Jackson v. Righter, 940045

Citation891 P.2d 1387
Decision Date27 February 1995
Docket NumberNo. 940045,940045
Parties131 Lab.Cas. P 58,072 Jeffrey L. JACKSON, Plaintiff and Appellant, v. Grover P. RIGHTER; Clay Wilkes; Novell, Inc., a Delaware corporation, dba in Utah; Novell, Inc.; and Unix Systems Laboratories, Inc., a New Jersey corporation, dba Univel, a partnership, Defendants and Appellees.
CourtSupreme Court of Utah

Jackson Howard, Leslie W. Slaugh, Provo, for Jackson.

David H. Schwobe, Salt Lake City, for Righter.

Michelle Mitchell, Salt Lake City, for Wilkes.

Stephen J. Hill, Richard A. Van Wagoner, Salt Lake City, for Novell and Univel.

STEWART, Associate Chief Justice:

Plaintiff Jeffrey L. Jackson appeals the district court's grant of summary judgment in favor of defendants Novell, Inc., and the joint venture between Novell, Inc., and Unix Systems Laboratories, Inc., dba Univel. We affirm.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c). We review a grant of summary judgment for correctness, without deference to the trial court's legal conclusions, K & T, Inc. v. Koroulis, 888 P.2d 623, 625-27 (Utah 1994), and view the inferences therefrom in a light most favorable to finding a material issue of fact. Beach v. University of Utah, 726 P.2d 413, 414 (Utah 1986). Accordingly, we recite the facts in a light most favorable to plaintiff.

Plaintiff and Marie Jackson were married August 14, 1987. In November 1988, Mrs. Jackson began working at Novell in Provo, Utah, as a secretary in the Software Engineering Department. At that time, defendant Grover P. Righter was Novell's Director of Software Engineering. As director, Mr. Righter was responsible for supervising several large engineering teams; managing a substantial budget; hiring, evaluating, promoting, and firing employees; and organizing employee functions. Mr. Righter was Mrs. Jackson's immediate supervisor between November 1988 and August 1991 and, over the course of her employment, promoted her to the positions of administrative assistant and project coordinator, authorized her to record unworked overtime hours as an unofficial raise, and gave her substantial bonuses. He also lavished gifts on her from his personal funds.

By November 1990, Mr. Righter had become attracted to Mrs. Jackson and thereafter began making overtures toward her which resulted in a romantic relationship between them. In early 1991, the two spent much time together in Mr. Righter's office during working hours discussing personal matters, hugging, and kissing. On the pretext of business, Mr. Righter took Mrs. Jackson to the Star Palace dance hall in Provo, the Excelsior Hotel in Provo, and the Little America Hotel in Salt Lake City, kissing, hugging, or fondling her on these occasions. Mr. Righter also took Mrs. Jackson on business trips during working hours to monitor Novell's office and team in Sandy, Utah, for which Mr. Righter was responsible, at times taking up to six hours to travel the one-half hour commute between Provo and Sandy. At some point, others at Novell became aware of Mr. Righter's and Mrs. Jackson's activities.

Mrs. Jackson terminated their romantic relationship in July 1991. That same month, Mrs. Jackson began a relationship with defendant Clay Wilkes, who was employed at that time as an engineering manager in Novell's Sandy office. Within weeks, Mr. Wilkes and Mrs. Jackson were involved in a sexual relationship.

In August 1991, Mr. Righter became Vice President of Univel and moved to the Sandy office. Mrs. Jackson transferred with him and remained under his direct-line supervision. In December 1991, Mr. Wilkes also became employed by Univel as a technical lead and worked in the same department with Mrs. Jackson at the Sandy office but never supervised her.

Plaintiff became aware of Mrs. Jackson's romantic involvement with both Mr. Wilkes and Mr. Righter in November 1991. The Jacksons attempted reconciliation and participated in marriage counseling. However, Mrs. Jackson resumed her sexual relationship with Mr. Wilkes shortly thereafter, and the Jacksons subsequently divorced.

Plaintiff then filed this action alleging that defendants Mr. Righter and Mr. Wilkes had alienated Mrs. Jackson's affections toward him, intentionally inflicted emotional and physical injury on him, and intentionally interfered with his marital contract. Plaintiff also alleged that defendants Novell and Univel were vicariously liable for these tortious actions and that Novell and Univel were directly liable for negligently supervising and retaining Mr. Righter and Mr. Wilkes.

