Opinion
No. 100713
May 24, 2005
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I
¶ 0 Summer Baker, an infant, was injured at Ave Maria Child Care when an employee of the childcare provider allowed her to roll off a crib onto the floor and then intentionally struck the infant's head against a shelf at the childcare facility. The child's parents sued Saint Francis Hospital, appellee, which operated the facility. The hospital filed a motion for summary judgment contending the fall was not the proximate cause of any injuries to the infant and that the employee was not acting within the scope of her employment when she deliberately struck the infant's head against the shelf. The trial court granted the hospital's motion for summary judgment. The Court of Civil Appeals affirmed.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED AND REMANDED.John F. McCormick, Jr., John L. Randolph, Jr., Harry A. Parrish, PRAY, WALKER, JACKMAN, WILLIAMSON MARLAR, Tulsa, Oklahoma, for appellants.
Timothy G. Best, Sean H. McKee, Matthew B. Free, BEST SHARP, Tulsa, Oklahoma, for appellee.
¶ 1 The question before this Court is whether the trial court erred in granting summary judgment to the appellee, Saint Francis Hospital, d/b/a Ave Maria Child Care. We find the trial court erred and reverse and remand for a hearing on the merits.
I. FACTS AND PROCEDURE
¶ 2 The parties have agreed on the following facts. Ave Maria Child Care is a daycare facility that cares for children of employees of Saint Francis Hospital and its affiliates. The appellant, Stella Baker, was an employee of Laureate Psychiatric Clinic and Hospital, an affiliate of Saint Francis Hospital. On September 6, 1998, Amy Davis was employed at the daycare facility as a caregiver when Stella Baker left her two-month-old daughter, Summer, there. About 3:30 p.m., when Mrs. Baker arrived to pick up Summer, she heard her crying and noticed two small red marks on her right temple. Davis was Summer's regular caregiver at Ave Maria, and when Mrs. Baker inquired about the marks, Davis denied knowing how Summer received them.
¶ 3 A few hours later, when bathing Summer at home, Mrs. Baker noticed the right side of Summer's head was swelling. She called her pediatrician's office and was told to take her to the emergency room at St. Francis Hospital. The physicians there determined that Summer had two bilateral depressed skull fractures and suffered traumatic brain injury.
¶ 4 The appellants allege that Davis allowed Summer to fall from her crib while changing a diaper. The parties agree that Davis intentionally struck Summer's head two times against the corner of a shelf at the daycare facility. The record includes a copy of the Findings of Fact and Acceptance of Plea dated and file-stamped September 14, 1999, showing that Davis pled guilty to injury to a minor child. She received a sentence according to a plea agreement of ten years, seven in custody and the remaining three out of custody. On that document Davis claims to have hit Summer's head against the shelf because Summer would not stop crying.
¶ 5 The Bakers sued Saint Francis Hospital alleging it was liable under the theory of respondeat superior for Davis's negligent and intentional acts. Both parties filed motions for summary judgment. The trial court denied the Bakers' motion and granted the hospital's. On appeal, the Court of Civil Appeals affirmed. We granted certiorari.
II. REVIEW OF SUMMARY PROCEEDINGS
¶ 6 Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Coop. Ass'n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464. Because an order that grants summary relief disposes of legal issues, the review we conduct on appeal is de novo. Brown v. Nicholson, 1997 OK 32, ¶ 5 n. 1; 935 P.2d 319, 321 n. 1; Manley v. Brown, 1999 OK 79, ¶ 22, n. 30; 989 P.2d 448, 456 n. 30. We must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact. Wabaunsee v. Harris, 1980 OK 52, ¶ 9; 610 P.2d 782, 785; Perry v. Green, 1970 OK 70, ¶ 2, 468 P.2d 483, 484. From the underlying facts contained in such materials, all inferences and conclusions to be drawn must be viewed in a light most favorable to the party opposing the motion. Ross v. City of Shawnee, 1984 OK 43, ¶ 7, 683 P.2d 535, 536.
