*1
John GARCIA, Defendant,
Fred Holy Cross, Al-
Sisters St. d/b/a phonsus Regional Center, Medical
Defendants-Respondents.
No. 23608. Idaho,
Supreme Court of
Boise, December 1997 Term.
March 1998.
Rehearing July Denied *2 Nevada, Reno, sexually for
(St.Mary’s) in Nei- patient a in December 1985. molesting supervisor, EAP nor her counselor ther admission, advised she told of Garcia’s whom hospital about employees other patient. a prior conduct with Garcia’s minor, (Doe), patient Doe was a John begin- period of six weeks for 1,1988. hospital- August During his ning on therapy ization, respiratory Doe received personal relation- from Garcia formed and hos- ship. Following Doe’s release from develop his rela- pital, Garcia continued Holden, Kidwell, Crapo, Hahn Idaho & discharged was tionship with Doe. Garcia Falls, Perry appellant. for Shan Butcher encouraging for hospital in June 1989 argued. alcohol underage employees consume During so. the sum- being warned not to do Skinner, Boise, trill, King, Sullivan & Can left the mer of 1989 after Garcia respondents. Tyra argued. H. Stubbs began sexually molesting Doe. JOHNSON, Justice. Garcia, wife, against filed Doe suit supervision negligent This is hiring hospital requested hospital. The and the genuine ease. conclude that there are We summary judgment grant the trial court preclude fact sum- issues material pur- dismissing negligence action. For Doe’s mary judgment. poses request, of this asked negligent that it trial court to assume was
I. hiring supervising At the same Garcia. time, discovery con- requested Doe further THE AND PRIOR BACKGROUND duty, foreseeability, and cerning the issues of PROCEEDINGS discovery breach. trial court denied the (Garcia) employed by judgment. Fred became request granted summary Alphonsus Holy Cross rulings, Sisters dba St. this Court appealed Doe both (the as Regional hospital) Medical Center Appeals. assigned the ease to the Court of respiratory therapist September Appeals ruled that the trial The Court During process, hiring re- motion re- court should not denied the Garcia, application completed viewed an necessarily discovery, questing further past employers, contacted one of Garcia’s vacating grant of sum- required the personal hour a half interview. conducted Holy judgment. mary Doe v. Sisters process nothing This revealed out Cross, 1036, 1044, 895 P.2d Idaho Shortly ordinary af- and Garcia was hired. (Doe I). (Ct.App.1995) The Court employment at the began ter Garcia hos- court Appeals the case the trial remanded pital, reprimanded encouraging he discovery “regarding the permit further underage alcohol. employees consume psychiatric hospital’s knowledge of Garcia’s sought Also in fall of Id. history proclivities----” and sexual Employee services of the Assistance Pro- discovery Following completion of (EAP) quite “being he gram for what termed again requested of EAP preoccupied with sex.” The staff summary judgment. This time the directly employed by hospital. Dur- it was ask trial court assume did not counseling ing one of the sessions Garcia had (the supervising Garcia. EAP, counselor he admitted to a counselor) granted summary judg- again trial court that he terminated EAP had been Regional appealed. ment. Mary’s from St. Medical Center problem II. cussed his sexual EAP counselor in the fall of he talked in A THERE IS GENUINE ISSUE OF MA- being “preoccupied terms with sex” and TERIAL FACT THE CONCERNING “any partner stated that will do.” IN HIR- HOSPITAL’S NEGLIGENCE *3 Although designed the EAP was around ING GARCIA. confidentiality, presented the evidence in Doe asserts that trial court should hospital’s request connection with the granted summary judgment not have dis summary judgment that the EAP indicates missing negligent hiring his claim. We gained counselor would reveal information agree. an employee if “someone was in dan- Garcia, hospital Before did not EAP ger.” The counselor was concerned for inquire about the circumstances Garcia’s patients hospital the welfare of Mary’s, place termination at the last St. learning problems. of Garcia’s sexual At the employed respiratory which Garcia was propensities time his sexual Garcia revealed therapist. presented in con- counselor, evidence the EAP no statute or to common hospital’s request precedent nection for sum- made the law this state commu- mary judgment Therefore, indicates that St. privileged. nication EAP Mary’s inquiry followed when it an received duty had a disclose counselor to the informa- concerning a former was to hospital. release tion to others at As the em- employment positions counselor, dates held. ployer hospital EAP would, Mary’s however, release an responsible St. em- for the of the EAP failure coun- personnel employee upon ployee’s file to the to do selor so. request. personnel
written Garcia’s file from Mary’s St. contains an that indication IV. reason his dismissal sexual molesta- patient. purposes summary tion of a For A THERE IS GENUINE ISSUE OF MA- judgment, the reasonable inferences we TERIAL FACT THE CONCERNING the nonmoving must draw favor of Doe as HOSPITAL’S NEGLIGENT SUPER- party requested are that had VISION OF GARCIA. obtain file from Garcia the trial Doe asserts that court should Mary’s, St. Garcia would have done so and summary granted judgment have dis provided to
