Cawood v. Rainbow Rehabilitation Centers, Inc
Cawood v. Rainbow Rehabilitation Centers, Inc
Opinion of the Court
Plaintiffs appeal as of right the circuit court’s opinion and order granting defendant’s motion for summary disposition under MCR 2.116(C)(10).
This case arises from a sexual encounter between plaintiffs’ daughter, Jennifer, and defendant’s employee while Jennifer was a resident of one of the homes of defendant, Rainbow Rehabilitation Centers, Inc., for brain-injured individuals. After plaintiffs learned of the sexual encounter,
This Court reviews de novo the grant or denial of a motion for summary disposition. Dressel v Ameribank,
Plaintiffs first argue that the trial court erroneously determined that defendant could not be held vicariously liable for the intentional tort of its employee. Consequently, plaintiffs further contend, summary disposition in favor of defendant on this issue was inappropriate. We disagree.
An employer is generally not responsible for an intentional tort “committed by its employee acting outside the scope of employment.” McClements v Ford Motor Co, 473 Mich 373, 381; 702 NW2d 166 (2005). Plaintiffs do not contend that defendant’s employee was acting within the scope of his employment when he had sexual relations with Jennifer.
Relying in part on Champion v Nation Wide Security, Inc, 450 Mich 702, 712 n 6; 545 NW2d 596 (1996), plaintiffs contend that Michigan has adopted the exception set forth in § 219(2) (d) of the Restatement. However, this Court has noted that it is unclear whether the exception applies in cases involving tort actions. See Salinas v Genesys Health Sys, 263 Mich App 315; 318-320; 688 NW2d 112 (2004) (questioning whether Champion adopted the Restatement exception).
“This Court has held that an employee is not ‘aided in accomplishing the tort by the existence of the agency relation,’ under the Restatement exception, just because of the ‘mere fact that an employee’s employment situation may offer an opportunity for tortious activity.. . .’ ” Id. at 321, quoting Bozarth v Harper Creek Bd of Ed, 94 Mich App 351, 355; 288 NW2d 424 (1979). Rather, the Restatement exception will only apply where “the agency itself empowers the employee to commit the tortious conduct.” Salinas, supra at 323. In
Plaintiffs next argue that the trial court’s grant of summary disposition was improper because defendant is directly liable to plaintiffs for its failure to adequately staff the group home. Again, we disagree.
“To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). However, there is nothing in the record to indicate that defendant’s staffing policies were inherently inadequate. Defendant’s expert opined in his affidavit that defendant met all the standards required for the adult foster care industry and, under the applicable licensing rules, the group home was appropriately staffed for the number of residents it served. He further noted that the licensing rules allow a staff member of the opposite sex to provide personal care with the consent of the resident. In the present case, the resident care agreement between the parties clearly indicates that plaintiffs consented to the provision of personal care to their
Finally, plaintiffs argue that, because defendant was aware of their daughter’s compulsive sexual behavior, defendant should not have permitted the employee to have been on staff alone with Jennifer. While defendant may have been aware of plaintiffs’ daughter’s decreased inhibitions, there was no evidence that defendant knew, or should have known, that its employee would take advantage of plaintiffs’ daughter’s condition.
Therefore, we conclude that plaintiffs failed to raise a genuine issue of material fact as to their claims against defendant. Consequently, the trial court properly granted summary disposition in favor of defendant.
Defendant’s motion was filed under MCR 2.116(C)(8) and (10). Although the trial court did not specifically state the subsection under which it was granting defendant’s motion, because the trial court relied on matters outside the pleadings, we treat the motion as though granted pursuant to MCR 2.116(C)(10). Driver v Hanley (After Remand), 226 Mich App 558, 562; 575 NW2d 31 (1997).
Defendant’s employee claimed the sexual encounter was consensual. Initially, Jennifer also claimed the encounter was consensual, but in her deposition she stated that she no longer considered it consensual. After reviewing the evidence, the trial court determined that there was a factual question concerning whether Jennifer was capable of consenting.
Plaintiffs also sued Harry Erkins, Jr., the employee who engaged in inappropriate relations with Jennifer, in addition to several other employees of defendant. However, they are not parties to this appeal.
Defendant actually had a policy explicitly prohibiting such conduct.