III. NEGLIGENCE
¶ 7 The appellants allege that Davis allowed Summer to roll off the crib onto the floor, which contributed to her injuries. The appellee asserts it is an uncontested fact that Summer's injuries could not have been caused by the fall described by the appellants. The appellee entered portions of a physician's deposition where he testified about the injuries likely from a fall. In response to the question: "Can you say to a hundred percent certainty, Doctor, that these fractures weren't caused by a fall?" the doctor responded, "I think without being there, nobody could say that with a hundred percent certainty." The doctor stated he believed that blows to the head were the plausible explanation for Summer's fractures rather than a fall from a crib.
¶ 8 The injuries to Summer did not include just the fractures but also traumatic brain injury. In exhibit A of "Defendant's Motion for Summary Judgment," offered by the appellee, the doctor's answers address the cause of the fractures, not the cause of the brain injury. The appellants' allegation is that "Summer suffered traumatic brain injury as a result of either, or both, the fall and having her head struck against the shelf." Since all inferences and conclusions to be drawn must be viewed in a light most favorable to the party opposing the motion, in this case the appellants, the issue remains in controversy; therefore, summary judgment on this issue is improper. Ross, 1984 OK 43, ¶ 7, 683 P.2d at 536.
IV. RESPONDEAT SUPERIOR LIABILITY FOR BATTERY
¶ 9 Davis intentionally struck Summer's head against a shelf at the daycare facility. The issue is whether her employer, the appellee, may be held liable in damages for this intentional wrongful act.
¶ 10 To hold an employer responsible for the tort of an employee, the tortious act must be committed in the course of the employment and within the scope of the employee's authority. Hill v. McQueen, 1951 OK 47, ¶¶ 3, 4, 230 P.2d 483, 484-485. As a general rule, an assault on a third person is not within the scope of an employee's authority. Rodebush v. Oklahoma Nursing Homes, 1993 OK 160, ¶ 12, 867 P.2d 1241, 1245. The exception to the general rule is well established. An employer may be held responsible for the tort committed by the employee where the act is incidental to and done in furtherance of the business of the employer even though the servant or agent acted in excess of the authority or willfully or maliciously committed the wrongs. Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, ¶ 31, 21 P.2d 1, 7, citing Mansfield v. Wm. J. Burns Detective Agency, 171 P. 625 (Kan. 1918). This is not to say that the commission of the tort was within the scope of the employee's authority, for no authority for such commission could be conferred, but where the employee was acting within the scope of authority to do the particular thing rightfully that was subsequently done in a wrongful manner. Ada-Konawa, 1932 OK 790, ¶ 32, 21 P.2d at 7, citing Dixon v. Northern Pac. R. Co., 37 Wash. 310, 79 P. 943 (1905). Rodebush summarized the exception to the general rule as applying where the act 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." Rodebush, 1993 OK 160, ¶ 12, 867 P.2d at 1245, citing Russell-Locke Super-Service v. Vaughn, 1935 OK 90, ¶ 18, 40 P.2d 1090,1094, and Ada-Konawa, 1932 OK 790, ¶ 33, 21 P.2d at 7. Rodebush added that: "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." Rodebush, 1993 OK 160, ¶ 12, 867 P.2d at 1245.
¶ 11 The appellee asserts, "It is self-evident that the act of smashing a child's head against a shelf does not accomplish the assigned work of caring for, protecting, and nurturing." Appellee's Answer to Appellant's Petition for Certiorari, p. 4. That mischaracterizes the law concerning liability of an employer for the tort of an employee. Where an employee of a daycare center is responsible for the care of an infant, the loss of temper over a crying baby and subsequent intentional injury to the infant is "an emotional response to actions being taken for the employer," and attempting to quiet a crying child is a rightful thing that Davis did "in a wrongful manner."
Rodebush v. Oklahoma Nursing Homes, 1993 OK 160, ¶ 12, 867 P.2d 1241, 1245.
Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, ¶ 32, 21 P.2d 1, 7.