would the file missing negligent supervision. his claim for genuine for its review. This issue creates agree. We of material fact whether the knowledge Because of the hiring Doe. through the EAP counselor Garcia’s sexual genuine issue of ma- propensities, there is a III. fact could have terial whether the THE EAP HAD A COUNSELOR DUTY prevented injuries by taking Doe ac- to INFORM AT THE TO OTHERS HOS- supervise a manner that tion Garcia PITAL OF GARICIA’S SEXUAL prevented would have establish- PROPENSITIES. relationship during ing Doe’s hospitalization. EAP Doe asserts that counselor duty to inform had a others at propensities. agree. We V. is a assistance and EAP mental health MA- ARE ISSUES OF THERE GENUINE employees service available referral TERIAL THE FACT CONCERNING hospital. The materials dis- LIABILITY THE HOSPITAL OF employees concerning EAP tributed its FOR DOE’S INJURIES. private nature confidential and
indicate the trial court Doe asserts that should EAP services. EAP counselors are em- Garcia dis- not have dismissed his claim ployees When genu- propensities create a of Garcia’s sexual him and that the its toward breached concerning whether injuries. material fact proximate cause of his ine issue of breach was a have foreseen agree. We position use his “ rule that ‘one follows the This Court relationship patient that would with a form a society every person our owes the pa- develop into sexual molestation injury to use to avoid reasonable care dispute that this tient. The does person in in which it other situation injured Doe. molestation reasonably anticipated or could be foreseen might use care result of the connection Concerning the closeness failure ” Payonk, injury.’ Alegria in such in- hospital’s and Doe’s conduct between (1980) Idaho P.2d acquainted and jury, and Doe became *4 Furthermore, (emphasis original). there in relationship while Garcia adminis- formed a duty “general person a rule that has a is each therapy to Doe at the hos- respiratory tered unreasonable, prevent of to foreseeable care pital. Although it months after was several Sharp v. risks harm to others.” of W.H. relationship of this that Garcia the formation Inc., 297, 300, Moore, 118 P.2d Idaho 796 Doe, is the connection sexually molested (1990). 506, Long, 127 Idaho 509 hospital the enough place duty close to a on Rife 841, (1995), P.2d 143 the Court said: 908 relationship allow Garcia to form Determining duty will in a whether a arise eventually injured Doe. Doe that particular instance a involves consideration blame, Concerning moral because there is policy weighing of the several fac- and of the genuine of material fact whether a issue tors include: hospital aware of could have become Garcia’s foreseeability plain- of harm to the [T]he the dangerous propensities before tiff, degree certainty the of the Doe, hospital is allowed Garcia to treat there injury, suffered the of closeness be question a about the moral blame to the connection between the defendant’s hospital hiring its and placed on the suffered, injury the conduct the supervision practices. Concerning social the to the moral blame attached defendant’s harm, policy preventing future the same conduct, preventing the future analysis question a whether indicates there is harm, the of the to the extent burden prevent hospital duty the had harm consequences com- defendant byDoe Garcia. munity imposing exercise breach, liability for resulting care with Concerning the burden would cost, prevalence availability, and the hospital placed imposed if a is (cita- of insurance the risk involved case, genuine issues of material fact omitted). tions concerning of Garcia and the through EAP knowledge hospital 846, at Id. 908 P.2d heavy is not indicate that there counselor summary judg In the context of hospital in the placed on the exercise burden pres ment granted trial court hiring practices EAP disclosure its first we question ent must ask procedures policies. genuine under there is a whether Rife fact concerning issue material whether the availability Concerning for the insurance injury could have foreseen to others risk, presented any evi- has Foreseeability “includes what Garcia. dence to show it lacks insurance cover- likely enough setting ever result age risk in this case. for the involved reasonably prudent person that a modern life question proxi guiding into rea then turn to the would take such account We 301, po presents multiple mate This Sharp, 118 Idaho at cause. case sonable conduct.” added). (emphasis gen ultimately for the harm suf 796 at 510 The tential causes P.2d (1) negligence, any, if concerning uine of material fact fered Doe: issues (2) the negligent hiring knowledge negligence, any, Garcia and (3) eon- parents, had EAP and his the intentional through the counselor 582
duct of Garcia. substantial factor test is revealed or which proper proximate analysis cause when would have been revealed had the potential more than inquired, there is one cause of the which would have indicated injuries. County, posed Le’Gall v. Lewis 129 Idaho chil- that Garcia risk to 182, (1996). 427, patients. A P.2d “sub dren or adolescent Garcia was stantial factor” is one that “in natural or hired. probable sequence, produced damage not reveal to the did complained of’ or one “concurring with some discharged he had been acting time, other cause at the same which in improprieties for sexual Nevada it, damage.” combination with causes the patient, pleaded that he guilty Clair, v. St
Fussell Idaho type of sexual Cali- some misconduct in a (1991). 295, 299 P.2d However, park fornia in 1982. plaintiff has purposes summary judgment,
