Rodebush By and Through Rodebush v. Oklahoma Nursing Homes, Ltd., 73340

CourtSupreme Court of Oklahoma
Citation867 P.2d 1241,1993 OK 160
Docket NumberNo. 73340,73340
PartiesGlen H. RODEBUSH, By and Through Zelda RODEBUSH, as guardian ad litem and next friend, Appellee, v. OKLAHOMA NURSING HOMES, LTD., Appellant.
Decision Date14 December 1993

Certiorari to the Oklahoma Court of Appeals, Division No. 2; Gordon R. Melson, Judge.

Certiorari granted to review the opinion of the Court of Appeals, Division 2, which affirmed the trial court. Appellant does not contest the assessed liability based on negligence. Appellant seeks reversal of the award for punitive damages. We hold: (1) that Appellant can be held liable for the intentional tort of its employee since the employee was acting to carry out a task assigned by the Appellant; (2) 23 O.S.Supp.1986 § 9 requires a finding by the trial judge as to whether there was clear and convincing evidence to lift the cap on damages, and that the trial court made such a ruling, based on that standard; and (3) the punitive damage award is constitutional because of the standards set both by the statutes and by the courts. AFFIRMED.


Michael G. Smith and James R. Scrivner, Smith, Shew & Scrivner, Ada, for appellee.

Tom E. Mullen and Ann M. Threlkeld, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, and Jack Mattingly, Mattingly & Snow, Seminole, for appellant.

SUMMERS, Justice:

The jury concluded that an intoxicated nurse's aide slapped an Alzheimer's patient in the face while bathing him, and awarded punitive damages in the sum of $1.2 million against the nursing home. The nursing home appeals. We affirm.

The defendant's theories on appeal are these: (1) as employer it must not be held responsible for the intentional tort of its employee; (2) there was no clear and convincing evidence, as required by statute, showing conduct that would allow open-ended punitive damages; and (3) the Oklahoma punitive damages regimen violates the defendant's right to due process under the federal Constitution.

Glen Rodebush, a victim of Alzheimer's disease, was a resident of the New Horizon Nursing Home. His condition caused him to sometimes be combative. New Horizon is owned by Oklahoma Nursing Homes, Ltd. On the day in question Rodebush's wife arrived at the nursing home around noon, and found large welts and red marks on Rodebush's face. She demanded that his physician be called and Rodebush was examined. The doctor offered his opinion that the red marks had been caused by slaps of a human hand and that the marks were between six and twelve hours old.

Earlier that morning Rodebush had been awakened and strapped into a chair for use in a whirlpool bath. No injuries to his face were observable at that time. A male nurse's aide wheeled him into the whirlpool bathroom and gave him the scheduled bath at approximately 6:30 A.M. The two were alone together for about thirty minutes. After the bath, the nurse's aide reported a "rash" on Rodebush's face. The supervisor was not present when the "rash" was reported because she was late to work. When the The nurse's aide had been hired by New Horizon without any background check, contrary to nursing home policy. A background check would have revealed the aide's prior conviction of a violent felony--assault and battery with intent to kill. He had also been convicted of escape and carrying a weapon after former conviction of a felony.

supervisor arrived, about thirty five minutes late, she confronted the aide and found him to smell of liquor. He told her he had "partied" all night and had only stopped the partying in time to come to work. The supervisor sent him home. He clocked out at approximately 7:30 a.m.

Furthermore, the records of the nursing home are void as to any training or instruction given to the aide prior to his assignment in the geriatrics ward. At trial, the head nurse testified that the aide had been given training, but that the documentation proving such training had been misplaced. She stated that she was positive he had been given training because all aides are given training before they start.

After the incident with Rodebush the aide was suspended for two days for working while intoxicated. Upon investigation by the Department of Human Services, the nursing home was found to be in violation of several regulations, and was reported for these violations. The violations included failure to properly train personnel, failure to follow in a timely manner the procedures for an intoxicated employee, failure to have a licensed nurse on duty at the time of the incident, and failure to notify the next of kin or the physician.