¶ 12 Oklahoma case law provides examples of cases involving torts for which the employer was held liable and those in which the employer was not held liable. Early in statehood the Court held that a railroad company was liable for the actions of the train auditor, who falsely imprisoned a passenger arising out of a controversy over the payment of a fare. The Court stated the general rule that a corporation, like an individual, is liable for any tort committed by its agent in the course of his employment, "even though the act is done wantonly and recklessly, or was against the express orders of the company." Chicago R.I. P. Ry. Co. v. Radford, 1913 OK 7, ¶ 4, 129 P. 834, 837. Other cases holding the employer liable for the tort of the employee include: Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, 21 P.2d 1 (the servant of the toll bridge company shot an automobile driver when he drove past the toll gate and failed to pay the toll); Russell-Locke Super-Service v. Vaughn, 1935 OK 90, 40 P.2d 1090 (the servant of a corporation selling and servicing automobile batteries injured the plaintiff in a fight after the servant tried to repossess a battery from the plaintiff's vehicle); Mistletoe Express Service v. Culp, 1959 OK 250, 353 P.2d 9 (the servant for a common carrier of freight assaulted the plaintiff when he refused to accept a television tube after the common carrier denied the plaintiff's claim for damage in transit); and Rodebush v. Oklahoma Nursing Homes, 1993 OK 160, 867 P.2d 1241 (the employee of a nursing home forcefully slapped a combative male Alzheimer's patient while bathing the patient).
¶ 13 Cases holding the employer was not liable for the tort of the employee include: Hill v. McQueen, 1951 OK 47, 230 P.2d 483 (the manager of a seed company assaulted a former independent sales contractor after the two got into an argument over a disputed debt); Oklahoma Ry. Co. v. Sandford, 1953 OK 394, 258 P.2d 604 (bus driver for bus company left his bus parked and assaulted the driver of an automobile and held him for arrest after the bus driver concluded he was drunk); Tulsa General Drivers, Warehousemen, and Helpers Union, Local No. 523 v. Conley, 1955 OK 277, 288 P.2d 750 (the agent of the union was picketing a business but left to follow the plaintiff four and one-half blocks to beat him with a board studded with nails, because he had crossed the picket line); Allison v. Gilmore, Gardner Kirk, 1960 OK 48, 350 P.2d 287 (a gasoline truck driver was employed by the defendant to drive a truck and deliver gasoline, and while fulfilling those duties, assaulted the plaintiff who was climbing on the gasoline truck); and N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592 (a Presbyterian minister molested minors, including the plaintiff, during recreational activities aimed at recruiting new members and their families).
¶ 14 The Court in N.H. v. Presbyterian Church (U.S.A.) distinguished the facts in that case from those in Rodebush. The Court observed that the attendant who was bathing the Alzheimer patient acted impulsively when he slapped the combative patient, but that the impulse naturally arose from the situation he had been placed in by the employer, which was to complete the patient's bath. N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶¶ 15, 16, 998 P.2d at 599. But the minister acted for his own personal gratification rather than for any religious purpose. N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 18, 998 P.2d at 599.
¶ 15 In the Hill case, the Court distinguished it from the Ada-Konawa Bridge and Radford cases. It was the employee's duty to obtain payment of the toll, in Ada-Konawa Bridge, and the train fare in Radford. The employee was to withhold the enjoyment of the right or privilege, if payment was not obtained. Since successful performance involved some type of immediate action in opposition to the will of the other, the employer could have anticipated the wrongful acts taken. Hill, 1951 OK 47, ¶ 7, 230 P.2d at 485. In contrast, the Court held that McQueen's assault on Hill could not be properly contemplated as an incident to the exercise of ordinary authority to collect indebtedness. Hill, 1951 OK 47, ¶ 8, 230 P.2d at 485.
Hill v. McQueen, 1951 OK 47, 230 P.2d 483.
Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, ¶ 32, 21 P.2d 1, 7.
Chicago R.I. P. Ry. Co. v. Radford, 1913 OK 7, ¶ 4, 129 P. 834, 837.
