832 S.E.2d 15
Va.2019Background
- In 2013 an 85‑year‑old, incapacitated resident (Gertrude Austin) was sexually assaulted and raped in her nursing‑home room by nursing assistant Martin Matthews Martin. The Estate sued Martin and Our Lady of Peace (the nursing home). A jury returned a verdict against both defendants for $1,750,000.
- The Estate alleged vicarious liability (respondeat superior) against the nursing home and multiple direct‑negligence theories (hiring, supervision, operation, failure to protect, etc.).
- Our Lady of Peace filed a plea in bar contesting respondeat superior. At that hearing the nursing home presented limited evidence about policies and employment; the Estate presented no evidence and argued scope was a jury question. The trial court nevertheless issued an order and later a motion‑in‑limine ruling finding, on the merits, that Martin acted within the scope of employment and barring the nursing home from presenting contrary evidence at trial.
- At trial the court instructed the jury that the scope‑of‑employment issue had been decided for the plaintiff and excluded the nursing home’s proffered nursing‑home‑administrator expert under Code § 8.01‑581.20(A) while admitting the Estate’s expert on standard‑of‑care issues (the latter testimony was later deemed within common knowledge).
- On appeal the nursing home raised (1) error in removing the vicarious‑liability (scope) issue from the jury and deciding it on the pleadings/evidence at the plea in bar, and (2) erroneous evidentiary rulings excluding its expert and admitting the Estate’s expert. The Virginia Supreme Court reversed and remanded for retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly decided, pretrial, that the employee’s sexual assault/rape occurred within the scope of employment (respondeat superior) | Estate: complaint pleadings + scope‑of‑employment presumption suffice; scope is typically a jury question and court should allow the issue to go to the jury | Our Lady of Peace: plea in bar and evidence at hearing sufficed to rebut the presumption and court could decide scope as a matter of law | Reversed: trial court erred by making a pretrial factual finding on scope based solely on the complaint/hearing evidence and by precluding the defense from presenting evidence at trial; scope was for the jury absent indisputable facts permitting decision as a matter of law |
| Whether the respondeat superior pleading alleging simultaneity of job tasks and wrongdoing self‑refutes the scope presumption for rape | Estate: pleading that assault occurred while performing duties sustains the presumption and survives pleading stage | Our Lady of Peace: allegations of rape are categorically a marked deviation and rebut the presumption as a matter of law | Mixed: court held molestation allegations could plausibly occur during job tasks; rape allegation is unlikely to be simultaneous but precedent (Plummer/Majorana) and the scope presumption mean the complaint barely survives pleadings; resolution for trial rather than dismissal |
| Admissibility of nursing‑home‑administrator (defense) expert under Code § 8.01‑581.20(A) | Estate: (opposed admission) not significant on appeal | Our Lady of Peace: admin has active clinical practice as nursing‑home administrator and is qualified to testify on nursing‑home standard of care | Held: trial court erred in excluding the nursing‑home‑administrator expert—administrator experience fits statute’s purpose; exclusion reversed |
| Admissibility of Estate’s expert testimony that the employee’s sexual acts violated the standard of care | Estate: expert testimony appropriate | Our Lady of Peace: these opinions are within jurors’ common knowledge and expert testimony should be excluded | Held: trial court should have excluded this expert testimony as it covered matters within jurors’ common knowledge, but admission was harmless on the record and not reversible error; should not be repeated at new trial |
Key Cases Cited
- Plummer v. Center Psychiatrists, Ltd., 252 Va. 233 (Va. 1996) (trial court erred in holding sexual assault outside scope of employment at pleading stage; scope question for jury on remand)
- Parker v. Carilion Clinic, 296 Va. 319 (Va. 2018) (articulates job‑related‑service test: employer liable only when tort occurred while employee was performing a normal function of assigned job; motive and deviation analysis)
- Gina Chin & Associates v. First Union Bank, 260 Va. 533 (Va. 2000) (motive may be dispositive when deviation from employer’s business is marked and unusual; otherwise fact question for jury)
- Majorana v. Crown Central Petroleum Corp., 260 Va. 521 (Va. 2000) (addresses burden and presumption in respondeat superior; employer may be held liable absent facts rebutting presumption)
- McNeill v. Spindler, 191 Va. 685 (Va. 1950) (classic statement: master liable only when servant was in course of employment; independent ventures suspend master–servant relation)