Lisa M. v. Henry Mayo Newhall Memorial Hospital, S043581

Citation907 P.2d 358,12 Cal.4th 291,48 Cal.Rptr.2d 510
Decision Date26 December 1995
Docket NumberNo. S043581,S043581
CourtUnited States State Supreme Court (California)
Parties, 907 P.2d 358, 64 USLW 2414, 95 Cal. Daily Op. Serv. 9879, 95 Daily Journal D.A.R. 17,103 LISA M., Plaintiff and Appellant, v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL, Defendant and Respondent.

[12 Cal.4th 294] [907 P.2d 359] R. Rex Parris, Lancaster, and Michael R. Smith, Berkeley, for Plaintiff and Appellant.

Ian Herzog, Santa Monica, Douglas Devries, Sacramento, Roland Wrinkle, Woodland Hills, Harvey R. Levine, San Diego, Robert Steinberg, Los Angeles, Thomas G. Stolpman, William D. Turley, San Diego, Mary E. Alexander, San Francisco, Bruce Broillet, Santa Monica, Wayne McClean, Woodland Hills, Leonard Sacks, Granada Hills, Tony Tanke, Belmont, Leonard Esquina, Sacramento, David Rosen, Gordon, Edelstein, Krepack, Grant, Felton & Goldstein and Steven J. Kleifield, Los Angeles, as Amici Curiae on behalf of Plaintiff and Appellant.

Veatch, Carlson, Grogan & Nelson, John B. Loomis, Los Angeles, C. Snyder Patin, Orange, Horvitz & Levy, Barry R. Levy and David S. Ettinger, Encino, for Defendant and Respondent.

Beach, Procter, McCarthy & Slaughter, Thomas E. Beach, Sean D. Cowdrey, Ventura, Greines, Martin, Stein & Richland, Martin Stein, Marc J. Poster, Priscilla F. Slocum, Beverly Hills, Thelen, Marrin, Johnson & Bridges, Curtis A. Cole, Los Angeles, and Jason G. Wilson, Los Angeles, as Amici Curiae on behalf of Defendant and Respondent.

WERDEGAR, Associate Justice.

Plaintiff Lisa M. was injured in a fall and sought treatment at defendant Henry Mayo Newhall Memorial Hospital (Hospital). Under the pretense of conducting an ultrasound imaging examination, a technician sexually molested her. In plaintiff's action against Hospital and others, the trial court granted summary judgment in favor of Hospital; the Court of Appeal reversed. The question presented is whether Hospital, even if not negligent in employing or supervising the technician, may be held vicariously liable for his misconduct under the doctrine of respondeat superior. We conclude the undisputed facts show Hospital is not vicariously liable.


The facts are taken largely from the declarations and depositions submitted in support of and opposition to Hospital's motion for summary judgment. Some undisputed facts are taken from the parties' separate statements of undisputed facts. (Code Civ.Proc., § 437c, subd. (b).)

On July 9, 1989, plaintiff, 19 years old and pregnant, was injured in a fall at a movie theater and sought treatment at Hospital's emergency room. At [12 Cal.4th 295] the direction of the examining physicians, ultrasound technician Bruce Wayne Tripoli performed obstetrical and upper-right-quadrant ultrasonic imaging examinations.

Tripoli took plaintiff to the ultrasound room on a gurney. She remained in her street clothes, shorts and a maternity top. No one else was present during the examination; plaintiff had asked that her boyfriend accompany her, but Tripoli refused the request, as was his practice in conducting emergency obstetrical examinations. Tripoli turned out the room lights but left the adjacent bathroom door ajar to admit dim light. 1

[907 P.2d 360] Tripoli first conducted the prescribed examinations. Plaintiff pulled up her shirt and pushed her shorts down to expose the area to be examined. The obstetrical or "general pelvic" examination requires passing an ultrasound-generating wand across the patient's lower abdomen. The sound waves must be mediated by a gel, which Tripoli testified must be worked into the skin somewhat to displace all the air. The exact placement and movement of the wand varies with the patient's body type, and on some patients the best images are obtained by passing the wand as much as an inch below the pubic hairline. Tripoli found it necessary to do so in plaintiff's case. In performing the upper-right-quadrant examination (to see the liver), Tripoli had to lift plaintiff's right breast, which he did through a towel with the back of his hand.