CONCLUSION
¶ 16 We hold that the assault of the appellee's employee on Summer was within the scope of the employment. The employee's loss of temper over a crying baby and subsequent intentional injury to the infant was an emotional response to actions being taken for the employer. The attempt to quiet a crying child was a rightful thing that Davis did in a wrongful manner. In addition, the appellee could anticipate that an infant's continuous crying may result in the child's daycare worker losing her temper and battering the child. The issue regarding any injury resulting from a fall remains in controversy and summary judgment on it was improper. Accordingly, the judgment of the trial court is reversed and the cause is remanded.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED AND REMANDED.
CONCUR: WATT, C.J., WINCHESTER, V.C.J., LAVENDER, EDMONDSON, TAYLOR, COLBERT, JJ.
CONCUR IN PART; DISSENT IN PART: HARGRAVE (who joins OPALA, J.), OPALA (with whom HARGRAVE and KAUGER, JJ. join), KAUGER (who joins OPALA, J.), JJ.
¶ 1 The court reverses as impermissible a summary judgment for the defendant and imposes respondeat superior liability on the master on the basis of summary process materials in the record. It directs that postremand trial be confined to the single issue of damages.
¶ 2 I concur in the reversal of summary judgment and dissent from the court's gratuitous entry of summary judgment against the defendant on its respondeat superior liability for the act of a servant.
I THE CORE ISSUE WHOSE RESOLUTION WILL DECIDE WHETHER EMPLOYER BEARS RESPONDEAT SUPERIOR LIABILITY FOR THE SERVANT'S ASSAULT
¶ 3 My disposition would extend post-remand trial-court proceedings to all triable issues, including that of whether the caregiver-assailant, while in the act of hitting an infant, believed she was furthering the master's interests or acted on an emotional impulse of her own. There is here ample evidence in the record of summary nisi prius proceedings which makes the employer's respondeat superior liability an issue either of a disputed fact or one of undisputed fact from which opposite inferences may be drawn.
As I analyze the record of summary proceedings in the trial court, the master's liability was sought to be imposed solely on the theory of respondeat superior. There is no evidentiary material to indicate that the plaintiff also relied on proof of the master's negligent hiring of an unfit servant.
¶ 4 In a case like this, abandonment of a mission for the master to follow a personal pursuit occurs with a change in the servant's mental state. It may happen in a veritable instant by a sudden transformation of the mind. The change's occurrence need not be apparent to an eye nor confirmable by visual or auditory means. It must be divined from the totality of circumstances that include the caregiver-assailant's behavior at and immediately before the critical moment.
Comment:
respondeat superior Comment f, § 245, Restatement (Second) of Agency (1958)
The liability of a master for the use of force by a servant is not prevented by the fact that the servant acts in part because of a personal motive, such as revenge. The master, however, is relieved from liability under the rule stated in this Section if the servant has no intent to act on his master's behalf, although the events from which the tortious act follows arise while the servant is acting in the employment and the servant becomes angry because of them. The fact that the servant acts in an outrageous manner or inflicts a punishment out of all proportion to the necessities of his master's business is evidence indicating that the servant has departed from the scope of employment in performing the act."
Chapter 7 (Torts — Liability of Agent and Principal), proposed Restatement (Third) of Agency respondeat superior
"§ 7.07 Employee Acting Within Scope of Employment * * * (2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. 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 to serve any purpose of the employer."
"b. * * * Under subsection (2) an employee's tortious conduct is outside the scope of employment when the employee is engaged in an independent course of conduct not intended to further any purpose of the employer. . . . The employee's intention severs the basis for treating the employee's act as that of the employer in the employee's interaction with the third party."
"c. * * * In determining whether an employee's tortious conduct is within the scope of employment, the nature of the tort is relevant, as is whether the conduct also constitutes a criminal act. An employee's intentionally criminal conduct may indicate a departure from conduct within the scope of employment, not a single escalation. . . . Matters of degree are also relevant to this determination. For example, in Illustration 5, A's act is within the course of employment when A slams into the stack of trays at the culmination of A's attempt to resolve T's complaint about service in the restaurant. If, instead, A draws a gun and shoots T, the nature of A's action — which constitutes a serious crime — and its extreme nature may indicate that A has launched upon an independent course of action. * * *"
REPORTER'S NOTES
Smith v. Goodyear Tire Rubber Co., Inc., 856 F.Supp. 1347 (W.D.Mo. 1994), is cited as a representative recent case "involving intentional torts within the scope of employment." In Smith, the court gave the plaintiff/franchisee (nonmovant) the benefit of all reasonable inferences from the evidence, holding that summary judgment is inappropriate when there is a dispute over a material fact as to the motivation of the defendant/franchisor's employee, who allegedly acted intentionally to harm the franchisee.
