Nelson v. Gillette

• Decision Date: 06 November 1997
• Docket Number: No. 960371,960371
• Citation: 571 N.W.2d 332
• Parties: Twila NELSON, Plaintiff and Appellant, v. Vince GILLETTE, individually, Defendant, and Kidder County, a North Dakota Political Subdivision, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 332

571 N.W.2d 332

1997 ND 205

Twila NELSON, Plaintiff and Appellant, v. Vince GILLETTE, individually, Defendant and Kidder County, a North Dakota Political Subdivision Defendant and Appellee.

Civil No. 960371.

Supreme Court of North Dakota.

Nov. 6, 1997.

Rehearing Denied Dec. 2, 1997.

Keith L. Miller, Miller, Norman & Associates, Moorhead, for plaintiff and appellant.

Scott K. Porsborg (argued) and Daniel L. Hovland (on brief), Smith Bakke Hovland & Oppegard, Bismarck, for defendant and appellee.

MESCHKE, Justice.

¶1 Twila Nelson appealed a summary judgment dismissing all her claims against Kidder County for her sexual abuse by Vince Gillette, who was a licensed social worker for the County. We affirm dismissal of the vicarious-liability claim, but we reverse and remand the negligent-supervision claim for trial.

¶2 Beginning in 1975, members of the dysfunctional Nelson family, including Twila, born August 10, 1973, became clients of Kidder County Social Services. When Twila was age sixteen in February 1990, the Juvenile Court placed her temporary custody with the Kidder County Social Services as a deprived child, and the County put her in foster care. Twila was moderately developmentally-disabled, but had enrolled in the public school system and eventually received a special-education high-school diploma. The County assigned Gillette as Twila's social worker for case management and for counseling "to overcome emotional problems" while in foster care.

¶3 During counseling sessions in his office, his car, Bismarck's Pioneer Park, and her mother's home, Twila claims she was sexually abused by Gillette, including oral sex and intercourse. Twila alleges Deborah Abbott, the Kidder County Social Services Director, knew of Twila's mental handicap, her past experiences with sexual abuse, and her psychological history of sexual promiscuity from Gillette's reports, and thus she should have been alerted to the potential for Twila's sexual exploitation. In her deposition, Abbott conceded she had read the reports and knew Twila's case history, but denied suspecting Gillette was sexually abusing Twila. Abbott testified it was not unusual for counseling sessions to take place in parks, and that she had known Gillette was transporting Twila "back and forth to Bismarck and Steele" to visit her mother: "She'd drop her suitcase off in the morning [at Gillette's office next to Abbott's] on the way to school."

¶4 Twila's foster care ended on her eighteenth birthday in August 1991, when she left Kidder County and moved to Bismarck to live with her mother. Gillette continued contacts with Twila, often giving her rides between Bismarck and Steele to enable her to visit family. In late 1991 or early 1992, Twila told a friend about her relationship with Gillette. The allegations came to Abbott's attention near January 17, 1992. Abbott then instructed Gillette, for his own good, to stop giving Twila gratuitous rides.

¶5 Abbott soon discussed the situation with Catherine Nelson, Twila's mother. Abbott then informed her supervisor, Rita Weisz of the West Central Human Service Center, and also notified the Bismarck Police Department who investigated. The police discovered evidence of sexual abuse, but Gillette was never criminally prosecuted. In late 1993, the Board of Social Work Examiners revoked Gillette's license for his conduct with Twila.

¶6 In 1994, Twila sued Gillette and Kidder County, alleging the County was vicariously liable for Gillette's abusive conduct within the scope of his employment, and alleging the County negligently hired and supervised him. In return for confession of judgment by Gillette for $250,000.00, Twila released him by agreeing to forego collection from him and instead to seek recovery from Kidder County.

¶7 The County moved for summary judgment. In her response, Twila conceded the County was entitled to summary judgment on her negligent-hiring claim because there was no evidence of prior misconduct by Gillette, and the trial court granted summary judgment to the County on Twila's claims of negligent supervision and vicarious liability.