Pursuant to Restatement § 219(2), “[a] master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless. . . (d) the servant. .. was aided in accomplishing the tort by the existence of the agency relation.”
We recognize that the Court in Zsigo v Hurley Med Ctr, unpublished opinion per curiam of the Court of Appeals, issued May 4, 2004 (Docket No. 240155), lv gtd 472 Mich 899 (2005), concluded that Restatement § 219(2)(d) applies to actions in tort. However, because it is unpublished, Zsigo is not binding on this Court. MCR 7.215(C)(1).
Although Zsigo is not binding authority, we note that our conclusion is consistent with the Court’s determination in that case that the tort committed by the employee must be accomplished by an instrumentality or through conduct associated with the employee’s agency status. See Zsigo, supra.
Defendant conducted a background check on the employee in question. The employee had no criminal record, his references were favorable, and he successfully completed the requisite training and certification. Likewise, until this incident, his employment history with defendant was good.
While we are sympathetic to the dissent’s desire to provide enhanced protections for incapacitated persons, we do not believe that this Court is
Dissenting Opinion
(dissenting). This case arises as a result of sexual contact perpetrated upon plaintiffs’ daughter, Jennifer, by defendant’s employee while Jennifer was a resident of one of defendant’s long-term health care facilities for brain-injured individuals. It is not contested that plaintiffs placed their daughter in defendant’s facility after she suffered a traumatic brain injury as a result of an automobile accident. Once plaintiffs discovered that the sexual contact had occurred, they filed suit against defendant, claiming direct and vicarious liability. Defendant moved for summary disposition, the trial court granted defendant’s motion, and this Court has now affirmed. The majority’s ruling therefore perpetuates the unacceptable practice of allowing long-term care facilities, such as defendant’s, to escape liability and to avoid responsibility for torts committed by their employees against incapacitated patients whose health and safety has been entrusted to them. I dissent because plaintiffs should be entitled to recover against defendant on the basis of defendant’s negligent failure to protect plaintiffs’ daughter from being sexually assaulted by its employee when Jennifer was in defendant’s sole care, custody, and control.
My brother jurists are correct in their assertion that, ignoring equity, the current status of the general law of intentional torts regarding vicarious liability is found in this Court’s ruling in Salinas v Genesys Health Sys, 263 Mich App 315; 688 NW2d 112 (2004). The holding in
When plaintiffs were forced to place their daughter into a long-term health care facility, they legitimately and reasonably expected that they were placing their daughter in an environment that was free from the threat of sexual molestation, and defendant owed Jennifer a duty to protect her from its employee’s misconduct. The rationale for defendant’s heightened duty to protect Jennifer is based on the nature of the relationship between patients like Jennifer and their caregivers. Incapacitated persons are at the mercy of their caregivers and are uniquely vulnerable to mistreatment in general and to sexual mistreatment in particular. Given the nature of the relationship between incapacitated persons and their caregivers, and given the extent to which such patients rely on their caregivers and are vulnerable to mistreatment, imposition of a heightened duty to protect such patients is justified. Moreover, given the high cost associated with residing in a long-term health care facility, individuals like plaintiffs are paying for such a heightened duty. Because the Restatement does not take into consideration the fact that incapacitated persons are uniquely vulnerable to any mistreatment by employees of a facility where they are
Thus, the legal duty owed incapacitated persons in a full-time, long-term health care facility must be a simple one: to assure that no harm comes to an incapacitated person as a result of its employee’s tort. If, as in this case, an incapacitated person has been sexually molested, then it is up to the trier of fact to determine whether defendant breached its duty to protect the patient. Therefore, in this case, I would allow the trier of fact to decide whether defendant was negligent by allowing a male to work alone on Jennifer’s floor and by allowing a male to enter an incapacitated female patient’s room at night.
As the population rapidly ages, and the time for many to enter long-term care facilities approaches, the citizenry of this state should have a reasonable expectation that the civil laws of this state will protect them from sexual exploitation at the hands of a health care worker. However, such protections cannot be attained by blind adherence to outdated legal doctrines, which in this case has allowed defendant to escape any liability for the harm that was inflicted on an incapacitated person who was entrusted to its sole care. Because such a result is unjust and unconscionable, I dissent.
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