Plummer v. Ctr. Psychiatrists - 252 Va. 233, 476 S.E.2d 172 (1996)

Rule:

Pursuant to the doctrine of respondeat superior, an employer is liable for the tortious acts of its employee if the employee was performing his employer's business and acting within the scope of his employment when the tortious acts were committed. When an employer-employee relationship has been established, the burden is on the employer to prove that the employee was not acting within the scope of his employment when he committed the act complained of, and if the evidence leaves the question in doubt it becomes an issue to be determined by the jury.

Facts:

Dr. Roque Gerald, a licensed clinical psychologist, had intercourse with Katrina Q. Plummer, a patient during a counseling session. Plummer alleged that the psychologist's act of sexual intercourse constituted an assault and battery upon her because the psychologist, through his education, experience, and knowledge of plaintiff, overcame her will so that she was unable to act with volition. Plummer alleged that Gerald was an employee, agent, and servant of Center Psychiatrists, Ltd. and that he was acting within the scope of his employment when he engaged in sexual intercourse with her. The trial court concluded that the doctrine of respondeat superior did not apply and dismissed the action. Plummer appealed.

Issue:

Did the trial court err by holding, as a matter of law, that a psychologist who had sexual intercourse with a patient was acting outside the scope of his employment, thus rendering the doctrine of respondeat superior inapplicable?

Answer:

Yes.

Conclusion:

The court held that the facts alleged in Plummer’s motion for judgment are sufficient to support Plummer’s legal conclusion that Gerald acted within the scope of his employment when he committed sexual intercourse with Plummer. The court concluded that it was for the jury to determine whether Gerald was actually acting within the scope of his employment.