OUR LADY OF PEACE, INC.
BARBARA MORGAN, ADMINISTRATOR OF THE ESTATE OF GERTRUDE AUSTIN, DECEASED, ET AL.
THE CIRCUIT COURT OF ALBEMARLE COUNTY CHERYL V. HIGGINS,
ARTHUR KELSEY JUSTICE.
nursing assistant molested and raped an 85-year-old resident
at a nursing home. The administrator of the resident's
estate sued the nursing assistant and the nursing home. The
jury returned a verdict against both defendants. On appeal,
the nursing home argues that the trial court erred in
holding, prior to trial (and also by instructing the jury at
trial), that the nursing assistant had committed the
molestation and rape while acting within the scope of his
employment. The nursing home also contends that the trial
court made erroneous evidentiary rulings regarding the
admissibility of expert testimony. For the reasons that
follow, we reverse the final judgment and remand the case for
2015, the Administrator of the Estate of Gertrude Austin
("the Estate") filed a complaint against a nursing
assistant, Martin Matthews Martin, and Our Lady of Peace,
Inc., the nursing home at which Martin worked. In 2013,
Austin was a resident at Our Lady of Peace. At that time,
"she was weak, ill, partially paralyzed, helpless, and
unable to cry out for help." 1 J.A. at 2. As a nursing
assistant, Martin's duties included, among other things,
undressing residents, changing their undergarments and
diapers, as well as bathing them. See id. To perform
these tasks, Martin had access to the residents' rooms
and could pull a privacy curtain around a resident while
performing his duties.
morning in August 2013, Martin "entered Gertrude
Austin's room and undertook to provide care to her with
the door closed and the privacy curtains drawn, with no one
else present in the room except Gertrude Austin's
disabled roommate." Id. at 3. At that time,
Austin was bedridden, non-communicative, and nourished by a
feeding tube. Martin allegedly entered the room with the
intent to perform his assigned duties. See id. Once
there, while "performing his duties . . . in
the course and scope of his employment . . ., Martin engaged
in wrongful conduct that included, but was not limited to,
raping" Austin as she lay incapacitated on her bed.
Id. (emphasis added). In addition to rape,
Martin's wrongful conduct included "acts of
touching, sexually abusing, and molesting" Austin.
Id. at 4. At some point, another employee entered
the room, briefly observed some aspect of this conduct, and
later (how long was in dispute) reported what she saw to an
Estate filed suit against Martin and Our Lady of
Peace. Against Our Lady of Peace, the Estate
asserted various theories of recovery: (i) vicarious
liability under respondeat superior principles for
Martin's assault and battery; (ii) negligent hiring and
retention of Martin; (iii) negligent operation of the nursing
home; (iv) special-relationship liability arising out of Our
Lady of Peace's negligent failure to protect Austin from
sexual assault; (v) negligence liability arising out of an
assumption of tort duties; and (vi) negligent training,
management, and supervision of Our Lady of Peace's
employees. The Estate also sought punitive damages.
Our Lady of Peace's responsive pleadings was a plea in
bar challenging the Estate's allegations of respondeat
superior liability for Martin's molestation and rape of
Austin. At the plea-in-bar hearing, Our Lady of Peace called
its Executive Director as its only witness. She offered no
testimony or documentary evidence describing any factual
aspect of Martin's molestation and rape of Austin.
Instead, she generally described Our Lady of Peace's
policies and practices, the regulations to which it was
subject, the role of nursing assistants, Martin's
employment record, and the medical and daily-activity
assistance provided to Austin.
Estate offered no testimony or evidence during the
plea-in-bar hearing. Regarding Our Lady of Peace's plea
in bar, the Estate took the position that, though the
pleading "ha[d] been filed as a plea in bar, . . .
essentially it is a demurrer." Id. at 174.
"There have been no facts provided through the
plea in bar," the Estate argued, "other than Our
Lady of the Peace has regulations that they have to
follow." Id. (emphasis added). "It just
doesn't follow," the Estate continued, that Martin
was acting outside the scope of his employment simply because
he "didn't follow those regulations."