For failed to show how the defendant genuine concerning is a issue of items, material fact learned of these even relationship the formation whether upon inquiry. evidence in between Garcia and Doe while was an record is that Nevada was a and Doe not have revealed the circumstances patient, a substantial discharge directly. factor in the causa- even if asked *5 injuries. tion of Doe’s who for testimony The individual offered stated that it was Nevada divulge their to no information other
VI. than dates when asked CONCLUSION prior employees. An about official record at of the California incident is not available summary judgment We vacate and re- today, all. Even reference to case for further proceedings. mand the incident California comes from Garcia’s costs, fees, attorney We award Doe but not presentence own admission investi- appeal. material, gator’s brought light in con- prosecution nection his criminal TROUT, J.,C. and SILAK and Viewing the misconduct of this case. WALTERS, JJ., concur. favorably plain- evidence most toward the SCHROEDER, Justice, dissenting. tiff, proof any no there is information Alphonsus reasonably which could have St. respectfully opinion dissent from the employ prior to its obtained decision to a com- the Court. district court wrote any Garcia which would have caused it prehensive opinion analyzing the facts and proclivities. Fur- concern his sexual over this Court follow. the law which ther, proof is no that the measures adopt reasoning by and result reached follow, securing a Alphonsus St. did that of pertinent court and set forth district employment application, inter- detailed opinion portions court as district applicant viewing verifying some my quote: To dissent. listed, employments prior was sought employ- In Fred Garcia under circumstances. reasonable Alphonsus Medical Regional ment at St. any offered no evidence of Plaintiffs have respiration posi- a therapist, as a Center pro- different methods would have academically which he was tion for sugges- results. duced different Plaintiff’s medically qualified. He stan- filled out they they investigated tion harder that prior application form which dard listed something might found is insufficient hospital did not employment. While the jury issue. create a prior employers, all of his those check with was hired Garcia was offered contacted either commented After he who were pro- “employee satisfactory employee had been a or access to an assistance EAP, point gram,” fringe benefit of his comments. Plaintiff cannot made no pro- Alphonsus. employment with St. This any references which time Garcia’s sometime, hang they suggesting mental gram provide was intended counselling employees together. health out In Novem- employees need. families after Doe was released A month or so sought a counsellor ber of out hospital, Doe contacted Garcia EAP, to her under the revealed friendship. On the two commenced by said he he was troubled what she occasions, parents least Doe’s at several addiction,” claiming that termed “sexual home for visits. drove Doe to Garcia’s compulsive, “any part- feeling when he was any no or claim of There is evidence ner would The counsellor discussed do.” early contacts. during these misconduct problem professional her su- hospital was is no There evidence pervisor, Both a clinical social worker. them. aware pro- by their considered themselves bound pa- confidentiality fessional as to rules discharged Garcia was June of They tient communications. determined Alphonsus. again He had solicited at St. that Garcia’s revelations did not constitute go drinking, under-age employee to de- an display others of imminent threat warning. spite the When the verbal any specific They con- identify target. nor it, he found out about tal administration pro- they were their cluded that bound from St. fired. After he fired confidentiality to make fessional rules Alphonsus, he became taxi driver. said to disclosures about what Garcia had aware Garcia had family and his were Therefore, anyone. the counsellors under although been terminated program the EAP did not reveal it, they were not aware reason this to administration they that he had become were aware prior discovery pro- relevant time taxicab driver. ceedings testimony of of this lawsuit. The *6 what said counsellor about Garcia had July of Beginning in while Garcia her was obtained after Garcia a taxi and after he had been was driver therapist-patient privilege waived discharged hospital, began to by the Garcia remand in this connection sexually Doe. The molestation molest John discovery by appellate court. mandated 1992,when it discover- continued until was dispute There is no of this had none during Doe’s At no time ed father. light during come to was time Garcia continuation this molestation was there employee hospital. an and the connection between Garcia ap- Also November Garcia hospital or John Doe and between proached under-age em- several adult but hospital. ployees hospital invited them and prosecuted Garcia was and sentenced employees’ out for a beer. One this prison. and his father started Doe complained father of this learned and against hospital. action Garcia administration. summary filed motion for warned administration for judgment. filed a motion under-age employees go to invite out 56(f). drinking. discovery further under IRCP permit fur- plaintiffs denied the motion to Doe, August age John then summary discovery, granted ther thirteen, seriously injured bicycle judgment hospital. in favor of the Plain- hospitalized Al- accident. He was at St. appealed appellate court re- tiffs phonsus approximately weeks for six versed, holding that additional discov- August September of permitted ery should have been before respiration therapists, was one of his summary judgment was All considered. apparently regular Doe on treated basis discovery accom- additional has now been hospital. he in the the last while was On plished, again has filed his day stay, gave Doe’s telephone summary judgment. him call number and motion told
