Taylor v. Doctors Hosp. (West), 83AP-625

• Decision Date: 19 February 1985
• Docket Number: No. 83AP-625,83AP-625
• Citation: 21 Ohio App.3d 154,21 OBR 165,486 N.E.2d 1249
• Parties: , 21 O.B.R. 165 TAYLOR et al., Appellants, v. DOCTORS HOSPITAL (WEST) et al., Appellees.
• Court: Ohio Court of Appeals

Page 154

21 Ohio App.3d 154

486 N.E.2d 1249, 21 O.B.R. 165

TAYLOR et al., Appellants, v. DOCTORS HOSPITAL (WEST) et al., Appellees.

No. 83AP-625.

Court of Appeals of Ohio, Tenth District, Franklin County.

Feb. 19, 1985.

Syllabus by the Court

Under the doctrine of respondeat superior an employer is not liable for the intentional, malicious acts of an employee performed while the employee is acting outside the scope of his or her employment.

Karam & Feinstein and Michael J. Fusco, Columbus, for appellants.

Graham, Dutro & Nemeth, H.C. Dutro, Jr., and Maryellen Spirito; Lane, Alton & Horst, Jack R. Alton and Thomas A. Dillon, Columbus, for appellees.

MOYER, Judge.

This matter is before us on the appeal of plaintiffs-appellants, G. Frances Taylor and her husband, Charles E. Taylor, from a judgment of the Franklin County Court of Common Pleas. The trial court directed a verdict in favor of defendant, Doctors Hospital, on the issue of respondeat superior, and rejected the Taylors' request for a jury instruction on punitive damages, submitting the case to the jury on the theory of negligence alone. The jury returned a verdict in favor of Doctors Hospital.

On October 30, 1980, Mrs. Taylor was admitted to Doctors Hospital after having been injured in an automobile accident. Her course of treatment included physical therapy, medication and traction. Mark Glover was a radiation orderly in Doctors Hospital at that time. His duties consisted primarily of transporting patients to and from the radiology department. His working hours were usually from 6:30 a.m. to 2:30 p.m., during which times he wore the usual white hospital uniform.

On November 4, 1980, Glover entered Taylor's hospital room. Taylor testified that Glover was at that time wearing his hospital uniform; that he offered to give her a massage; that she believed that Glover was from the physical therapy department and that she therefore consented to a massage; that Glover instead committed sexual assault and sexual battery upon her, having first pulled a drape around her bed; and that Glover subsequently threatened her with words and gestures.

Three days after the incident and following an investigation by hospital personnel, Glover was discharged from his employment.

Taylor's hospital roommate testified at trial that she had witnessed the entire incident; that Glover was wearing street clothes at the time instead of his hospital uniform; and that Taylor appeared to be a willing and active participant in the sexual contact which then occurred, rather than the victim of a sexual assault.

Mrs. Taylor raises the following two assignments of error in support of her appeal:

"I. The trial court erred, as a matter of law, in sustaining appellee's motion for a direct [sic ] verdict on the issue of respondeat superior since there was ample evidence in the record, upon which reasonable minds could have concluded such issue in favor of plaintiffs.

"II. The court erred in not permitting the jury to consider the issue of punitive damages against Doctors Hospital."

In her first assignment of error, Taylor asserts that the trial court did not properly apply the standard for a directed verdict. This test is set forth in Civ.R. 50(A)(4) and reads as follows:

"When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."

Mrs. Taylor claims that there was, in fact, substantial competent evidence in the record upon which reasonable minds could draw different conclusions. This argument is unpersuasive because the directed verdict disposed of the sole issue of the potential liability of Doctors Hospital under the theory of respondeat superior. Therefore, the only evidence to be considered by the court at that time was evidence bearing upon the question of whether Glover was acting within the scope of his employment at the time of the alleged incident. The conflicting evidence as to whether Glover committed assault and battery upon Taylor, or whether she consented to the incident at that time is not important to that issue.

Taylor declares that the trial court misapplied Ohio law on the issue of respondeat superior, by interpreting the law to hold that an employer is never liable for the intentional tort of an employee. She cites the remarks of the trial court to the effect that the evidence indicated that Glover's acts were either intentional battery, assault and intimidation, or part of a consensual endeavor; and that in either case the hospital would not be liable. It does not appear that the trial court intended that an employer should never be liable for the intentional tort of an employee; rather, that such liability should be limited to situations in which the intentional tort is within the...