By the evolving norms of soon-to-be-restated common law of today, the line separating a master's respondeat superior liability from a servant's individual responsibility for the latter's on-duty assault is to be drawn somewhere between a servant's venting purely personal spleen on a third party and the point at which the servant continues to press the master's interest with mistaken vigor and in an inappropriately aggressive manner.
Rodebush v. Oklahoma Nursing Homes, Ltd., ¶¶ 12-15, 1993 OK 160, 867 P.2d 1241, 1245-46; Mistletoe Express Service v. Culp, 1959 OK 250, ¶ 28, 353 P.2d 9, 12; Hill v. McQueen, 1951 OK 47, ¶ 7, 204 Okl. 394, 230 P.2d 483, 396-97. Hill reflects the earlier common-law view by which employer's respondeat superior liability for the employee's on-duty assault was treated as a question of law when the assault could be deemed clearly unrelated to the duties of employment. Measuring this case by the standards of yore, one cannot say that the employee's assault was clearly unrelated to the duties of her employment. Nor can one conclude, without first committing to a preference among the competing inferences, that the caregiver's act was related to the duties of her employment. Worse yet, making that critical choice is not a judge's but a jury's province.
II THE RECORD OF SUMMARY PROCESS ON THE ISSUE OF RESPONDEAT SUPERIOR LIABILITY
¶ 5 Hospital's evidentiary material reveals that the caregiver-assailant pled guilty to felony child abuse as a result of injuries to the child. During a series of interviews with the caregiver-assailant, Detective Irvine heard at least four different versions of the events in litigation. (1) The caregiver-assailant first denied knowing about the child's injuries, but later during the interrogation (2) she stated that the child rolled off the crib. (3) Several days later, when confronted with medical records showing bilateral skull fractures, the caregiver-assailant said there were actually two falls, one in the crib room and another in the kitchen. (4) The next day, she stated there was only a fall in the crib room, after which she picked up the child and struck its head twice against a shelf. The detective testified that because the caregiver-assailant changed her stories so many times, he was convinced only that she had inflicted the injuries; he was uncertain whether the true circumstances of those harmful events would ever be known. The detective interviewed a certified pediatric nurse practitioner who is a consultant in child abuse investigations for the police department. The nurse practitioner was skeptical about the caregiver-assailant's explanation of how the injury occurred. He did not believe that a fall from that short a distance onto a carpeted surface would cause a depressed skull fracture. Hospital's medical expert, Dr. Block, stated that the child had two bilateral depressed skull fractures that are more consistent with an injury caused by striking her head against an uneven surface rather than by a fall from a three-foot distance. Hospital's day care administrator stated that the caregiver-assailant not only failed to report the incident, but also lied about its occurrence.
Hospital's evidentiary material tendered in summary process consists of (1) a partial deposition by its medical expert, Dr. Block; (2) the appearance docket in State v. Amy Leigh Davis, CF-98-4789 (felony child abuse case brought against the caregiver-assailant); (3) partial deposition of its daycare administrator; and (4) partial deposition of Detective Irvine.
Hospital tendered the appearance docket in the criminal case brought against the employee-care giver for felony child abuse under the provisions of 10 O.S. 2001 § 7115[ 10-7115]. The docket indicates that an information was prosecuted against the caregiver-assailant and that she entered a plea of guilty. A felony judgment entered upon a plea of guilty, which is no longer subject to appellate review, is admissible in a civil case (12 O.S. 2001 § 2803[ 12-2803]) solely as an admission against interest. Laughlin v. Lamar, 1951 OK 330, ¶ 5, 237 P.2d 1015, 1016; Dover v. Smith, 1963 OK 166, 385 P.2d 287; Zumwalt v. Moran, 1953 OK 223, ¶ 0 syl.2, 260 P.2d 725. The only relevant evidence in the caregiver-assailant's criminal case is her guilty plea and a stipulation of the offense to which the defendant pled guilty. A complete judgment roll in the criminal case is not needed because there is nothing in that judgment roll which would be admissible in the civil case. This case is distinguishable from Salazar v. City of Oklahoma City, 1999 OK 20, 976 P.2d 1056, where a complete judgment roll in a federal-court civil rights case was needed in support of the City's issue-preclusion defense interposed in state-law tort action against the City.
