The rule of respondeat superior is that an employer is vicariously liable for the torts of its employees committed within the scope of the employment. An employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.
On July 9, 1989, plaintiff, 19 years old and pregnant, was injured in a fall at a movie theater and sought treatment at Hospital's emergency room. At the direction of the examining physicians, ultrasound technician Tripoli performed obstetrical and upper-right-quadrant ultrasonic imaging examinations. Tripoli took plaintiff to the ultrasound room on a gurney. She remained in her street clothes, shorts and a maternity top. No one else was present during the examination. Plaintiff had asked that her boyfriend accompany her, but Tripoli refused the request, as was his practice in conducting emergency obstetrical examinations. Tripoli turned out the room lights but left the adjacent bathroom door ajar to admit dim light. Tripoli first conducted the prescribed examinations. Plaintiff pulled up her shirt and pushed her shorts down to expose the area to be examined. The obstetrical or "general pelvic" examination requires passing an ultrasound-generating wand across the patient's lower abdomen. The sound waves must be mediated by a gel, which Tripoli testified must be worked into the skin somewhat to displace all the air. The exact placement and movement of the wand varies with the patient's body type, and on some patients the best images are obtained by passing the wand as much as an inch below the pubic hairline. Tripoli found it necessary to do so in plaintiff's case. In performing the upper right quadrant examination (to see the liver), Tripoli had to lift plaintiff's right ***, which he did through a towel with the back of his hand. Plaintiff patient brought an action against the hospital alleging that a technician sexually molested plaintiff, under the pretense of conducting an obstetrical ultrasound imaging exam. The trial court granted summary judgment in favor of defendant. Plaintiff appealed the case and maintained that triable issues of fact existed as to whether defendant was vicariously liable under the doctrine of respondeat superior, or was directly liable for its own negligence in failing to have a third person present during the exam.
Is a hospital vicariously liable under the doctrine of respondeat superior for a sexual assault by an employee done outside the scope of his employment?
The court reversed the judgment of the appellate court finding that summary judgment in favor of defendant was proper, and remanded for a determination of the negligence issue. The court concluded that nothing happened in the course of the prescribed examination to provoke or encourage the technician's improper touching of plaintiff, and that the technician's sexual assault on plaintiff was fairly attributed not to any peculiar aspect of the health care enterprise, but only to his lust. There was no causal nexus between the technician's tortuous conduct and his job so as to hold defendant vicariously liable for the act of its employee.