Id. The Estate repeated this point during oral
argument on appeal, conceding that "what was alleged in
the complaint . . . was all the evidence that was before the
court on the plea in bar" on the disputed issue of
vicarious liability. Oral Argument Audio at 16:24 to 16:30;
see also Appellee's Br. at 6-7, 21, 28-29
(describing the absence of evidence and Our Lady of
Peace's concession on the issue).
argument was the Estate's main focus at the plea-in-bar
hearing: "[O]ur allegation is that [Martin] was in the
course and scope of the employment" and "that the
burden then shifts to the defense to put on evidence that he
was beyond the course and scope, and that that is a jury
issue." 1 J.A. at 174 (emphasis added). Virginia
law, the Estate insisted, "has been clear that it's
a jury issue, whether or not it's course and scope,"
which is why the trial court should "allow the case to
proceed to the jury." Id.; see also
id. at 175 (arguing that "if the evidence leads to
question and doubt," the scope-of-employment issue
"becomes an issue to be determined by the jury"
(citation omitted)). "I submit to you," counsel
advised the trial court, "all we needed to do was plead
that [Martin] was an employee and in the course and scope of
his employment. And then the burden is shifted for the
defense to convince a jury why he was not in the course and
scope." Id. at 175. "So that's our
position," counsel concluded. Id.
plea-in-bar hearing, the trial court seemed to agree with the
Estate, asking from the bench after counsel for Our Lady of
Peace had described Martin's services as ending before
the rape, "And for the plea in bar, how do I know
that?" Id. at 172. The court then took the plea
in bar under advisement. Four months later, the court issued
an order denying the plea in bar along with a letter opinion
explaining that it was "rul[ing] based upon the
rational[e] provided in" Plummer v. Center
Psychiatrists, Ltd., 252 Va. 233 (1996), an opinion
reversing a trial court's grant of a demurrer and
directing that the disputed scope-of-employment issue be
resolved by the jury on remand. See 1 J.A. at 107.
While citing Plummer, however, the trial court
appeared to go beyond the holding in that case by ruling on
the merits that "Martin's willful and malicious acts
were committed while he was performing duties at Our Lady of
Peace and in execution of those services for which he was
order, which the Estate had proffered, expressly repeated
that "Martin's acts were committed while he was
performing duties of Our Lady of Peace and in execution of
those services for which he was employed," id.
at 207. The order also contained this sentence: "The
[c]ourt finds that Mr. Martin was in the course and scope of
his employment when he committed the rape of Mrs.
Austin." Id. Our Lady of Peace objected to this
sentence in part because it was "not in the judge's
letter opinion." Id. at 204. In response, the
court crossed out this sentence "just to make sure that
the [c]ourt follows the language that was set forth in the
opinion letter," id., while leaving in the
near-verbatim quotation from that prior letter opinion.
See id. at 207. The pertinent portion of the order
As to that Plea in Bar, the [c]ourt heard evidence and
argument and finds that Mr. Martin's acts were committed
while he was performing duties of Our Lady of Peace and in
execution of those services for which he was employed.
The Court finds that Mr. Martin was in the
course and scope of his employment when he committed the rape
of Mrs. Austin.
to trial, the Estate filed a motion in limine and argued that
the trial court should preclude Our Lady of Peace from
presenting any evidence challenging the respondeat superior
finding. According to the Estate, the trial court had held,
in its plea-in-bar ruling, that "the issue of course and
scope of employment ha[d] been decided," and therefore,
Our Lady of Peace should be precluded "from presenting
any evidence inconsistent with the [c]ourt's
ruling." Id. at 117. Taking a position opposite
to the one that it had taken at the plea-in-bar hearing, the
Estate insisted that the scope-of-employment question did not
involve an issue of fact for the jury. "It is
disingenuous," the Estate argued, "for [Our Lady of
Peace] to now claim the issue should be decided by a jury
simply because it disagrees with the [c]ourt's ruling on
the matter." Id. at 118. The Estate did not
explain how the trial court could have decided the
scope-of-employment issue without having heard any evidence
reply, Our Lady of Peace correctly recalled that, before the
plea-in-bar hearing, the Estate had taken the position
"that whether Mr. Martin's conduct is within the
scope of employment is a jury issue that cannot be decided by
the court." Id. at 123. "On brief,"
the Estate had contended "that a defendant's failure
to meet the burden of proof requires the scope of employment
issue to be heard by a jury." Id.