Partial deposition of Detective Irvine, supra note 5.
Id.
Id. at page 70.
"A. . . . I remember wishing that I had had a videotape of what actually happened, because Amy changes her story so many times. The only thing I was totally convinced of, looking back, is that she inflicted injuries. As to exactly what the circumstances were, what caused her to do it, how she did it, we'll probably never know for sure."
Id. (at p. 21-22).
Q. Okay. Did he tell you why he was skeptical?
A. He did not think the — a fall of that short a distance on that type of surface could cause a depressed skull fracture. I think, from his experience, that's a common excuse or explanation given by people who have — who have inflicted an injury on a baby."
* * *
A. They'll blame a fall from a crib or another piece of furniture.
Partial deposition of Dr. Block, supra note 5.
Q. Okay. Let me see if I've got this right. Your first thought is that a fall from three feet generally is not going to cause a fracture?
A. Generally, that's correct.
Q. And your third opinion would be that . . . the presence of two fractures, versus one fracture, makes it even less likely that the injury occurred from a fall?
A. Correct.
Q. Okay. Can you say to a hundred percent certainty, Doctor, that these fractures weren't caused by a fall?
A. I think without being there, nobody could say that with a hundred percent certainty.
* * *
Q. What is your understanding, Doctor, of how this injury occurred, other than it didn't occur from a fall?
A. The — if you put all the pieces together that I'm aware of, including the fact that the caregiver, to my information, admitted and was convicted for hitting the baby's head onto a — some part of a surface, which is consistent with this injury, the fact that — so that her first explanations are not tenable. Her confession is tenable. And that's, I think where it stands.
Q. And for the sake of arriving at your opinions, you have elected, or chosen, to believe her version of events about hitting the child's table — or head against a table.
A. That's the only —
MR. McKEE: Object to the form.
A. That's the only version of the history that's consistent with the injury.
(emphasis added).
¶ 6 According to the plaintiffs' evidentiary material, when the mother went by the day care shortly after the harm-dealing event, she noticed that the baby was crying and had two red marks on her right temple. When the mother questioned the caregiver-assailant about the marks, she denied any knowledge of what happened. She later explained to Detective Irvine that she was holding her own infant son while changing the baby's diaper. When she turned to reach for a clean diaper, she accidentally knocked the child out of the crib and onto the floor. As she was in process of picking the baby up from the floor, her grasp caused the two red marks on the baby's temple. The baby started crying after the fall. When the baby would not stop crying, she became frustrated and twice struck her head against a wooden shelf in the nursery. The caregiver-assailant was on duty and received her full salary at the time she injured the child. Plaintiffs tendered the caregiver-assailant's guilty plea in the felony child abuse case as further proof that her acts were in furtherance of the employer's business.
The Plaintiffs' evidentiary material pertinent to the assault (tendered in summary process) consists of (1) Hospital's responses to the request for admissions; (2) partial deposition of the child's mother; (3) partial deposition of police Detective Irvine; (4) partial deposition of Dr. Block; (5) Hospital's answer to plaintiffs' interrogatories; (6) Findings of Fact — Acceptance of Plea in the caregiver-assailant's criminal case.
Partial deposition of the child's mother (pages 28-50).
Id.
Id.
"Findings of Fact — Acceptance of Plea" entered in the felony child abuse case. The caregiver-assailant wrote on the form: "I hit Summers head against the cubby she was crying she wouldn't stop crying."