[*] [*] [*] [*] whether it would have revealed the true reason for discharge, his or whether the Analysis Nevada would have left such ma- I. terial the file before it was sent out. In event, pure speculation it is to assume Plaintiff Failed to Negligence Establish that Garcia would have transmitted the file on Hospital the Part of the prospective intact to employer. his Plain- Hiring of Garcia. argument tiffs point on this entirely too dispute There is no that Garcia was a support theory tenuous to negligence properly qualified respiration therapist jury. and create an issue for the applied when he Garcia did reveal a DUI conviction on defendant in 1987. He filled out employment application, but did job and submitted a application standard say anything about a criminal conviction form to the He listed three nurs- some kind in California in 1982 which did ing homes and a in Nevada as his involve improprieties. Plaintiff has prior health employment. care The defen- proof offered no personnel dant’s manager contacted one of have discovered the California criminal previous employers and received a fa- by any conviction reasonable means. The vorable recommendation. The other nurs- only evidence in the record is that ing homes would have advised that Garcia up criminal conviction does not show asked; was a suitable neither records, Idaho law enforcement and would any derogatory would make comments not have been revealed to the even employment. about his hospi- The Nevada inquiry if an had been made. tal would have confirmed that he was an employee of their according but There is no evidence in the record that to their would have made no further proce- did not follow routine comment. dures in respiration of a thera- pist. There is no evidence that the learned,
It was later after all of the gained any tal information whatsoever giving events rise to this lawsuit had come put inquiry should have it on light, that Garcia discharged had been potential problem there was a in Garcia’s from the in Nevada for a sexual background. There is no evidence that if impropriety patient. with an adult male *7 hospital pursued had all of the refer- However, there is no evidence that ences, prior all talked to of the em- in defendant this ease would have learned ployers, it anything would have found out of this in job ap- connection with Garcia’s incriminating of an against nature Garcia. plication. deposition represen- The of the argument employ- Plaintiffs that Garcia’s hospital tative from the in Nevada reveals nursing positions ment with in homes be- only information which would have low his credentials and after he left the given been to the defendant would have hospital Nevada should have raised a sus- been a confirmation of dates. picion part pure on the is The Nevada would not have dis- supposition. Even had been its firing upon closed reasons for suspicious, proof they there is no of where inquiry employer from another seeking to gone anything could have out find differ- confirm references. ent than what in was revealed the investi- argues Plaintiff that the defendant could gation they accomplish. did have obtained waiver from Garcia and requested personnel recognize files from the ugly Ne- that all sorts of infor- argument pure sup- vada The mation has come out about Garcia since his position. representa- The Nevada stemming criminal conviction from the However, tive plaintiff stated that would have events this case. Garcia, sent the if requested, point file to but not single ugly cannot to a item of the Alphonsus. to St. no Alphonsus There is evidence of facts which was available to St. file, personnel what in was contained at the time of its to hire decision Garcia. to the plaintiff offers The evidence malevolent The test not how be; supervision involves negligence is whether there issue turned out the test young co- any despicable char- with two indication of his Garcia’s interaction was under-aged knew or should employees. acter Garcia invited two prior his hire. In this men, join have detected him for young aged 18 and presented, the facts of one a beer work. father has failed conclude objected men young any indication of show evidence administration, reprimand- and Garcia was pedophilia which was known Garcia’s latent again, fired. happened he was ed. itWhen it to the or of which all of the available According to evidence aware, prior or to the decision to been time, thought that Garcia’s at the no one hire him 1987. young two men were toward the actions upon plaintiff, proof The burden of think The father did not nature. upon proof plaintiffs this failure gave was approach sinister negligence collapses. claim to the reporting when it indication of such summary judg- Defendant is entitled to just did not He administration. theory. on this ment under-age drinking. son want his the invitations young men did not consider II. sexual; they thought to be Any has Plaintiff Failed to Establish homosexual, they perhaps weird but Negligence Evidence of There is no evidence were not threatened. Supervision of Garcia brought possi- employees Negligent supervision generally homosexuality falls ble to the attention (1) the categories: supervisors into three homosexu- administration. Mere pay respond ality, failed to attention and ade- if mentioned to event