All defendants moved for summary judgment on all claims. The trial court denied the motions by Mr. Righter and Mr. Wilkes, but granted summary judgment in favor of Novell and Univel, dismissing all claims against them. The court certified the dismissal as final under Rule 54(b), and plaintiff appeals.


Plaintiff erroneously contends that the trial court dismissed his claims against Mr. Righter and Mr. Wilkes for interference with his marital contract. Because no final order regarding these claims is before this Court, we do not address them.

In its order dismissing Novell and Univel, the trial court attempted to certify to this Court two questions of law: "whether a claim for alienation of affections is stated where the actions of two defendants collectively, but possibly not individually, are alleged to be the controlling cause of the alienation, and ... whether Utah recognizes a cause of action for interference with the marital contract." The Court of Appeals may certify a case to this Court for decision, Utah R.App.P. 43, but the procedure for the certification of an issue is not available to district courts. Accordingly, we do not address these questions.


Plaintiff argues that the trial court erred in granting summary judgment in favor of Novell and Univel because genuine issues of material fact exist regarding (1) whether Mr. Righter's conduct was within the scope of his employment, performed in his managerial capacity, or performed under his apparent authority, and (2) whether Novell and Univel negligently supervised and retained Mr. Righter and Mr. Wilkes. For the reasons discussed below, we hold that no genuine issues existed with respect to plaintiff's claims against Novell and Univel and that summary judgment was proper.

A. Vicarious Liability of Novell and Univel

Plaintiff claims that Mr. Righter's actions that allegedly alienated Mrs. Jackson's affections were within the scope of his employment and that summary judgment for Novell and Univel was improper because such a determination is a question of fact. We disagree. An employer may be vicariously liable under the doctrine of respondeat superior for the harmful actions of an employee if those actions are committed within the scope of the employee's employment. J.H. by D.H. v. West Valley City, 840 P.2d 115, 122 (Utah 1992); Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1040 (Utah 1991); Birkner v. Salt Lake County, 771 P.2d 1053, 1056 (Utah 1989). To be considered within the scope of employment, an employee's conduct must (1) "be of the general kind the employee is employed to perform"; (2) "occur within the hours of the employee's work and the ordinary spatial boundaries of the employment"; and (3) "be motivated, at least in part, by the purpose of serving the employer's interest." Birkner, 771 P.2d at 1056-57. Whether an employee's conduct falls within the scope of employment is ordinarily a question of fact. Clover, 808 P.2d at 1040. However, where the employee's conduct is so clearly outside the scope of employment that reasonable minds cannot differ, the issue may properly be decided as a matter of law. Id.; Birkner, 771 P.2d at 1057. For example, J.H. by D.H. held that a police officer's sexual molestations of a youth under his supervision was clearly outside the scope of employment, as a matter of law, because his acts were not of the kind and nature he was employed to perform. 840 P.2d at 123.

In this case, Mr. Righter's romantic involvement with Mrs. Jackson was so clearly outside the scope of his employment that reasonable minds could not differ. Applying the Birkner criteria, we note, as Novell and Univel concede, that most of Mr. Righter's alleged tortious conduct occurred within the hours and spatial boundaries of his employment. However, Mr. Righter's conduct was not of the general type he was employed to perform, and neither was it intended to serve, nor did it serve, Novell's or Univel's purpose. Mr. Righter was not hired to perform acts of a sexual nature on, or make romantic overtures toward, an employee under his supervision. See J.H. by D.H., 840 P.2d at 123; Birkner, 771 P.2d at 1058. Plaintiff argues that many of Mr. Righter's alleged tortious acts were part of the conduct he was hired to perform in connection with his authority to promote, evaluate, train, and give raises to Mrs. Jackson. For example, plaintiff asserts that the first time Mr. Righter expressed his attraction for Mrs. Jackson was while he held her hand during a formal employee evaluation in his office. Plaintiff's argument is without merit. Mr. Righter was not authorized to use his supervisory position to engage in a romantic relationship with his subordinates. His romantic advances were not a part of his duties but amounted to an abandonment of the supervisory and managerial responsibilities he was hired to perform.

In addition, while Mr. Righter used his company duties as a springboard for pursuing his relationship with Mrs. Jackson, he was not motivated by the purpose of serving Novell's or Univel's interests. An employee's conduct is usually not in the scope of employment where the employee's motivation for the activity is personal, even though some transaction of business or performance of duty may also...

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