¶ 7 Summary judgment is permissible only if no substantial controversy exists as to any material fact. Disputed issues of fact must be resolved by trial, the law's very antithesis of summary decisional process. When uncontroverted proof lends support to conflicting inferences, the choice to be made between the opposite alternatives does not present an issue of law but rather one for the trier of fact. All inferences to be drawn from the evidentiary materials must be viewed in the light most favorable to the nonmoving party. Only if the court should conclude there is no material fact (or opposite inferences) in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary relief in its favor.
Wathor v. Mutual Assur. Adm'rs, Inc., 2004 OK 2, 87 P.3d 559, 566.
An inference is a "process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or state of facts, already proved or admitted. Inferences are deductions or conclusions which with reason and common sense lead the jury to draw from facts which have been established by the evidence in the case. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." William E. Gallagher, Ronald C. Goodstein, Ph.D. , Inference Versus Speculation in Trademark Infringement Litigation: Abandoning the Fiction of the Vulcan Mind Meld, The Trademark Reporter 1237 (November-December 2004), citing Black's Law Dictionary, 700 (5th edition 1979).
"An inference is a permissible deduction from the evidence, and in dealing with inference the jury is at liberty to find the ultimate fact one way or the other as it may be impressed by the testimony, and the reasonable and permissible deductions therefrom. Inferences have no significance as to the duty of either party to produce evidence, and the jury may give to inferences whatever force or weight it thinks they are entitled to." Stumpf v. Montgomery, 1924 OK 360, ¶ 0, syl.5,101 Okl. 257, 226 P. 65.
Walters v. J.C. Penney Co., Inc., 2003 OK 100, 82 P.3d 578; Wetsel v. Independent School District I-1, 1983 OK 85, ¶ 8, 670 P.2d 986, 990-91; Mistletoe Express Service v. Culp, supra note 4, 353 P.2d at 12.
Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.
B. The Employer's Vicarious Tort Liability
¶ 8 The common-law doctrine of respondeat superior makes an employer vicariously liable for the acts or omissions of an employee acting within the scope of his employment. If the employee's offending conduct may be viewed as willful, an employer cannot be held vicariously liable unless its employee's act is found to have been "incidental to and in furtherance of" its business. Except in cases where only one reasonable conclusion can be drawn from the facts, the question whether an employee has acted within the scope of employment at any given time is generally one for the trier of fact.
The employer's respondeat superior liability is controlled by the teachings restated in Rodebush v. Oklahoma Nursing Homes, Ltd., supra note 4, 867 P.2d at 1245-46; see also Nelson v. Pollay, M.D., 1996 OK 142, 916 P.2d 1369, 1374, n. 23; Texaco, Inc. v. Layton, 1964 OK 51, ¶ 7, 395 P.2d 393, 396.
Carswell v. Oklahoma State Univ., 1999 OK 102, ¶ 20, 995 P.2d 1118, 1123; Nail v. City of Henryetta, 1996 OK 12, ¶ 13, 911 P.2d 914, 918.
As stated in Mistletoe Express Service v. Culp, supra note 4, at ¶ 28, 353 P.2d at 12, "the employer is not liable to third person not an invitee upon its premises for the tortious act of its employee or agent unless it is shown that such employee or agent was acting within the scope of his employment, and that the act complained of was done as a means of carrying out the job assigned to him by the employer. In other words, the fact that at the time of the assault upon the third person the employee or agent was about his employer's business is not sufficient to affix the liability for the resulting damages upon the employer, but it must be shown that the act complained of was done for the purpose of doing the work assigned to him." Id., citing Hill v. McQueen, supra note 4.
