Maguire v. State, 91-313

• Citation: 835 P.2d 755, 49 St.Rep. 688, 254 Mont. 178
• Case Date: August 12, 1992
• Court: United States State Supreme Court of Montana

Page 755

835 P.2d 755

254 Mont. 178

Margaret MAGUIRE, individually and as Guardian of Mary

Margretta Glover, an Incapacitated Person and Baby

Glover, Plaintiffs and Respondents, v. The STATE of Montana, Montana Department of Institutions,

the Montana Developmental Center and Carroll V.

South, Director of Department of

Institutions, Defendants and Appellants.

No. 91-313.

Supreme Court of Montana.

Submitted March 10, 1992.

Decided Aug. 12, 1992.

Sam E. Haddon, argued, Boone, Karlberg & Haddon, Missoula, G. Curtis Drake, Keller, Reynolds, Drake, Sternhagen &amp Johnson, Helena, for defendants and appellants.

William P. Joyce, argued, Burgess, Joyce & Whelan, Butte, for plaintiffs and respondents.

McDONOUGH, Justice.

The State of Montana appeals a jury verdict in favor of Margaret Maguire, individually and as guardian of Mary Margretta Glover and from a judgment of the Second Judicial District Court, Silver Bow County. We affirm in part and reverse in part.

We address the following issues on appeal:

1. Whether the District Court erred in granting partial summary judgment and in directing a verdict that the State was liable for criminal conduct of an employee under Restatement (Second) of Agency § 214;

2. Whether the District Court erred in refusing the State's offer of proof, based on Rule 408, M.R.Evid., that Mrs. Maguire acknowledged that Ms. Glover was receiving good care at the Montana Developmental Center and that she should not be moved;

3. Whether the District Court erred in refusing to instruct on the theories of agency and negligent hiring;

4. Whether the District Court erred in allowing Mrs. Maguire to maintain an action in tort for emotional distress; and

5. Whether the District Court erred in refusing to reduce the jury's verdict.

In 1988, Mary Margretta Glover (Glover) an autistic and severely retarded patient at Montana Developmental Center (MDC), was assaulted and raped by an MDC employee, Lloyd Dean Drummond. Ms. Glover, age 43, has resided at what is now MDC since 1979. In 1988, MDC assigned Lloyd Drummond the primary responsibility for caring for Ms. Glover. His duties included bathing and dressing Ms. Glover.

Margaret Maguire (Maguire), Ms. Glover's mother and legal guardian, brought Ms. Glover home for weekend visits. During one of the visits, Ms. Glover laid flat on her back, spread her legs, and placed her knees up towards her shoulders. During another visit, Mrs. Maguire noticed Ms. Glover was gaining weight. Mrs. Maguire telephoned MDC personnel to question them about Ms. Glover's weight gain. She also inquired as to whether or not Ms. Glover was having regular menses. She was informed that Ms. Glover had missed her menses, but that it was probably due to thorazine treatment. However, MDC staff members also noticed Ms. Glover's weight gain and commented to the head nurse that they wished to be the first ones to tell Lloyd Drummond that he was going to be a father.

In November of 1988, a pregnancy test on Ms. Glover came back positive. Ms. Glover delivered the baby without incident in April of 1989. As Ms. Glover's legal guardian, Mrs. Maguire had to make decisions regarding her daughter's pregnancy. Fear that Ms. Glover's autism and retardation might be congenital made a decision to carry the pregnancy to term difficult. Further, Mrs. Maguire was concerned for her daughter's safety. As a devout Roman Catholic, making a decision to abort the pregnancy was also very difficult. Ultimately Mrs. Maguire decided to have the pregnancy carried to term. However, she faced another difficult decision in whether to raise the child herself or place the child in an adoptive home. In view of her advanced age, she finally decided to place the child with adoptive parents.

In December of 1988, Mrs. Maguire sought medical attention for stress and depression related to the rape and pregnancy of her daughter. Her physician, who previously treated Mrs. Maguire for depression and anxiety related problems, noted her stress had increased and that she had deteriorated "markedly." She complained of trouble sleeping, nightmares, contemplation of suicide, and generally feeling run down. Mrs. Maguire's visits to the doctor increased, and her condition did not begin to improve until April of 1989, but she continued to see a psychologist through 1990.