trial court granted the motion in limine, holding that the
scope-of-employment issue had been properly before the court
at the plea-in-bar hearing, was ripe for the trial court to
decide pretrial, and thus, was not a question of fact for the
jury. The court barred Our Lady of Peace from presenting any
evidence at trial suggesting that Martin had acted outside
the scope of his employment when he molested and raped
Austin. The trial court explained: "[T]he [c]ourt finds,
on the merits, and as a clarification of its prior ruling,
that . . . Martin's acts were committed within the course
and scope of his employment with [Our Lady of Peace]."
Id. at 211. Like the Estate, however, the court
never explained how it could have decided a dispute
concerning vicarious liability on the merits by relying
solely on the allegations of a complaint.
the Estate had filed an amended complaint that contained
counts of vicarious liability against Our Lady of Peace for
assault and battery, vicarious liability against Our Lady of
Peace for negligence in caring for and protecting Austin, and
direct liability against Our Lady of Peace for negligence in
caring for and protecting Austin, the case proceeded to a
jury trial. True to its "clarification,"
id., the trial court enforced its ruling on the
motion in limine by precluding Our Lady of Peace from
presenting evidence contesting vicarious liability. To ensure
that the jurors understood that vicarious liability was not a
factual issue for their consideration, the court gave a jury
instruction stating that the matter had been resolved prior
In order to recover against Our Lady of Peace for Martin
Matthews Martin's acts or omissions, the plaintiff
has the burden of proving by the greater weight of the
evidence that Martin Matthews Martin was an
employee of Our Lady of Peace; that [he] . . .
committed a battery and/or assault while acting within
the scope of his employment; and that this . . . battery
and/or assault proximately caused damage to Gertrude Austin.
The [c]ourt has determined that Martin Matthews Martin
was an employee of Our Lady of Peace and was acting within
the scope of his employment.
Id. at 334 (emphases added). At trial, however,
facts bearing on the vicarious liability issue were presented
because they were relevant to Martin's personal
liability. For example, Martin's confession in his
criminal case was introduced into evidence. Aspects of this
confession would have been relevant to the
scope-of-employment issue if the trial court had not decided
the issue prior to trial.
trial court also made two evidentiary rulings that Our Lady
of Peace contests on appeal. First, it excluded testimony
from a licensed nursing-home administrator who Our Lady of
Peace had offered "as an expert in standard of care for
skilled nursing facilities in relation to employment issues
and dealing with staff care issues and training, and those
matters," 2 id. at 648-49. The court found that
the expert did not have an "active clinical
practice" as required by Code § 8.01-581.20(A)
because supervising and administering a nursing home does not
constitute a clinical practice.
the trial court refused to exclude testimony by the
Estate's expert to the effect that Martin's actions
had violated the standard of care governing nursing
assistants. Among other things, Our Lady of Peace argued that
the expert should not be allowed to testify on such matters
because they were within the common knowledge of the jury.
The court held that the proposed testimony was within the
jurors' common knowledge but nonetheless held that the
expert would be allowed to testify on these matters.
See 2 J.A. at 446-48.
end of trial, the parties proposed a general verdict form
that did not make any distinction between the
direct-negligence claim against Our Lady of Peace and the two
vicarious liability claims against Our Lady of Peace. When
the trial court questioned counsel about the verdict form,
counsel for the Estate confirmed that offering a general
verdict form "was an intentional decision" and that
the verdict form was an "agreed upon verdict form."
