants. The Court therefore concludes that with respect to the allegations in Plaintiff's First Cause of Action based on a theory of vicarious liability for the acts of the Defendant Jack Sands, that there is no genuine issue of any material fact and that the Movants are therefore entitled to judgment as a matter of law.

"It is thereby ORDERED, ADJUDGED, and DECREED that the Summary Judgment Motion of the Defendants Springhill Memorial Hospital and West Mobile Therapy Associates be and [it] is hereby GRANTED, in part, dismissing all claims against Springhill Memorial Hospital and West Mobile Therapy Associates based on vicarious liability for the acts alleged to have been committed by the Defendant Sands."

We affirm.

Hendley alleged that Sands represented himself as an agent of Springhill and performed an unauthorized vaginal examination on her. Sands was a vendor of "TENS" units through his company, Electro-Med, Inc. TENS units provide pain relief to patients by delivering electrical stimulation through electrodes attached to indicated areas of the body. Whenever a TENS unit was prescribed, Sands would make rounds to establish if the unit was functioning properly by checking the battery strength and modality settings. If a patient indicated that a unit was not providing proper relief, Sands would make the necessary adjustments to the unit or replace the electrodes. In order for a patient to be eligible for a TENS unit treatment, a doctor had to make a recommendation to the physical therapy department. In order for Springhill to provide this service, a contractual agreement was entered between Springhill and West Mobile that gave West Mobile the exclusive right to provide physical therapy services at Springhill. An additional provision in the contract required West Mobile to maintain a listing in the telephone book that read "Physical Therapy Department" of Springhill. On a daily basis, a report of billings generated as a result of physical therapy provided by West Mobile was submitted to Springhill. West Mobile was then paid a flat rate of 40% of the submitted figure. Springhill provided the space for West Mobile in the hospital and on the door was a sign reading "Physical Therapy Department." Sands, as the sole provider of TENS units, billed the hospital on a one-time flat fee each time a patient was given a TENS unit treatment. This charge was then passed on to the patient as part of his or her overall bill.

There was no written...

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36 practice notes
  • Lisa M. v. Henry Mayo Newhall Memorial Hospital, No. S043581
    • United States
    • United States State Supreme Court (California)
    • December 26, 1995
    ...sexual assault by a medical technician is not within the scope of employment. (Compare Hendley v. Springhill Memorial Hosp. (Ala.1990) 575 So.2d 547, 551 [technician " 'acted from wholly personal motives' "], Mataxas v. North Shore University Hospital (1995) 211 A.D.2d 762, 621 N.......
  • W. Va. Reg'l Jail & Corr. Facility Auth. v. A. B., No. 13-0037
    • United States
    • Supreme Court of West Virginia
    • October 31, 2014
    ...was "against all rules of his profession and were without any benefit to his employer"); Hendley v. Springhill Mem'l Hosp., 575 So. 2d 547, 550-51 (Ala. 1990) (employer not liable for unauthorized vaginal exam performed by physical therapy service vendor because it was personally ......
  • Ware v. Timmons, 1030488.
    • United States
    • Supreme Court of Alabama
    • May 5, 2006
    ...for the plaintiff to establish the status of employer and employee — master and servant." Hendley v. Springhill Mem'l Hosp., 575 So.2d 547, 550 (Ala. 1990). We have previously stated that "[p]roof of a master and servant relationship is tested by the degree of control the alleged ......
  • Patterson v. Augat Wiring Systems, Inc., Civil Action No. 96-A-218-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • October 28, 1996
    ...of the employer." Hudson v. Muller, 653 So.2d 942, 944 (Ala. 1995) (emphasis added) (quoting Hendley v. Springhill Memorial Hosp., 575 So.2d 547, 550 (Ala.1990)). It is conceivable that Sweeney was acting in the line and scope of his employment at Augat by seeking to discourage the Pla......
  • Request a trial to view additional results
36 cases
  • Lisa M. v. Henry Mayo Newhall Memorial Hospital, No. S043581
    • United States
    • United States State Supreme Court (California)
    • December 26, 1995
    ...sexual assault by a medical technician is not within the scope of employment. (Compare Hendley v. Springhill Memorial Hosp. (Ala.1990) 575 So.2d 547, 551 [technician " 'acted from wholly personal motives' "], Mataxas v. North Shore University Hospital (1995) 211 A.D.2d 762, 621 N.......
  • W. Va. Reg'l Jail & Corr. Facility Auth. v. A. B., No. 13-0037
    • United States
    • Supreme Court of West Virginia
    • October 31, 2014
    ...was "against all rules of his profession and were without any benefit to his employer"); Hendley v. Springhill Mem'l Hosp., 575 So. 2d 547, 550-51 (Ala. 1990) (employer not liable for unauthorized vaginal exam performed by physical therapy service vendor because it was personally ......
  • Ware v. Timmons, 1030488.
    • United States
    • Supreme Court of Alabama
    • May 5, 2006
    ...for the plaintiff to establish the status of employer and employee — master and servant." Hendley v. Springhill Mem'l Hosp., 575 So.2d 547, 550 (Ala. 1990). We have previously stated that "[p]roof of a master and servant relationship is tested by the degree of control the alleged ......
  • Patterson v. Augat Wiring Systems, Inc., Civil Action No. 96-A-218-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • October 28, 1996
    ...of the employer." Hudson v. Muller, 653 So.2d 942, 944 (Ala. 1995) (emphasis added) (quoting Hendley v. Springhill Memorial Hosp., 575 So.2d 547, 550 (Ala.1990)). It is conceivable that Sweeney was acting in the line and scope of his employment at Augat by seeking to discourage the Pla......
  • Request a trial to view additional results

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