C. The Record Does Not Support but a Single Inference That The Hospital Was Vicariously Liable as a Matter of Law
¶ 9 An examination of the evidentiary materials submitted in opposition to (and in favor of) plaintiffs' quest for summary relief demonstrate that both parties rely on uncontroverted facts from which opposing inferences may be drawn. The caregiver-assailant's guilty plea in the felony child abuse case as well as her statements to the detective about the circumstances of the child's injuries support inferences of both exoneration and liability. One inference would tend to show that by striking the baby's head in an attempt to quiet it the caregiver-assailant believed she was in fact furthering the master's interests or acted on an emotional impulse that grew out of (or was incident to) an attempt to perform the master's business. But a contrary inference can clearly be drawn from the caregiver-assailant's admission of an intentional felony assault upon the infant. Her guilty plea facially shows a state of mind incompatible with performing a mission for the employer. The latter inference is more consistent with the notion that she had departed from the employer's mission to commit an intentional criminal act prompted by purely personal motives of annoyance (or irritation) unrelated to the accomplishment of any objectives for the employer. In short, the caregiver-assailant's admission against interest tends to establish her motives as dehors the scope of employment. All inferences to be drawn from this evidentiary material must be viewed in the light most favorable to the nonmoving party — the Hospital.
See e.g., Canida v. Technotherm Corp., 2000 OK 83, ¶ 2, 16 P.3d 1127, 1139 (Opala, J., concurring). The dispositive issue formed by the evidence was whether the claimant could be considered "aggressor, initiator or voluntary participant" in horseplay. From the critical record proof opposite inferences could be drawn as to the claimant's involvement in the happenings immediately preceding the harm-dealing event. The choice to be made between these opposite inferences was for the trier of fact. Id.
¶ 10 This case demonstrates a classical scenario for jury assessment. The Hospital defending against liability must convince the jury that for an instance — no matter how short — its employee formulated criminal intent to harm the baby which was sufficient to divorce the act from the mission for the employer. While the plea of guilty to an intentional felony assault would by itself support the theory of nonliability, the plaintiffs must go one step further to support respondeat superior liability. They must persuade the triers that the caregiver-assailant's acts are consistent with her continued performance of a mission for the employer.
¶ 11 The court impermissibly chooses today between inferences in favor of and against a finding that the felony assault was (1) part and parcel of the employee's mission for the employer or (2 ) a departure from the mission brought on by a suddenly changed mental state which helped form a design to injure. The choice between these conflicting inferences cannot be summarily resolved by judicial fiat. That resolution can be made only by a jury selection between competing alternatives drawn from the same facts.
¶ 12 On this record, the submission of respondeat superior liability to the trier is commanded by Art 2 § 19, Okl. Const. Furthermore, it is highly improper for an appellate court to make first-instance determinations of disputed issues of law or fact. That function belongs to the trial court in every case — whether in law, equity or on appeal from an administrative body.
The court's summary-judgment analysis results in an impermissible judicial intervention in the fact-finding process. It violates the plaintiffs' fundamental-law right to trial by jury under the standards of Art. 2 § 19, Okl. Const. That section keeps "inviolate" the common-law norms for drawing the line at which submission to the trier is a party's due. Because these standards are enshrined in the state constitution — which adopted the English common-law system that prohibits judges from weighing evidence — they cannot be abrogated (impaired or abridged) by legislative or judicial action. Seymour v. Swart, 1985 OK 9, 695 P.2d 509, 511; see also Weldon v. Dunn, 1998 OK 80, ¶ 24, 962 P.2d 1273, 1283 (Opala, J., dissenting); Williams v. Tulsa Motels, 1998 OK 42, ¶ 27, 958 P.2d 1282, 1291-92 (Opala, J., dissenting); McLin v. Trimble, 1990 OK 74, 795 P.2d 1035, 1044 (Opala, V.C.J., dissenting). Here a choice needs to be made between conflicting inferences. The constitutional adoption of the common-law norm for submission of issues to a jury unequivocally commands that choicemaking between opposite inferences from undisputed proof be treated as a function of the trier of fact.
Dyke v. St. Francis Hosp. Inc., 1993 OK 114, ¶ 11, 861 P.2d 295, 299-300; Hadnot v. Shaw, 1992 OK 21, ¶ 15, 826 P.2d 978, 983.
IV SUMMARY
¶ 13 This court's first-instance summary disposition of the employer's respondeat superior liability cannot stand. That liability rests on the court's usurpation of both parties' right to a resolution by jury trial guaranteed by the provisions of Art. 2 § 19, Okl. Const.
¶ 14 I would reverse the nisi prius summary judgment for the defendant and remand the cause for a trial below upon all issues on the merits of plaintiff's claim.