even administration, or quately complaints give comments from patients or sources about the con- outside any suspicion pedophilia. rise to (2) employee; supervisors duct of an hospital’s no indication that the There is pay respond failed to attention and to com- approach reprimanding and then of first plaints or comments from co-workers and un- appropriate discharging Garcia inside sources about conduct of then known der the circumstances (3) employee; or supervisors failed to involved. and all individuals adequately observe them- anybody suggestion There is no selves, signals and become aware of thought anything of this to do performance. signs improper pedophiliac possibility of Garcia’s There is no claim in this case that Garcia adolescents. attraction to respiration therapist. adequate was not an *8 hospital, as argues that the plaintiff any no in this case There is claim that community, tertiary provider in the care improprieties sexual occurred between proclivity of been aware of the should have was a patient and Doe while Doe potential pedophiles groom to recruit and hospital. no claim in this case There is time, period of that the and victims over any patient hospital complained that have young the two men could invitation to any anyone in or made comment to in the been construed as first move about im- administration sexual process pedophile. of a Howev- grooming proprieties patient and a between Garcia er, men instance young two in this There is no claim this case adults, no ration- any supervisor anything, that were not children. I see that saw or see, episodes involv- anything concerning argue to al basis to there was ever under-aged any ing drinking by could pertaining improper to adults two, pedophiliac recruit- or construed as indicia contact between the between Gar- reasons, further ing. as is any pertaining to For these cia and other adolescent below, accept to improper discussed decline sexual behavior. dential, jury argument contention that a they by can be and that were bound their professional made out any them, of the instance. not to reveal code anyone. to argue Plaintiffs that Garcia received no undisputed It is in this case that training in patients. ethical with conduct mental health counsellors did not warn or However, plaintiff no offered indication of notify any administration training given, what have been or by deviant revelations made to them even training whether available. Garcia. Plaintiff has failed to demonstrate speculative is insufficient contention professionals that these mental health create an jury. issue of fact to take to a so, do or failure on Taking all of the evidence before the part chargeable against their court, construing favorably it most tal. contentions, plaintiff’s toward the I am un- Although Idaho enacted Code any proof able to find conduct. § 6-1902 is instructive. This section re- reports by patients There were no pa- or quires professional give a mental health tients’ families or his about Garcia conduct professional a warning only where the has overlooked; supervisors which the “explicit knowledge of an threat of immi- complaints were no from other workers nent physical clearly serious harm ... to a about involving sexual misconduct victim.” identified or identifiable The stat- or anything possible which had to do with appears ute codify existing common pedophilia; only complaints which professional law with reference to stan- were promptly; received were handled therapists dard to health which mental finally, exception the communi- It counsellors are bound. is consistent counsellor, cations with the EAP there is client-therapist privileges of coun- signs signals evidence of direct sellors set forth and social workers as IRE supervisors which the observed ease, and 518. this testi- tipped which could them off about mony from the counsellor involved with proclivities. Garcia’s illicit The EAP com- general feeling Garcia concerned his privileged, munications as is are noted be- pressures. The counsellor testified low, and never came to the attention of the explicit that there was no threat made and hospital administration. no identifiable victims. She discussed the proof plaintiff The burden of is on the on ease with supervisor, her and the two theory, this some point to evidence of counsellors determined there was no part misfeasance or on the nonfeasance professional duty basis to violate their give jury rise silence. question negligence supervision Proof of a violation Garcia. plaintiff conclude that has professionals in health care connection so, failed to do the defendant professional gov- their activities is summary judgment is entitled to §§ 6-1012 erned Idaho Code and 6- theory. prove 1013. To a breach of the standard expected providers, of care of health care III. produce expert obligated testimony § required as Idaho Code 6- Employee Disclosures 1013 to the the health care effect Program Assistance Counsellor professional examination failed to under *9 Privileged. Remains expected adhere to the of care of standard par- The EAP counsellors of the are not community. providers like Plaintiff the suit, they ties to this neither nor the has not done so in this case. There is no malpractice basis, then, been sued that the to assert counsellors failing dangerous proclivi- to warn any duty failing of the to dis- breached owed only testimony ties of in the close Garcia’s Garcia. The the content of revelations. Therefore, is that there is no basis assert liabil- record the counsellors considered provid- ity part on mental health the