¶8 In this appeal, Twila challenges the trial court's conclusions, as a matter of law, that there was no evidence to show the County negligently supervised Gillette, and that Gillette's abusive conduct was outside the scope of his employment. We affirm in part, reverse in part, and remand for trial on the negligent-supervision claim.

I Standard of Review

¶9 Summary judgment is a procedure for promptly disposing of a lawsuit without a trial. Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996). Summary judgment is proper only if, after viewing all the evidence in a light most favorable to the non-moving party, no genuine dispute of material fact exists, and the only remaining question is one of law. See NDRCivP 56(c); P.E. v. W.C., 552 N.W.2d 375, 380 (N.D.1996); Richmond v. Nodland, 552 N.W.2d 586, 588 (N.D.1996). As we explained in Opp v. Matzke, 1997 ND 32, p 6, 559 N.W.2d 837, after review of the evidence in the light most favorable to the non-moving party, we will not reverse a summary judgment unless we conclude a genuine dispute of material fact exists, or the non-prevailing party is entitled to judgment as a matter of law.

II

Vicarious Liability

A.

¶10 Nelson argues the County should be vicariously liable for Gillette's actions. Vicarious liability is often called imputed liability or "respondeat superior," the legalistic Latin phrase for "let the principal answer," a legal maxim that embodies the principle of vicarious liability. Bryan Garner, Modern Legal Usage, p. 764 (2d ed.1995). Respondeat superior is a longstanding doctrine in this state's jurisprudence. Binstock v. Fort Yates Pub. Sch. Dist., 463 N.W.2d 837, 841-42 (N.D.1990) (citing Rickbeil v. Grafton Deaconess Hosp., 74 N.D. 525, 23 N.W.2d 247, 260 (1946)). Respondeat superior and vicarious liability are the same concept. See 1 Modern Tort Law §§ 7.01 & 7.02 (Rev.Ed.1994). As we explained in Binstock at 842, the doctrine means an employer is liable for tortious acts of its employees committed while they are acting within the scope of employment.

¶11 On Twila's vicarious-liability claim, the trial court concluded Gillette acted outside the scope of his employment. Although the trial court understood the "alleged acts did occur during business hours and at business-related locations," the court believed Gillette's employment "was not such that sexual activity with clients is a likely result[,]" and saw no evidence "the purposes of Kidder County were being served by the alleged actions of Gillette, nor that Gillette thought he was serving the purposes of Kidder County in his alleged actions." (Footnote omitted). Because the court concluded Gillette's actions were outside the scope of his employment, the court held the County could not be vicariously liable, and granted summary judgment.

¶12 Political subdivisions are vicariously liable for tortious actions of their public employees. Binstock, 463 N.W.2d at 842. In the aftermath of Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D.1974)(abolishing governmental immunity of political subdivisions) the legislature codified that vicarious liability:

Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee's employment or office under circumstances where the employee would be personally liable to a claimant in accordance with the laws of this state....

NDCC 32-12.1-03(1). In a general way, this statute makes the liability of political subdivisions the same as the liability of private citizens. Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505, 508 (N.D.1987). Of course, absent a specific statute to the contrary, public employees acting within the scope of employment have long been individually liable for the injuries they cause, just like private employees have been liable for the same or similar acts. E.g., Spielman v. State, 91 N.W.2d 627, 630 (N.D.1958)(governmental immunity did not protect an employee of the government from liability for negligent acts). Thus, while political subdivisions' employees can be liable for torts in the scope of their employment, NDCC 32-12.1-03(1) confirms that the political subdivisions are vicariously liable for them, too.

B.

¶13 To grasp what conduct is within the "scope of employment" for vicarious liability, we must assess the meaning of that phrase. "Scope of employment" is not defined in NDCC ch. 32-12.1. The American Law Institute has restated the meaning assigned by case precedents generally:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to

perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency, § 228 (1958). Kidder County urges us to use the last fragment of this factored definition, which is sometimes called the "motivation-to-serve" test.

¶14 The Restatement's "motivation-to-serve" test considers "[a]n act of a servant ... not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed." Id. at § 235. Under this theory, if the employee's actions do not properly further the employer's expectations, the employee's actions are not within the scope of the employment. The County cites numerous precedents...