Burton v. Chen, 532 P.3d 1005

Background

Plaintiff Julie Burton was a long‑term patient at Alta Pain and alleged that physician assistant Oscar Johnson sexually assaulted and threatened her during treatment; she later settled with Johnson and dismissed claims against him.
Burton sued supervising physician Dr. Michael Chen and Alta Pain Physicians, LLC for vicarious liability (respondeat superior) for sexual assault, sexual battery, and intentional infliction of emotional distress; she also asserted separate direct negligence and negligent‑supervision claims (those direct claims remain pending).
Chen supervised Johnson under Utah’s Physician Assistant Act in effect at the time, which required a written “delegation of services agreement”; the defendants did not produce any such agreement in discovery.
The district court granted summary judgment for Chen and Alta Pain on the respondeat superior claims, concluding Johnson’s sexual misconduct was not the general kind of conduct he was hired to perform and was not motivated to serve the employer’s interests.
Burton appealed interlocutorily, arguing (1) the district court misapplied the common‑law scope‑of‑employment test; (2) the Physician Assistant Act’s “takes responsibility” language makes supervising physicians liable for acts within a delegation agreement (and, absent an agreement, allows an adverse inference); and (3) this court should abandon existing precedent and adopt a foreseeability test for vicarious liability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Chen and Alta Pain are vicariously liable under respondeat superior for Johnson’s sexual assaults	Burton: Johnson’s acts occurred during treatment and were generally directed toward the employer’s objective (pain relief), so they were the general kind of conduct he was hired to perform	Chen/Alta Pain: Sexual assault is indisputably outside the general kind of professional conduct expected of a physician assistant and was not intended to serve the employer’s interests	Court: Affirmed summary judgment — no reasonable juror could find the assaults were the general kind of conduct he was hired to perform (Wisan/Birkner test)
Whether the Utah Physician Assistant Act makes supervising physicians liable for a PA’s acts within any delegation of services (and permits an adverse inference from failure to produce an agreement)	Burton: The Act’s definition of supervising physician as one who “takes responsibility for the professional practice” means supervising physicians are statutorily responsible for PA acts within the delegation; absence of a delegation agreement allows a jury to infer unlimited scope	Chen/Alta Pain: The statute should not be read to abrogate common‑law respondeat superior absent clear legislative intent	Court: Rejected Burton’s statutory interpretation — the Act did not clearly displace common‑law respondeat superior, so it does not make Chen and Alta Pain liable for Johnson’s intentional torts
Whether this court should overturn precedent and adopt a foreseeability test for employer liability	Burton: Foreseeability (sexual impropriety as a known hazard in therapeutic settings) better balances recovery for victims	Chen/Alta Pain: Existing Utah precedent (Birkner, Wisan, J.H.) governs; plaintiff bears heavy burden to overturn stare decisis	Court: Declined to overturn precedent — Burton failed to meet Eldridge v. Johndrow factors showing the prior rule is insufficiently persuasive or firmly established

Key Cases Cited

M.J. v. Wisan, 371 P.3d 21 (Utah 2016) (adopts two‑part test for scope of employment: whether conduct is of the general kind hired to perform and whether acts were at least partly motivated to serve employer)
Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989) (earlier scope‑of‑employment framework)
J.H. ex rel. D.H. v. West Valley City, 840 P.2d 115 (Utah 1992) (upheld summary judgment where officer’s sexual misconduct was not within general nature of his duties)
Eldridge v. Johndrow, 345 P.3d 553 (Utah 2015) (sets heavy burden to overturn precedent)
Rutherford v. Talisker Canyons Fin., Co., 445 P.3d 474 (Utah 2019) (stare decisis/interpretive principles regarding major statutory changes)
UMIA Ins. v. Saltz, 515 P.3d 406 (Utah 2022) (summary judgment standard)
Rodgers v. Kemper Constr. Co., 124 Cal. Rptr. 143 (Cal. Ct. App.) (example of foreseeability‑based approach to vicarious liability)
Marston v. Minneapolis Clinic of Psychiatry & Neurology, 329 N.W.2d 306 (Minn.) (discusses foreseeability of therapist‑patient sexual misconduct)
Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968) (foreseeability of employee intoxication causing harm)
Barney v. Jewel Tea Co., 139 P.2d 878 (Utah 1943) (historical scope‑of‑employment language contrasted with modern test)