disclosures Garcia to be confi- the of the made Doe his card and told potential gave Garcia him failing to warn of Garcia’s ers sometime, they could suggesting that dangers to others. call in this en- hang together. Instructive out question whether there can The remains testimony recollection in the counter is the professional of the any duty outside be said, “Hi, my is Fred.” that name the revelations made to to deal with any social only evidence of not, This is the think on the counsellors Garcia. the two at the between undisputed that counsel- the evidence the encounter no is them recall. There that either of what said in fact not reveal lors did con- criticism of and no proof evidence anyone. There is no that any therapy of the sessions. during duct way in any involved counsellors were any other social no evidence hospital. There is management of the There is time during encounter between two expected report proof they no that were hospital.1 patient Doe was any details of the counsel- programs; EAP ling under the conducted was released Within a month Doe fact, exactly the proof was relationship hospital, friendly expected opposite: they to hold that were testi- began Doe and The between Garcia. pro- everything through the EAP learned early mony contacts indicates gram strict confidence maintain suggestive, but were were sexual or credibility program. friendly. parents were overtly Doe’s no Because counsellors were under friendship, it. supported aware of duty professionally, and because there is hospital was no evidence that the There is proof any expectations no administrative undisputed of this. It aware of area, argu- in this there is no basis to the away contacts were these social charged ment that on his own and while Garcia was knowledge providers. of the mental health any of is no contention time. There proof Since there is no breach of purported con- were to be these contacts counsellors, part on the there can There is no business. nected argument no liable for pre- or contention that Garcia evidence malfeasance or nonfeasance the counsel- on or that tended to be business respondeat superior. lors under representative he himself out held the fact early conclude that that Garcia in connection with these sought program from the EAP assistance encounters. nothing adds to this ease and has no im- began, Finally, before molestation
pact upon proof lack of by the He soon hospital. fired supervision hire or as such the lia- affects a taxicab Doe and went to work as driver. bility hospital. job that he his family his knew had lost long- no hospital, and that he was
IV.
Alphonsus. They knew
working
er
for St.
Shortly
Duty
Any Theory Negli-
job
driving
taxi.
Owed Under
new
job
began driving
gent
Negligent Supervision
after he lost his
Hire
taxi,
began
molestation
Does Not Extend Past
Termination
he
Thereafter,
Employment
episode
Doe.
no
of sexual mo-
Under
the Circum-
stances
ever occurred on the
of This Case
lestation
premises.
evidence
contact between
Garcia,
undisputed and clear
respiration
The evidence is
Doe and
other than
impropriety
misconduct or sexual
therapy
to Doe and over
administered
transpired
complaint,
between Garcia
apparently
is no
kind
property,
Doe was
leaving
or while
occurred
Doe was
as
However,
the event
Doe has no recollection of
1. Doe testified that Garcia once told him that
itself,
actually hap-
while Doe
Garcia had offered
was in
Garcia denied it ever
happened
oral sex. Doe said this conversation
pened.
*10
years
hospital.
in
about
two
after he was
the
onk,
(1980),
patient,
or
employ-
a
while Garcia was an
101 Idaho
not held liable in be under use care to injury reasonable avoid plaintiffs construction of either under person the in in other situation theory negligent of the hire or reasonably anticipated which it could be supervision, as a matter of law. or that the failure to foreseen use such around, injury.” in might care result The first time con- pur- the issue negligence ceded of for the case, I In think the this issue does turn that, pose accepting its I of motion. ruled duty i.e., on the of a existence exis- — concession, hospital’s could there still duty employer of an tence of a towards proximate be no cause because the circum- patron former of the business for the acts appel- stances were too attenuated. The of a former which acts are not disagreed, late court concluded company premises. carried out on Alter- negligence was of part assumed on the natively, upon issue turns the limita- bringing in together, the two liability legal policy tion of as a matter of broadly negligence had to be construed attenuation of the of based on the chain reason, very limit leaving of the funda- proximate when the target causation actor mental issues of “but for” or “substantial in longer employ is no of the defen- analysis factor” imbedded within the of customer, dant, longer the victim is no proximate jury cause to be issues. company and the acts do occur on property. motion,
