Piedmont Hospital, Inc. v. Palladino , 276 Ga. 612 ( 2003 )

Sears, Presiding Justice.

In this suit alleging an employer’s liability under the theory of respondeat superior, the Court of Appeals reversed the trial court’s grant of summary judgment to the employer hospital, finding that even though the suit alleged the employee had deviated from his job responsibilities when causing harm, there was a jury question as to whether the deviation was so slight as to not affect the employer’s potential liability.¹ Having reviewed the record, we conclude that the employee’s actions were for purely personal reasons and did nothing to further the employer’s business. Accordingly, as explained below, the employer cannot be liable under a theory of respondeat superior as a matter of law. Therefore, we reverse.

Appellee Albert Palladino underwent angioplasty surgery at appellant Piedmont Hospital, Inc. (“Piedmont”). As part of Palladino’s surgery, a sheath was inserted in the femoral artery of his groin. Patterson, an employee of Piedmont, was responsible for providing post-surgical treatment to Palladino and was authorized to enter Palladino’s hospital room alone, check the groin area for any bleeding or complications, clean the area, and, if necessary, move Palladino’s testicles in order to perform these tasks.

Palladino alleged that following his surgery, he awoke to discover Patterson rubbing his (Palladino’s) penis with both hands. Palladino also alleged that Patterson’s mouth was positioned near his penis. In addition to filing suit against Patterson, Palladino and his wife filed suit against Piedmont under a theory of respondeat superior for assault, battery and loss of consortium. The trial court granted summary judgment in favor of Piedmont on the ground that “it is well settled under Georgia law that an employer is not responsible for the sexual misconduct of an employee.”² The Court of Appeals reversed and we granted certiorari.

“Every person shall be liable for torts committed by his . . . servant by his command . . . and within the scope of his business, whether the same are committed by negligence or voluntarily.”³ “Two elements must be present to render a master liable [under respondeat superior]: first, the servant must be in furtherance of the master’s business; and, second, he must be acting within the scope of his master’s business.”⁴ If a tort is committed by an employee “not by reason of the employment, but because of matters disconnected therewith,” the employer is not liable.⁵ If a tortious act is committed not in furtherance of the employer’s business, “but rather for purely personal reasons disconnected from the authorized business of the master, the master [is] not. . . liable.”⁶

Under Georgia law, “if a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from the act, the servant may be liable, but the master is not liable.”⁷ In accordance with the foregoing principles, Georgia courts have consistently held that an employer cannot be held liable under respondeat superior for an employee’s sexual misconduct when the alleged acts were not taken in furtherance of the employer’s business and were outside the scope of employment.⁸

There can be no disputed issue of fact that if, as alleged, Patterson improperly manipulated Palladino’s genitals and performed (or attempted to perform) oral sex on Palladino, those acts (1) were committed for purely personal reasons associated solely with Patterson’s own gratification, and (2) were entirely disconnected from the scope of Patterson’s employment with Piedmont Hospital. As explained, Patterson was authorized to inspect the place in Palladino’s groin where the sheath was inserted, to clean the area, and to move Palladino’s testicles if necessary to perform these tasks. If, however, Patterson deviated from these job duties and began rubbing Palladino’s penis and/or performing oral sex on him, he was no longer acting within the scope of his employment or furthering the business of Piedmont Hospital. At that point, Patterson was acting not as a hospital employee, but rather purely for his own personal reasons.⁹ It follows from the applicable Georgia law discussed above that Piedmont Hospital cannot be held vicariously liable under the theory of respondeat superior for Patterson’s alleged misconduct and the trial court properly awarded summary judgment in the Hospital’s favor.

