Perkins v. Dean

• Decision Date: 28 September 1990
• Citation: 570 So.2d 1217
• Parties: Roberta J. PERKINS and John W. Perkins v. Almus Larry DEAN and Northwest Alabama Regional Mental Health Center. 89-976.
• Court: Alabama Supreme Court

Page 1217

570 So.2d 1217

Roberta J. PERKINS and John W. Perkins v. Almus Larry DEAN and Northwest Alabama Regional Mental Health Center.

89-976.

Supreme Court of Alabama.

Sept. 28, 1990.

James A. Hall of Parsons & Hall, Tuscaloosa, for appellants.

William J. Donald and William J. Donald III of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellees.

SHORES, Justice.

The plaintiffs, Roberta J. and John W. Perkins, appeal from a summary judgment for the defendants, Almus Larry Dean and Northwest Alabama Regional Mental Health Center, on claims of outrage, malpractice, and negligent supervision. We affirm.

Viewed most favorably to the plaintiffs, the depositions supporting the summary judgment motion tended to show the following:

In January 1987, John Perkins, experiencing grief over the suicide of his daughter, began counseling sessions with Almus Larry Dean, who, at the time, was a social worker employed by the Northwest Alabama Regional Mental Health Center (hereinafter referred to as "Northwest"). John Perkins was also drinking alcohol excessively and experiencing marital difficulties, afflictions for which he also sought treatment from Dean and Northwest.

John's wife, Roberta Perkins, also began counseling sessions with Dean, for similar problems, shortly after John Perkins began his counseling. Counseling sessions for the Perkinses, both individually and as a family, continued until August 11, 1987. Dean resigned from Northwest effective October 1, 1987. In total, there were 30 counseling sessions between Dean and the Perkinses.

During a counseling session in July 1987, Roberta Perkins told Dean that she wanted to have an affair with him. Dean responded by explaining to her the concept of transference, ¹ but also requested that Perkins "check back with me [Dean] later and we'll see how it is between my wife and [me] and you and your husband." (Roberta Perkins's deposition, p. 27.) This was the only mention of an affair during the time that Dean was counseling Roberta Perkins.

Following his resignation from Northwest, Dean continued contact with the Perkinses socially, based on the common interests of Dean, his wife, and the Perkinses in Alcoholics Anonymous and Alanon. The Perkinses visited in the home of Dean and his wife, with some visits culminating in all four persons' spending time together in a hot tub.

In January 1988, Roberta Perkins and Dean began having an affair. That affair ended in September 1988.

I. Malpractice claim

Assuming, without deciding, that a claim for social worker malpractice would be recognized in this State, the facts of this case do not support such a claim, and if they did, the statute of limitations would bar the claim. See generally, Doe v. Hall, No. 86-HM-5167 (N.D.Ala., Feb. 12, 1987), Doe v. Swift, 570 So.2d 1209 (Ala.1990), and Handley v. Richards, 518 So.2d 682 (Ala.1982).

In the two cases cited by the appellants in support of their malpractice claims, Horak v. Biris, 130 Ill.App.3d 140, 85 Ill.Dec. 599, 474 N.E.2d 13 (1985), and Cotton v. Kambly, 101 Mich.App. 537, 300 N.W.2d 627 (1980), the sexual intercourse involved occurred during the course of an ongoing, professional counselor-patient relationship. In this case, the sexual encounter took place after the professional relationship between Roberta Perkins and Dean had ended and after Dean had resigned from Northwest. The Perkinses argue that when the actual intercourse took place is not relevant, for the gravamen of their petition is that Dean and Northwest did not properly treat them and that as a result they were injured. They cite Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968), in support of this argument. In that case, the acts of the defendant were all committed under the premise of therapy and counseling while the plaintiff was still under the care of the defendant. The sexual relations between Dean and Roberta Perkins were not commenced in the furtherance of any therapy or treatment and did not occur within the shadow of any professional relationship. The sexual encounters occurred in a purely social context.

Accordingly, Northwest is not liable for Dean's actions under the doctrine of respondeat superior. When Dean had sex with Roberta Perkins, he was not employed by or associated with Northwest in such a way that a master/servant relationship existed (Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6 (1939), as cited in Scott v. Great Atlantic & Pacific Tea Co., 338 F.2d 661, 662 (5th Cir.1964) (applying Alabama law)), nor did the intercourse take place within the line or scope of Dean's employment with Northwest. Beasley v. Schuessler, 519 So.2d 551, 553 (Ala.Civ.App.1987).

II. Outrage claim

An action based on the tort of outrage requires proof that: (1) the actor intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from his conduct; (2) the conduct was extreme and outrageous; and (3) the distress was severe. Harris v. McDavid, 553 So.2d 567, 569, citing U.S.A. Oil, Inc. v. Smith, 415 So.2d 1098, 1100 (Ala.Civ.App.1982), cert. denied, 415 So.2d 1102 (Ala.1982). With respect to the conduct, this Court has stated that the conduct must be "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." American Road Service Co. v. Inmon, 394 So.2d 361, 365 (1981) (citing Restatement (Second) of Torts, § 46, comment d (1948)). While it may be said that society frowns upon extra-marital relationships, to claim that the conduct and actions in ...