In the renewed does negligence, argues concede but Long, In v. Idaho 908 P.2d Rife is no negligence evidence of (1995), supreme court discussed above, part. its For the reasons I stated applied to be the standards when deter- agree if I am But even mining duty or not a whether my wrong negli- assessment of claims recognized. issue that case was gence, longer obligated am no to con- duty of a whether the school district negligence extent of strue the the claimed protect from harm should be ex- students broadly; obligated am now to construe tended to activities the students off the allegations negligence to the premises, school while the students were plain- limit the evidence offered traveling This is analo- home. somewhat evidence, upon tiff. Based I further gous question, instant where the acts specific that none of the conclude duty under examination is that the hos- alleged by nonfeasance malfeasance pital protect individuals who are no part plaintiff on the predators longer patients from who are liability in this form the foundation for away for acts longer employees hos- law, as a matter of the results case because pital premises. concluding that foresee- reasonably extended, in this case were not not be duties owed should the time. able at court held: Rife Foreseeability concept. Determining duty is a difficult whether will arise appellate court noted that the issue particular instance involves a consider- However, jury. for the and as generally weighing policy ation of of sev- noted, foreseeability appellate court eral which include: factors determined matter law when foreseeability plain- of harm to the “The existence limita- issue is or the tiff, degree certainty policy. liability legal as a matter of tion of injury, the closeness suffered foreseeability the connection between the defendant’s The connection between conduct, Pay- preventing future recognized Alegria
589 very foreseeability harm, for is potential the able the of the burden to extent slight. overwhelming the authori- Since consequences the com- defendant and liability employer ty the of an holds that duty to munity imposing of a exercise employee as for acts of an breach, liability resulting for care with —whether for respondent superior or a matter of cost, prevalence availability, and the supervision— in negligence (cita- risk of insurance for the involved employ- with the termination ends omitted).” tions ment, only question is whether Hosp., Huntington v. Memorial Isaacs former that the the fact 653, 658, 211 P.2d 38 Cal.3d patient change involved are should (Cal.1985). respect Cal.Rptr. With mind, my be In it would consideration. harm, foreseeability this to the onerous unacceptably burdensome and has Court stated: a be demand concept a flexible “Foreseeability is investigate job applicants expected which varies with the circumstances becoming predatory potential their degree each case. Where the of result being the risk held pedophiles, at preventing it is not great, or harm is but responsible conse- financially for the difficult, relatively degree low of fore- employee hired who quences if an is Conversely, seeability required. is afflicted, proves to be where later injury where the is minor but threatened beyond the termi- liability is extended injury is preventing the burden of away employment, nation of to activities foreseeability high, degree higher from and with individuals may be required.” Conversely, longer patients. who are no 300-01, Sharp, at at 118 Idaho 796 P.2d young patient of harm risk alia, Isaacs, (citing supra). 509-10 inter relatively slight, youth that the Cit., Idaho, Op. p. P.2d par- into discharged back the care of his view, my purported In which mind, my tips this the balance ents. upon hospi- have imposed to be expressed Long flexibility, Rife tal in this in order to create case above, completely against quoted liability plaintiff satisfy any fails to extending basis for reasoned criteria established beyond Rife. in this area either the ter- — (1) “Foreseeability of harm to activities mination of or to (as plaintiff consequence alleged away or towards indi- duty).” longer patients. breach of As I read criteria are no this viduals who — in context the facts of it (2) degree certainty “The asks to what extent should a (as a conse- injury suffered expected possibility to foresee the alleged duty).” quence of the breach of by employee an to- misconduct degree think there is a substantial youthful patient wards off the in the uncertainty as the number of links premises, patient after the has been dis- probability as the chain of increased charged the employee and after has moved from the introduction events way, another it asks been fired? Stated instigation abuse. patient an to what extent can adolescent can be accused thing that reasonably expect providing opportunity parents this ease is meet; protect youth harm and Doe to but happened else- employee reality, which arises after this could former Furthermore, discharged, patient off the where and time. has been premises, evidence that in activities are there is no any opportunity intervene purposes, not connected to introduction, it relationship after the as which occur after the is no away hospital? developed entirely from the longer employed tal, examined, time while Garcia was on his own way Whichever this issue discharged. On indisputable it Doe had been think the reason- and. *12 590 hand,
the other
undoubtedly
were
employees
teractions of former
with for-
certainly
parents,
patients,
his
for exam-
mer
questionable
is the
fairness
others —
ple
opportunity
imposing liability
did have the
for conduct over
—who
intervene
which the
but did not. When
defendant has no control.
the chain
To
mind,
my
it
causation is
is an unreasonable
so attenuated and the
burden to
expect
employer
to continue to moni-
causing injury
acts
are so remote from
tor the
ex-employees
conduct of
in their
giving
the event
rise to the claim of
patients
interactions with former
carried
liability, I conclude that the
tips
balance
away
on
from the
and that this
against extending
duty
on this as-
tips
against
the balance
recognition of a
pect
analysis.
of the
duty in this area.
