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The Court of Appeals analyzes the scope of employment issue in the context of a sexual battery

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June 4, 2024

Virginia Appellate Law Blog

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 H.C. v. Potomac Hospital Corp. of Prince William, Record No. 0521-23-4 (Va. Ct. App. June 4, 2024)

 

Facts. H.C. sued Frederick Yeboah for a sexual battery that Yeboah committed against her while she was an inpatient at Potomac Hospital Corporation of Prince William’s Sentara Northern Virginia Medical Center. H.C. sued Potomac under theories of respondeat superior and agency.

At trial, the evidence showed that H.C. was admitted to Sentara Hospital for HIV complications. Yeboah was a registered nurse who worked at the hospital and was assigned to care for H.C. H.C. testified that on the second day that Yeboah was assigned to care for her, he entered her room, took her vital signs, gave her HIV medication, and administered morphine through her IV. During this time, Yeboah told H.C. that he knew people who had HIV, that it was okay for them to “have sex, use condoms, and penetrate with the hand.” After he finished administering the IV medication, he walked to the other side of H.C.’s bed and put gloves on. Yeboah then reached under H.C.’s shirt to touch her breasts, put his fingers in her vagina, and massaged her shoulders and back. At each action, H.C. told him to stop. Yeboah became mad, took off his gloves, threw them out, and left the room. H.C. reported the battery to another nurse, and the hospital reported the incident to the police.

Yeboah denied sexually assaulting H.C. in any way. At trial, he testified that he spoke to H.C. about her HIV status and treatment, administered her morphine, and told her that he was “comfortable” caring for patients with HIV. Yeboah testified that he applied lotion to H.C.’s back with her permission when she said that her back itched. Yeboah said that all of his interactions with H.C. were “with the intent to treat and comfort” her. He acknowledged that touching a patient’s private parts without a doctor’s order, without a patient’s permission, and not for medical reasons “would not be empathetic.”

Potomac called an expert in the field of nursing who testified that H.C.’s medical records did not include an order for any medical treatment that would require contact with H.C.’s breasts or vagina.

At the close of all evidence, Potomac made a motion to strike, arguing that Yeboah’s acts were outside the scope of his employment. H.C. argued that Yeboah’s testimony that he was acting to “comfort and reassure” her showed that a “very, very small sliver” of his conduct was for the benefit of Potomac, and therefore within the scope of his employment. The trial court disagreed, acknowledging Yeboah’s testimony that he was trying to comfort H.C., but finding “no evidence” that connected this mindset to the sexual assault itself. The trial court granted Potomac’s motion to strike and dismissed it from the case. H.C. appealed that ruling.

 

Issues. (1) Whether the trial court erred by “ignoring the burden-shifting framework” applicable to respondeat superior cases. (2) Whether the trial court erred by finding that, as a matter of law, Yeboah was not within the scope of his employment when he sexually battered H.C.

 

Holdings. (1) No. The trial court’s ruling showed that it found that H.C. had produced no evidence to support her claim. (2) No. Yeboah’s deviation from his employer’s mission was “marked and unusual” and therefore did not present a question for the jury.

 

Notes. (1) An employer is liable for the tortious conduct of its employee if the employee is performing his employer’s business and acting within the scope of his employment. There is a rebuttable presumption that an employee is acting within the scope of his employment when the plaintiff alleges an employment relationship. That presumption “shifts the burden of production to the employer to present facts sufficient to permit the factfinder to conclude that the employee was not acting within the scope of his employment at the time of the tortious conduct,” but the burden of persuasion remains with the plaintiff. Thus, at trial, “the scope-of-employment presumption disappears in the face of positive facts to the contrary.” Here, the trial court’s holding that “no evidence” supported H.C.’s claim that Yeboah’s sexual assault was “performed as part of Potomac’s business,” does not reflect that it did not understand this burden-shifting paradigm, but rather that it ruled that H.C. did not meet her burden of producing evidence at trial.

(2) An employer can only be held vicariously liable for an employee’s actions when the employment relationship is shown to exist “at the time and in the respect to the very transaction out of which the injury arose.” Although this principle does not limit liability to only those acts that “promote the object of the employment,” the tortious conduct must arise from the “very transaction, or service or task, that the employee was being paid to perform.” This analysis is both “employee-specific” and “task-specific.” In other words, the tortious act must occur while the employee is performing a “specific job-related service” that would have been an otherwise normal function of his job but for the wrongdoing. The employee’s mindset in committing the tortious act is also relevant. A tortious act must be “actuated at least in part by a purpose to serve the employer.” While usually a jury question, the trial court may resolve the issue as a matter of law if “the deviation from the employer’s business is slight on the one hand, or marked and unusual on the other.”

Here, according to H.C., Yeboah’s sexual battery happened after he completed his nursing duties. They did not involve matters of personal hygiene or any medical need to touch her breasts or vagina. Rather, the assault occurred at the end of his visit to her room. The assault also happened after Yeboah told H.C. that she had a “beautiful body” and that he was “aroused by looking at her breasts and vagina.” The Court of Appeals writes that H.C. had characterized the facts as leaving open the possibility that Yeboah was engaged in nursing duties that involved helping her on or off the bed pan or something similar, but the Court rejects this suggestion, relying on the principle first articulated in Massie v. Firmstone, 134 Va. 450 (1922) that a plaintiff “can rise no higher than the facts within her own knowledge and to which she has testified.” Here, H.C.’s own testimony indicated that Yeboah did not perform any duties that required him to touch or be near her breasts or vagina. Finally, despite H.C.’s suggestion that Yeboah’s motive included a desire to empathize with her in furtherance of Potomac’s interests, the Court of Appeals finds “no evidence” that supports this suggestion. First, Yeboah denied that he had ever touched H.C.’s breasts and vagina, so any intent to which he testified was not connected to the assault. Second, Yeboah specifically testified that sexually touching a patient could not be an empathetic act. Thus, his sexual battery was purely self-interested.

 

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