Zelda Rodebush, as guardian ad litem for her husband, brought suit against Oklahoma Nursing Homes, Ltd. 1 The suit alleged negligence in hiring practices and supervision of employees on the part of New Horizon, the intentional infliction of physical injury and emotional distress as to Mr. Rodebush and the intentional infliction of emotional distress as to Zelda Rodebush. At the conclusion of the defendant's case, the trial court dismissed the action for intentional infliction of emotional distress brought by Zelda, but refused to dismiss the claim of Glen Rodebush based on either negligence or wilful injury.

The trial court, outside the presence of the jury and pursuant to 23 O.S.Supp.1986 § 9, also made a finding that clear and convincing evidence showed that the conduct was wilful and wanton, and that the punitive damages in excess of the actual damages would be permitted. The jury returned a verdict in favor of the plaintiff Glen Rodebush on both theories of negligence and wilful misconduct 2, awarding him $50,000.00 Oklahoma Nursing Homes appealed and the Court of Appeals affirmed. In its brief, Oklahoma Nursing Homes specifically waives any arguments with regard to the jury's finding of liability based on negligence. It only seeks reversal of the finding that the defendant is liable for the intentional tort of its employee, and the subsequent award of punitive damages. We granted certiorari.

in actual damages and $1,200,000.00 in punitive damages.


The nursing home asserts that the trial court erred in holding that the nurse's aide was acting within his scope of employment. It claims that the aide's action of slapping Rodebush was against the nursing home's policy and had not been suggested as a method of blocking the combativeness of an Alzheimer's patient. On the other hand, plaintiff asserts that the aide was acting to further the business of the employer, and was performing a task assigned to him by the employer. The incident took place while the aide was bathing Rodebush.

As a general rule, it is not within the scope of an employee's employment to commit an assault upon a third person. Hill v. McQueen, 204 Okl. 394, 230 P.2d 483, 485 (1951); see also Tulsa General Drivers, Warehouseman and Helpers Union v. Conley, 288 P.2d 750, 753 (Okla.1955); Cooley on Torts, 4th Ed. §§ 392, 393 (1932). However, this general rule does not apply when the act is one which is "fairly and naturally incident to the business", and is done "while the servant was engaged upon the master's business and be done, although mistakenly or ill advisedly, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business." Russell-Locke Super-Service Inc. v. Vaughn, 170 Okl. 377, 40 P.2d 1090, 1094 (1935); See Ada-Konawa Bridge Co. v. Cargo, 163 Okl. 122, 21 P.2d 1, 7 (1933). An employee's act is within the scope of employment if it is incident to some service being performed for the employer or arises out of an emotional response to actions being taken for the employer. Id.; Brayton v. Carter, 196 Okl. 125, 163 P.2d 960, 962 (1945) (automobile accident held to be within scope of employment even though the accident occurred on a route that was twenty-eight miles out of the way); Corn v. City of Sapulpa, 188 Okl. 418, 110 P.2d 290, 291 (1941) (the petition properly withstood a demurrer based on the fact that the employee could have been acting within the scope of his employment even though he made an illegal u-turn while assigned to a task for his employer). In such an instance, an employer can be held liable even if the employee acts beyond the given authority. Patsy Oil & Gas Co. v. Odom, 186 Okl. 116, 96 P.2d 302 (1939) (employer held responsible for the employee's taking of dynamite caps to an oil and gas well even though employer had not authorized the use of dynamite on the rig). It is the burden of the plaintiff to show that the employee was acting within the scope of his employment. Oklahoma Railway Co. v. Sandford, 258 P.2d 604, 607 (Okla.1953).

In Mistletoe Express Serv. v. Culp, 353 P.2d 9 (Okla.1959), this Court held an assault on customer by a truck driver to be within the scope of employment. The truck driver, a man of violent tendencies, was sent to deliver a television tube to a customer. The customer refused the tube, claiming that it had been damaged. The driver returned it to the employer. The employer declined to pay for the damage and directed that the tube be re-delivered to the customer. During the course of this second attempt to deliver the item, a fight ensued and the customer was injured. Looking to Hill v. McQueen, this Court stated that the rule of "scope of employment" must be considered on an individual basis. Id. at 15. We observed that in order for an employer to be responsible for the tortious acts of its employee, it must be shown that the act giving rise to the complaint "was done for the purpose Similarly, in Russell-Locke, we held that an employer could be held liable for the damages caused by an assault by an employee. There, the employer sold storage batteries. After failing to receive payment from a customer, the employer sent an...

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