Id. at 697. Counsel for Our Lady of Peace said
nothing to contradict this assertion.
jury deliberations, the jurors presented a handwritten
question to the court: "Is an employer equally liable as
the employee when the employee engages in a criminal
act?" Id. at 698. The court answered by
referring the jury to the previously given instructions.
Using the general verdict form, the jury found Our Lady of
Peace and Martin liable and awarded the Estate $1, 750, 000
in damages. After a round of unsuccessful post-trial motions
by Our Lady of Peace and Martin, the trial court entered
final judgment against them pursuant to the jury verdict.
Both Martin and Our Lady of Peace filed petitions for appeal.
We granted only Our Lady of Peace's petition.
Respondeat Superior Liability for Martin's Conduct
appeal, Our Lady of Peace first argues that the trial court
erred in holding, based solely upon the allegations of the
original complaint, that Martin had committed the molestation
and rape within the scope of his employment. In Parker v.
Carilion Clinic, we restated the short-form version of
the doctrine of respondeat superior: "[A]n employer is
liable for the tortious act of his employee if the employee
was performing his employer's business and acting within
the scope of his employment." 296 Va. 319, 335 (2018)
(citation omitted). We also observed that the
"low-resolution" nature of this axiom leads to
"'difficulties' in its application" and
often presents "conceptually 'vexatious'"
and "perplexing" questions. Id. (citations
omitted). Acknowledging these criticisms, we sought to
recapture the "first principles" of respondeat
superior and to eliminate some of the "doctrinal
vagaries" that had crept into our jurisprudence on this
issue, id. at 336 (citation omitted).
Virginia," we explained, "the first principle of
respondeat superior is that vicarious liability may be
imposed on an employer when 'the service itself,
in which the tortious act was done, was within the ordinary
course of the employer's business, '" meaning
"when the employee committed the tort while
'performing a normal function' of his assigned
job." Id. (emphasis in original) (alteration
and citation omitted). "We have consistently applied
this test in our jurisprudence." Id. (citation
To put the matter succinctly, "the doctrine of
respondeat superior applies only when the relation of master
and servant is shown to exist between the wrongdoer and the
person sought to be charged for the result of some neglect or
wrong at the time and in respect to the very transaction
out of which the injury arose." Under this
job-related-service principle, while it is true that
vicarious liability "is not limited to those acts of the
servant which promote the object of the employment," it
is equally true that no such liability can be imposed if the
tortious act did not arise out of the "very
transaction," or service or task, that the employee was
being paid to perform.
Id. at 336-37 (emphasis in original) (alteration and
citations omitted). In our leading cases, "the tortious
act or transaction occurred while the employee was
in fact performing a specific job-related service
for the employer, and, but for the employee's wrongdoing,
the service would otherwise have been within the authorized
scope of his employment." Id. at 338 (emphases
in original). "It simply is not enough . . . that the
claim 'arose out of an activity which was within the
employee's scope of employment or within the ordinary
course of business.'" Id. at 339 (emphasis
and citation omitted). "Instead, the employee must have
committed the tort while actively engaged in a
job-related service." Id. (first
Parker, we emphasized that "[t]he
employee's motive in committing the tortious act plays a
role in the job-related-service doctrine." Id.
at 340. "For nearly a century, we have stated that
respondeat superior liability cannot extend to an employer
for an unauthorized tortious act by an employee arising
'wholly from some external, independent, and
personal motive on the part of the employee to do the act
upon his own account.'" Id. (emphasis in
original) (alteration and citations omitted). "Though
our application of this concept has been less than
consistent, our adherence to the underlying principle has not
motive inquiry is not novel or unusual. It "tracks
analogous requirements in the second and third Restatements
of Agency," which "[b]oth make clear that a
servant's tortious act 'is within the scope of
employment if, but only if[, ] it is actuated, at least
in part, by a purpose to serve the master'" and
that "an employee's act is not within the scope of
employment when it occurs within an independent course of
conduct not intended by the employee ...