In cases very similar to this one, our precedent is clear that hospitáis cannot be held liable for the tortious acts committed by their employees outside the scope of employment and not in furtherance of the hospital’s business. For example, in Lucas v. Hosp. Auth. of Dougherty County,¹⁰ the Court of Appeals upheld an award of summary judgment to a hospital that had been sued for vicarious liability based upon the actions of its employee, a nurse. The nurse was accused of injecting lethal doses of potassium chloride into patients. The Court of Appeals held that the nurse’s actions did not further the interests of the hospital and stated that “while [the nurse] may have been advancing the hospital’s interest in giving authorized injections of potassium chloride, she clearly abandoned the hospital’s interest and pursued her own when she gave the lethal, unauthorized injections.”¹¹ Likewise, in this case, so long as Patterson touched Palladino’s groin in order to care for Palladino’s surgical incision, he was acting within the scope of his employment and furthering Piedmont Hospital’s interests. However, if Patterson began manipulating Palladino’s genitals, then he abandoned the hospital’s interests and began pursuing his own personal, morally offensive, agenda. Once Patterson crossed that line, his actions extended beyond the scope of his employment and were totally unconnected to the Hospital’s business. Under Lucas and other cases, Piedmont Hospital cannot be held vicariously liable for these purely personal acts.¹²

Moreover, Georgia precedent holds that Piedmont Hospital cannot be held vicariously liable merely because Patterson’s employment allowed him access into Palladino’s room and provided him with an opportunity to commit tortious acts against Palladino. In Mountain v. Southern Bell Tel. &c. Co.,¹³ a telephone company employee gained entry into a customer’s home via his employment, and then assaulted and raped her. The customer filed suit against the telephone company, alleging respondeat superior because the employee tortfeasor had gained entry into the plaintiff’s home while performing duties that were within the scope of his employment. The customer argued that had it not been for the tortfeasor’s employment with the telephone company, he would not have gained entry into her home and never would have had the opportunity to assault her. The Court of Appeals rejected that argument and upheld the trial court’s grant of summary judgment in the company’s favor. The appellate court held that simply because a tortious act occurs during the time of employment is not dispositive on the issue of whether an employee was acting within the scope of his employment when the tort was committed.¹⁴ Although the telephone company employee may have been acting within the scope of his employment when he entered the customer’s home, once he began to assault and rape her, his actions took him outside the realm of employment and became purely personal in nature. Once the employee tortfeasor crossed that threshold, respondeat superior liability could no longer attach to his employer.

In the present case, the Court of Appeals reasoned that Patterson’s alleged conduct was “not so far removed from his accepted duties to preclude liability for his employer.”¹⁵ This conclusion is both illogical and at odds with cases such as Lucas and Mountain, supra. While Patterson’s employment did authorize him to inspect and clean the incision in Palladino’s groin, in no way did it permit him to sexually manipulate Palladino’s genitals. The only nexus between these two actions is that they occurred in the same region of the body. Such a physiological connection is an insufficient basis to expose an employer to vicarious liability for its employee’s tortious conduct, especially when the misconduct is obviously and irrefutably outside the scope of his employment.¹⁶

Moreover, as discussed above, two elements are required before an employer can be held liable under respondeat superior for the actions of an employee — not only must the employee be acting within the scope of employment, but the actions must also be in furtherance of the employer’s business.¹⁷ As explained above, there can be no serious argument that Patterson’s alleged manipulation of Palladino’s genitals furthered Piedmont Hospital’s business. Hence, as a matter of law, Piedmont Hospital cannot be subject to vicarious liability under respondeat superior for Patterson’s alleged misconduct.¹⁸ It follows that the trial court properly granted summary judgment in Piedmont’s favor, and the Court of Appeals erred by reversing that judgment.

Judgment reversed.

All the Justices concur, except Hunstein, Carley and Thompson, JJ, who dissent.

1 Palladino v. Piedmont Hosp., 254 Ga. App. 102 (561 SE2d 235) (2002).

2 The Palladinos also sued Piedmont for alleged negligent hiring and negligent supervision of its employee Patterson, and the trial court’s ruling did not address those particular claims.

