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Our Lady of Peace, Inc. v. Morgan

Supreme Court of Virginia

August 30, 2019

OUR LADY OF PEACE, INC.
v.
BARBARA MORGAN, ADMINISTRATOR OF THE ESTATE OF GERTRUDE AUSTIN, DECEASED, ET AL.

          FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY CHERYL V. HIGGINS, JUDGE.

          OPINION

          D. ARTHUR KELSEY JUSTICE.

         A 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 retrial.

         I.

         In 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.

         One 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 on-call supervisor.

         The Estate filed suit against Martin and Our Lady of Peace.[1] 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.

         Among 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.

         The 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).

         This 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.[2]

         At the 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 employed," id.

         The 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 reads:

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.

Id.

         Prior 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 on it.

         In 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.

         The 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.

         After 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 to trial:

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.

         The 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.

         Second, 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.

         At the 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.[3]

         During 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.

         II.

         A. Respondeat Superior Liability for Martin's Conduct

         On 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).

         "In 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 omitted).

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 emphasis added).

         In 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 wavered." Id.

         This 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 ...


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