After conducting the ordered examinations, Tripoli left the room for about 10 minutes to develop the photographic results. On his return, Tripoli asked plaintiff if she wanted to know the sex of the baby, and she said she did. He told her, falsely, that to determine the sex he would need to scan "much further down," and it would be uncomfortable. With plaintiff's cooperation, Tripoli pulled plaintiff's shorts down and began to scan in her pubic hair. According to plaintiff, he also inserted the wand in her vagina. After a while he put down the wand and fondled plaintiff with his fingers. Plaintiff testified he moved his fingers "around everywhere down there." While fondling plaintiff, Tripoli said he needed to excite her to get a good view of the baby. Plaintiff found the touching uncomfortable, but Tripoli testified he thought she was getting pleasure from it because she said it tickled. Tripoli eventually stopped molesting plaintiff and returned her to the emergency room.

At the time of the misconduct, plaintiff thought it was part of a "regular procedure," albeit "kind of weird." Later that day, however, she began to [12 Cal.4th 296] suspect Tripoli's actions were improper, a suspicion confirmed the next morning when she talked to her regular obstetrician. Tripoli was criminally prosecuted and pleaded no contest to a felony charge arising out of his molestation of plaintiff.

Plaintiff's suit named Tripoli, Hospital and others as defendants, and contained causes of action for professional negligence, battery and intentional and negligent infliction of emotional harm. In opposition to Hospital's motion for summary judgment, plaintiff maintained triable issues of fact existed as to whether Hospital was vicariously liable for the battery as a tort committed within the scope of Tripoli's employment, or was directly liable for its own negligence in failing to have a third person present during the examination. The superior court granted the summary judgment motion, rejecting both arguments.

The Court of Appeal reversed. The court relied only on the theory of respondeat superior and expressly declined to reach the question of Hospital's negligence. We granted Hospital's petition for review in order to decide the vicarious liability question.


I. Review of Pertinent Law on Respondeat Superior

The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967, 227 Cal.Rptr. 106, 719 P.2d 676.) 2 Equally well established,

[907 P.2d 361] if somewhat surprising on first encounter, is the principle that an employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even [12 Cal.4th 297] though the employer has not authorized the employee to commit crimes or intentional torts. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209, 285 Cal.Rptr. 99, 814 P.2d 1341; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447, 256 Cal.Rptr. 766, 769 P.2d 948; Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 654, 171 P.2d 5.) What, then, is the connection required between an employee's intentional tort and his or her work so that the employer may be held vicariously liable

It is clear, first of all, that California no longer follows the traditional rule that an employee's actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer's interests. (See Rest.2d Agency, § 228, subd. 1(c) [conduct must be "actuated, at least in part, by a purpose to serve the master"].) Our departure from that limiting rule dates at least from the leading case of Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652, 171 P.2d 5.

In Carr, this court held a building contractor liable for injuries caused when an employee, angry at a subcontractor's employee for interfering in his work, threw a hammer at the other worker's head. We rejected the defendant's claim its employee was not acting within the scope of employment because he "could not have intended by his conduct to further" the employer's interests: "It is sufficient, however, if the injury resulted from a dispute arising out of the employment.... 'It is not necessary that the assault should have been made "as a means, or for the purpose of performing the work he (the employee) was employed to do." ' " (28 Cal.2d at p. 654, 171 P.2d 5, quoting Hiroshima v. Pacific Gas & Elec. Co. (1936) 18 Cal.App.2d 24, 28, 63 P.2d 340, italics added; accord, Fields v. Sanders (1947) 29 Cal.2d 834, 839, 180 P.2d 684 [that tortious act "was not committed in order to further the interests of the principal" does not preclude vicarious liability]; Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 969, 227 Cal.Rptr. 106, 719 P.2d 676 ["The plaintiff need not demonstrate that the assault was committed for the purpose of accomplishing the employee's assigned tasks."]; Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d at p. 621, 124 Cal.Rptr. 143 ["[T]he 'motive test,' though still the 'majority rule,' has been abandoned in California."].) 3

While the employee thus need not have intended to further the employer's interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. This [12 Cal.4th 298] rule, too, can be traced to Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652, 171 P.2d 5. There the court acknowledged that "[i]f an employee inflicts an injury out of personal malice, not engendered by the employment, the employer is not liable." (Id. at p. 656, 171 P.2d 5, italics added.) We further explained that in the case under consideration the attack was, indeed, "an outgrowth" of the employee's work: "Not only did...

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