Irvin Investors, Inc. v. Superior CourtIrvin Investors, Inc. v. Superior Court
OPINION
This is an action by an employee against her employer. The employee contends that the employer is liable for injuries she suffered as a result of sexual harаssment by a fellow employee. Her action for psychological injuries is based on the claim that her employer was negligent in hiring, supervising, and retaining the employеe who caused the injury. The employer filed a motion for summary judgment, claiming that the employee is restricted to the remedy provided by the workers’ compensation statutes. The trial judge denied the motion for summary judgment as to the negligence counts.
The employer brought this special action, and we accepted jurisdiction аnd stated that an opinion would follow. This is that opinion. We accepted jurisdiction because the point of law we deal with is an important one because we believe the error that occurred is clear and because our opinion will terminate the litigation.
See Ross v. Superior Court,
The case arose as follows. Michelle Kuehne was employed at a Jack-In-The-Box restaurant which was owned by Irvin Investors, Inc. In late 1987, Irvin Investors hired Charles Elder to work at the Jack-In-The-Box. It did so without verifying his former employment or attempting to find out anything about his background.
In January 1988, Elder sexually molested a female employee at the restaurant. A police investigation ensued, and Irvin Investors’ district manager was aware of the problem. On one occasion sometime during this period, Elder remarked to the district manager that Michelle Kuehne “is a nice looking girl, it is too bad she is not 18 years old.” The district manager had responded “[y]eah, they didn’t have teenagers like that when I was a teenager.” The district manager did not observe any other untoward conduct by Elder, and Elder was often permitted to work at the restaurant with no superior supervisory personnel on duty.
On February 20, and again on Februаry 21, 1988, Elder sexually molested Michelle Kuehne while both were working at the restaurant. After the second incident, Kuehne notified the district manager of what had happened, аnd she quit her job. As a result of Elder’s conduct, Kuehne suffered psychological problems which required treatment.
Kuehne sued both Elder and her employer. The trial court granted summary judgment in favor of the employer on Kuehne’s claims which were based on respondeat superior. It also granted summary judgment against Kuehne for the alleged intentiоnal acts of the employer. This left pending only the claim against her employer for negligent hiring, supervision, and retention which is the only claim we deal with in this special action.
The employer argues that Kuehne’s claims for negligence are barred by the workers’ compensation law, which provides the exclusive remedy for workers injured on the job. A.R.S. §§ 23-906(A) (Supp. 1989), 23-1022 (Supp.1989). Kuehne does not suggest that her employer did not comply with the workers’ compensation statutes, but instead says that the type of injuries she sustаined are not compensable under workers’ compensation law. She says that the language of A.R.S. section 23-1043.01(B) precludes her recovery of compensation benefits. That statute provides that injuries for a mental illness or condition are not compensable unless they
Kuehne points out that her employer, in addressing the issue of whether it could be vicariously liable for Elder’s conduct, successfully argued that Elder was acting outside the scope of his employment when he molested Kuehne. It follows, she says, that her injuries did not arise out of her employment. That is not correct. First, there is no doubt that Kuehne was injured while she was within the course and scope of
her
employment. Just because the person who injured her was not within the course and scope of his employment does not mean that shе is barred from recovering workers’ compensation.
See Special Fund v. Catalina Trucking Co.,
Kuehne next argues that the case of
Ford v. Revlon, Inc.,
Justice Feldman, with Justice Holohan concurring, took a different route to the same result. They rejected the idea that the injuries did not result from аn “accident” because, regardless of what the tort was called, Revlon had not acted knowingly or purposefully with the direct object of injuring the employee, thе statutory requisite for a forfeiture of an employer’s immunity from suit under the common law.
See
A.R.S. § 23-1022 (Supp.1989). The essence of what Revlon had done, they said, was to proceed with a reckless disregard that its failure to take action would certainly cause the emotional distress. This, they reasoned, fell short of knowingly acting with the “direct object of injuring” Ford.
Ford,
We are required to follow the rationale set out in the majority opinion in
Ford.
This rationale, which impliеdly rejected the minority’s reasoning, when applied to the facts of this case leads us to the conclusion that workers’ compensation is the only remedy for this injury, and thе trial judge
The facts of this case are in sharp contrast to those in
Ford.
Here, Kuehne’s claim based on the employer’s intentional conduct has been dismissed. For our purposes, we can take it as established that the facts оf the case, even when every inference is indulged in favor of the plaintiff, simply do not add up to intentional conduct, or even to a reckless disregard that emotional distress would ensue. Here, the employer was not even aware of Elder’s misconduct toward Kuehne until after Kuehne had quit her job. Elder’s misconduct was an “unexpected injury-causing event” within the coverage of the compensation statute.
Brock v. Industrial Comm’n,
The relief requested by the petitioner is granted. This case is remanded to the trial 'court with directions to enter summary judgment in favor of the petitioner.