Lead Opinion
Opinion
Plaintiff Lisa M. was injured in a fall and sought treatment at defendant Henry Mayo Newhall Memorial Hospital (Hospital). Under the pretense of conducting an ultrasound imaging examination, a technician sexually molested her. In plaintiff’s action against Hospital and others, the trial court granted summary judgment in favor of Hospital; the Court of Appeal reversed. The question presented is whether Hospital, even if not negligent in employing or supervising the technician, may be held vicariously liable for his misconduct under the doctrine of respondeat superior. We conclude the undisputed facts show Hospital is not vicariously liable.
Facts and Procedural Background
The facts are taken largely from the declarations and depositions submitted in support of and opposition to Hospital’s motion for summary judgment. Some undisputed facts are taken from the parties’ separate statements of undisputed facts. (Code Civ. Proc., § 437c, subd. (b).)
On July 9, 1989, plaintiff, 19 years old and pregnant, was injured in a fall at a movie theater and sought treatment at Hospital’s emergency room. At
Tripoli took plaintiff to the ultrasound room on a gurney. She remained in her street clothes, shorts and a maternity top. No one else was present during the examination; plaintiff had asked that her boyfriend accompany her, but Tripoli refused the request, as was his practice in conducting emergency obstetrical examinations. Tripoli turned out the room lights but left the adjacent bathroom door ajar to admit dim light.
Tripoli first conducted the prescribed examinations. Plaintiff pulled up her shirt and pushed her shorts down to expose the area to be examined. The obstetrical or “general pelvic” examination requires passing an ultrasound-generating wand across the patient’s lower abdomen. The sound waves must be mediated by a gel, which Tripoli testified must be worked into the skin somewhat to displace all the air. The exact placement and movement of the wand varies with the patient’s body type, and on some patients the best images are obtained by passing the wand as much as an inch below the pubic hairline. Tripoli found it necessary to do so in plaintiff’s case. In performing the upper right quadrant examination (to see the liver), Tripoli had to lift plaintiff’s right breast, which he did through a towel with the back of his hand.
After conducting the ordered examinations, Tripoli left the room for about 10 minutes to develop the photographic results. On his return, Tripoli asked plaintiff if she wanted to know the sex of the baby, and she said she did. He told her, falsely, that to determine the sex he would need to scan “much further down,” and it would be uncomfortable. With plaintiff’s cooperation, Tripoli pulled plaintiff’s shorts down and began to scan in her pubic hair. According to plaintiff, he also inserted the wand in her vagina. After a while he put down the wand and fondled plaintiff with his fingers. Plaintiff testified he moved his fingers “around everywhere down there.” While fondling plaintiff, Tripoli said he needed to excite her to get a good view of the baby. Plaintiff found the touching uncomfortable, but Tripoli testified he thought she was getting pleasure from it because she said it tickled. Tripoli eventually stopped molesting plaintiff and returned her to the emergency room.
At the time of the misconduct, plaintiff thought it was part of a “regular procedure,” albeit “kind of weird.” Later that day, however, she began to
Plaintiff’s suit named Tripoli, Hospital and others as defendants, and contained causes of action for professional negligence, battery and intentional and negligent infliction of emotional harm. In opposition to Hospital’s motion for summary judgment, plaintiff maintained triable issues of fact existed as to whether Hospital was vicariously liable for the battery as a tort committed within the scope of Tripoli’s employment, or was directly liable for its own negligence in failing to have a third person present during the examination. The superior court granted the summary judgment motion, rejecting both arguments.
The Court of Appeal reversed. The court relied only on the theory of respondeat superior and expressly declined to reach the question of Hospital’s negligence. We granted Hospital’s petition for review in order to decide the vicarious liability question.
Discussion
I. Review of Pertinent Law on Respondeat Superior
The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. (Perez v. Van Groningen & Sons, Inc. (1986)
It is clear, first of all, that California no longer follows the traditional rule that an employee’s actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer’s interests. (See Rest.2d Agency, § 228, subd. 1(c) [conduct must be “actuated, at least in part, by a purpose to serve the master”].) Our departure from that limiting rule dates at least from the leading case of Carr v. Wm. C. Crowell Co., supra,
In Carr, this court held a building contractor liable for injuries caused when an employee, angry at a subcontractor’s employee for interfering in his work, threw a hammer at the other worker’s head. We rejected the defendant’s claim its employee was not acting within the scope of employment because he “could not have intended by his conduct to further” the employer’s interests: “It is sufficient, however, if the injury resulted from a dispute arising out of the employment. ... ‘It is not necessary that the assault should have been made “as a means, or for the purpose of performing the work he (the employee) was employed to do.”'” (
While the employee thus need not have intended to further the employer’s interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work. This
In Rodgers v. Kemper Constr. Co., supra,
Because an intentional tort gives rise to respondeat superior liability only if it was engendered by the employment, our disavowal of motive as a singular test of respondeat superior liability does not mean the employee’s motive is irrelevant. An act serving only the employee’s personal interest is less likely to arise from or be engendered by the employment than an act that, even if misguided, was intended to serve the employer in some way.