— (3) “The closeness of the connection
reasons,
For all of these
I conclude that
between the defendant’s conduct and the
any duty
by hospital
owed
in connection
injury suffered.” There is no direct con-
supervision
of.a
nection between the defendant’s conduct
tal employee,
potential
toward the
for that
per-
and the molestation. There was no
employee sexually molesting
patient,
relationship
sonal
between the
necessarily
extend
to the activi-
hospital’s
and Doe. The
involvement with
ties of
employees
which are conduct-
August
September
Doe was in
during
period
ed
employment,
or on
1988; the
begin
molestation did not
until
hospital premises, or
patients
with current
July
sometime in
of 1989. It did not
events,
In
duty
hospital premises.
occur on
For the
owed under
theory
liability
this
reasons
noted
the examination of cau-
beyond
period
not extend
employ-
sation, any connections which did exist
ment
actions of an individual who is no
significantly
were
attenuated and re-
longer employed, toward a victim who is no
mote. This
signifi-
element can have no
longer
patient
and where all of the acts
bearing favoring
cant
the extension
aof
giving
liability
rise to
away
occurred
duty.
hospital premises.
— (4)
moral
“The
blame
to the
attached
The few
plaintiff
eases cited
defendant’s conduct.” There is no co-
oppose
clearly
this conclusion are
distin-
gent argument justifying
placing
guishable on their facts. Lou-Con Inc. v.
any moral blame on the hospital admin-
Services,
(La.
Building
molestation but Pittsburgh Nat. Bank cinctly cab, fully stated parents were and Doe Perr, Pa.Super. A.2d 334 Further, part this. of Garcia’s aware of (1994): job contacts regular personal involved premises, and patients away plain- particular a harm to a Even where *13 any rea- parents Doe nor had neither may reasonably foreseeable tiff be job when expect that he was on the son conduct, that con- the defendant’s personal relationship that led' began the he plaintiffs the cause-in-fact of the duct to the molestation. harm, law makes determination that, point along the casual at some Eno, Marquay v. Finally, cited chain, liability The term will be limited. (1992) 708, 662 272 where 139 N.H. A.2d cause”, “legal cause” is “proximate or the court held the school district by courts considerations applied to those negligent held liable under theories fact liability, limit where the which even negligent supervision where hire and can Be- causation be demonstrated. students, where teachers molested convenience, policy, or a public cause school episodes campus, occurred off after justice, law arbitrari- rough sense hours, graduation. even Howev- of events ly to trace a series declines er, responding in Marquay the court longer a beyond point, a certain as no court, to a certification the federal consequences “proximate” “legal” or broadly stating and was therefore the law naturally wrong- flowing from the [sic] prem- under an assumed of facts. It set put simply, it at misconduct. To doer’s findings upon the its in this area ised will be point, negligent conduct a certain special relationship existed notion that a too from the harm viewed as" remote and its stu- between school district plaintiff, not a arising to the and thus dents, whereby loco stood in the district bringing factor in about substantial no such parentis to its children. There is harm. plaintiffs special relationship hospital and between a analysis proceeds terms Whether patients. its former “proximate “duty”, “foreseeability”, or in the my Most instructive mind is cause”, must of Pros- we remain mindful Hampshire observation that New court’s that our and Keetons admonition ser be a there must casual connection between inquiry in cases is essential these wrong employment. and the The court same: held: for- proposed “in all of these rules and hiring or negligent A cause of action for courts have been mulae the and writers retention, however, not lie whenev- does difficult, if groping something that is unfit employee er an commits a criminal impossible, put into words: some a known or tortious act consistent with con- limiting liability to those method propensity. As several courts reasonably sequences which have some properly recognized, plaintiff must cióse connection with the defendant’s “some be- establish connection [casual] originally it conduct and harm which plaintiffs injuries and the fact tween threatened, and not so are themselves employment.” omit- [Citations one and unusual as to lead remarkable neces- requirement The casual ted.] (Citations stop omit- short of them.” sary a connection because “[w]ere ted.) Perr, Pittsburgh v. Nat. Bank required, employer essen- an (1994), p. Pa.Super. 637 A.2d every tially safety be an insurer of 337. into con- person happened who to come au- overwhelming weight I think the simply tact with his because liability employer thority is that of an employee.” as [Citations his status supervision of for the or omitted.] employee ends termination an Eno, ex- p. employee, whether Marquay A.2d at pressed liability as the limitation of policy,
matter of or as the lack of a recognize
owed. language
appellate opinion say seems proximate determination of cause and
foreseeability “nearly always” are issues jury. However,
for the I do not construe appellate opinion declaring as the law case this instance to mandate a
jury trial on the issue of extension of the forbidding owed an examination of
foreseeability as a matter of the definition *14 discovery. owed after full
Therefore, and for the reasons stated
above, I conclude that the defendant
tal owed no in this beyond
case that extended Garcia’s termi- employment.
nation of Defendant is enti- summary
tled to a judgment point. on this
STATE of HOOTS, Defendant-Appellant.
David W.
No. 23538. Idaho,
Supreme Court of
Boise, April 1998 Term.
June