Our standard of review as to the verdict is whether there is substantial credible evidence in the record to support the jury verdict. In reviewing conclusions of law question of law, or legal components of ultimate facts, or mixed questions of law and fact, we will decide if the lower court's determination as to law is correct. The scope of review of discretionary acts of the trial court is whether the trial court abused its discretion. Our review will be plenary. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

I

Whether the District Court erred in granting partial summary judgment and directing a verdict holding the State liable for the criminal conduct of its employee, based on Restatement (Second) of Agency, § 214.

The District Court granted partial summary judgment and directed a verdict in favor of Mrs. Maguire and Ms. Glover on the issue of liability. The District Court based its decision on Restatement (Second) of Agency § 214. Section 214 is an exception to the general rule of respondeat superior. We have not heretofore adopted this section. This section provides:

Failure of Principal to Perform Non-delegable Duty.

A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance or such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty.

We have previously analyzed cases under the respondeat superior doctrine based on Restatement (Second) of Agency § 228. Respondeat superior imposes liability on an employer for the wrongful acts of an employee which are committed within the scope of his employment. As we stated in Kornec v. Mike Horse Mining (1947), 120 Mont. 1, 8, 180 P.2d 252, 256,

The servant or agent must have been acting in the "course of his employment," in "furtherance of his employer's interest," or "for the benefit of his master;" "in the scope of his employment," etc. But a servant who acts entirely for his own benefit is generally held to be outside the scope of his employment and the master is relieved of liability. (Citation omitted.)

See also Lutz v. United States (9th Cir.1982), 685 F.2d 1178.

A party may be held vicariously liable for the damages caused by another on the theory of respondeat superior or may be held directly liable on the theory of negligent hiring and/or supervision. Normally, an employer would not be held liable for tortious acts of its employee performed outside the scope of employment. Hoover v. University of Chicago Hospitals (1977), 51 Ill.App.3d 263, 9 Ill.Dec. 414, 418, 366 N.E.2d 925, 929. Thus, under respondeat superior, the employer's liability is derivative from the negligent acts of the employee acting within the scope of employment. Boykin v. District of Columbia (D.C.App.1984), 484 A.2d 560, 561. It is clear this rape was outside the scope of Lloyd Drummond's employment.

Other jurisdictions, under theories of vicarious liability, hold an employer liable for the tortious acts of its employees acting outside the scope of employment. These cases involve common carriers and innkeepers. In G.L. v. Kaiser Foundation Hospitals (1987), 88 Or.App. 528, 746 P.2d 731, 734, the Oregon Court of Appeals deferred to the legislature in declining to hold hospitals strictly liable for tortious acts of employees acting outside the scope of employment (sexual assault). The question of an employer's vicarious liability for the tortious acts of its employees acting outside the scope of employment is a matter of first impression in Montana.

Both appellant and respondent cite cases from other jurisdictions which produce opposite results. MDC relies on Rabon v. Guardsmark, Inc. (4th Cir.1978), 571 F.2d 1277. In Rabon, the Fourth Circuit held that neither South Carolina common law nor South Carolina statutes justify application of the non-delegable duty rule of § 214 to the employer of a security guard (rape). The Fourth Circuit found that South Carolina only recognized the non-delegable duty exception to the general rule of respondeat superior in cases involving common carriers. Rabon at 1280.

Mrs. Maguire relies on Stropes v. Heritage House Childrens Ctr. (Ind.1989), 547 N.E.2d 244, for her analysis that Montana should adopt the non-delegable duty exception to the respondeat superior doctrine. Stropes involves a similar fact situation. In Stropes a severely retarded fourteen-year-old boy was raped by a nurse's aide employed by Heritage House. The aide's duties included feeding, bathing, and changing the child. The rape occurred after the aide entered the boy's room to change his clothing and bedding. Stropes at 245.

The Indiana Supreme Court, in reviewing Indiana case law, found two cases which held employers liable for criminal acts of their employees, because the acts "originated in activities so closely associated with the employment relationship as to fall within its scope." Stropes at 247.

The Stropes court also distinguished Rabon. As noted above, the Fourth Circuit determined that South Carolina's non-delegable duty doctrine only extended to common carriers. Stropes at 250-251. However, as Stropes pointed out, Indiana has identified principles underlying its adoption of the exception, and, in fact, has extended it to reach enterprises other than common carriers. Stropes at 252. The Indiana Supreme Court concluded that the relevant relationships embodied in the common carrier exception, and the rationales underlying it, were applicable to Heritage. Stropes at 253-254.

Montana follows...