3 OCGA § 51-2-2 (emphasis supplied).

4 Adams, Georgia Law of Torts, p. 263, § 7-2 (2002 ed.); Farmer v. Rider Truck Lines, 245 Ga. 734, 737 n. 2 (266 SE2d 922) (1980); Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979).

5 Reynolds v. L & L Mgmt., 228 Ga. App. 611, 612-613 (492 SE2d 347) (1997); Lucas v. Hosp. Auth. of Dougherty County, 193 Ga. App. 595 (388 SE2d 871) (1989). See McCranie v. Langdale Ford Co., 176 Ga. App. 281, 282 (335 SE2d 667) (1985).

6 Lucas, 193 Ga. App. at 596 (emphasis supplied). Accord Reynolds, 228 Ga. App. at 612-613; Frazier v. Southern R. Co., 200 Ga. 590, 593 (37 SE2d 774) (1946); Odom v. Hubeny, Inc., 179 Ga. App. 250, 251 (345 SE2d 886) (1986).

7 Brownlee v. Winn-Dixie Atlanta, 240 Ga. App. 368, 369 (523 SE2d 596) (1999).

8 Alpharetta First United Methodist Church v. Stewart, 221 Ga. App. 748, 752 (472 SE2d 532) (1996) (“It is well settled under Georgia law that an employer is not responsible for the sexual misconduct of an employee”); B.C.B. Co. v. Troutman, 200 Ga. App. 671, 672 (409 SE2d 218) (1991) (An employer cannot be liable for an employee’s sexual misconduct because such acts do not further the employer’s business and are outside the scope of employment); Favors v. Alco Mfg. Co., 186 Ga. App. 480, 482-483 (367 SE2d 328) (1988) (employee’s sexual misconduct was outside the scope of employment, did not further the employer’s business and provided no basis for respondeat superior liability); Big Brother/Big Sister of Metro Atlanta v. Terrell, 183 Ga. App. 496, 497 (359 SE2d 241) (1987) (sexual moles tation not within the scope of employment and did not further employer’s business; hence, no liability under respondeat superior).

9 In this regard, the dissent’s reasoning is fatally flawed when it posits that by sexually manipulating Palladino’s genitals, Patterson was “ ‘engaged in doing the type of work for which he was hired.’ ” Dissenting op. at 618 (citation omitted).

10 193 Ga. App. 595 (388 SE2d 871) (1989).

11 193 Ga. App. at 596.

12 See Stewart, 221 Ga. App. at 752; Troutman, 200 Ga. App. at 672; Favors, 186 Ga. App. at 482-483; Terrell, 183 Ga. App. at 497.

13 205 Ga. App. 119, 120 (421 SE2d 284) (1992).

14 Mountain, 205 Ga. App. at 120; Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (307 SE2d 129) (1983).

15 254 Ga. App. at 104.

16 See, e.g., Lucas, 193 Ga. App. at 596 (insufficient nexus for respondeat superior liability to attach where a nurse who was authorized to give certain prescribed injections followed normal procedures but gave unprescribed, lethal injections).

17 See note 4, supra, and accompanying text.

18 The dissent’s reliance upon cases such as Jump v. Anderson, 58 Ga. App. 126, 129 (197 SE 644) (1938); Andrews v. Norvell, 65 Ga. App. 241 (15 SE2d 808) (1941); and Miller v. Honea, 163 Ga. App. 421 (294 SE2d 629) (1982) is misplaced. The first of these three cases, Jump, involved an employee truck driver who, while driving a truck on the employer’s business, injured someone. The second case, Andrews, involved a saloon employee charged with the duty of seating customers who, while seating customers, injured the plaintiff. The third case, Miller, concerned a union official whose duties included the handling of grievances and who, while discussing a grievance with a union member, became enraged and assaulted him. In contrast, the present case involves an employee with clearly defined job responsibilities who is accused of causing harm not while performing his job duties, but rather of abandoning altogether both those duties and the business of his employer in order to pursue a purely personal agenda that resulted in harm.