The nexus required for respondeat superior liability—that the tort be engendered by or arise from the work—is to be distinguished from “but for” causation.
In what has proved an influential formulation, the court in Rodgers v. Kemper Constr. Co., supra,
“Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ ” (Mary M. v. City of Los Angeles, supra,
II. Application to This Case
Was Tripoli’s sexual battery of Lisa M. within the scope of his employment? The injurious events were causally related to Tripoli’s employment as an ultrasound technician in the sense they would not have occurred had he not been so employed. Tripoli’s employment as an ultrasound technician provided the opportunity for him to meet plaintiff and to be alone with her in circumstances making the assault possible. The employment was
At the broadest level, Hospital argues sex crimes are never foreseeable outgrowths of employment because they, unlike instances of nonsexual violence, are not the product of “normal human traits.” Hospital urges us not to “legitimize” sexual misconduct by treating it on a par with mere fights. These generalized distinctions are not, however, compelling. Neither physical violence nor sexual exploitation is legitimate, excusable or routinely expected in the workplace. In Carr v. Wm. C. Crowell Co., supra,
Focusing more specifically on the type of sexual assault occurring here, we ask first whether the technician’s acts were “engendered by” or an “outgrowth” of his employment. (Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d at pp. 656-657.) They were not.
Nonsexual assaults that were not committed to further the employer’s interests have been considered outgrowths of employment if they originated in a work-related dispute. (E.g., Fields v. Sanders, supra, 29 Cal.2d at pp. 839-840 [employee truck driver’s assault on another motorist following
As with these nonsexual assaults, a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. Here the opposite was true: a technician simply took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work. Tripoli’s job was to perform a diagnostic examination and record the results. The task provided no occasion for a work-related dispute or any other work-related emotional involvement with the patient. The technician’s decision to engage in conscious exploitation of the patient did not arise out o/the performance of the examination, although the circumstances of the examination made it possible. “If... the assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability.” (Lyon v. Carey (D.C. Cir. 1976)
Our conclusion does not rest on mechanical application of a motivation-to-serve test for intentional torts, which would bar vicarious liability for virtually all sexual misconduct. (See ante, p. 297.)
Analysis in terms of foreseeability leads to the same conclusion. An intentional tort is foreseeable, for purposes of respondeat superior, only if “in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Rodgers v. Kemper Constr. Co., supra,
In arguing Tripoli’s misconduct was generally foreseeable, plaintiff emphasizes the physically intimate nature of the work Tripoli was employed to perform. In our view, that a job involves physical contact is, by itself, an insufficient basis on which to impose vicarious liability for a sexual assault. (Accord, Boykin v. District of Columbia (App.D.C. 1984)
Here, there is no evidence of emotional involvement, either mutual or unilateral, arising from the medical relationship. Although the procedure
Although the routine examination Tripoli was authorized to conduct involved physical contact with Lisa M., Tripoli’s assault on plaintiff did not originate with, and was not a generally foreseeable consequence of, that contact. Nothing happened during the course of the prescribed examinations to provoke or encourage Tripoli’s improper touching of plaintiff. (See Alma W. v. Oakland Unified School Dist., supra,
Plaintiff contends the battery in this case, like the police officer’s rape of a detainee in Mary M. v. City of Los Angeles, supra,
While a police officer’s assault may be foreseeable from the scope of his unique authority over detainees, we are unable to say the same of an ultrasound technician’s assault on a patient. Hospital did not give Tripoli any power to exercise general control over plaintiff’s liberty. He was not vested with any coercive authority, and the trust plaintiff was asked to place in him was limited to conduct of an ultrasound examination. His subsequent battery of the patient was independent of the narrow purpose for which plaintiff was asked to trust him. Whatever costs may be fairly attributable to a police officer’s public employer in light of the extraordinary scope of authority the community, for its own benefit, confers on the officer, we believe it would not be fair to attribute to Hospital, which employed Tripoli simply to conduct ultrasound examinations, the costs of a deliberate, independently motivated sexual battery unconnected to the prescribed examination.
In reaching our conclusion we have consulted the three identified policy goals of the respondeat superior doctrine—preventing future injuries, assuring compensation to victims, and spreading the losses caused by an enterprise equitably—for additional guidance as to whether the doctrine should be applied in these circumstances. (See Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 209, 214-217; John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at pp. 451-452.) In this case, however, we have drawn no firm direction from consideration of the first two policy goals. Although imposition of vicarious liability would likely lead to adoption of some further precautionary measures, we are unable to say whether the overall impact would be beneficial to or destructive of the quality of medical care. Hospital and its amici curiae predict imposition of respondeat superior liability would lead health care providers to overreact by monitoring, for possible sexual misconduct, every interaction between patient and health care worker. Published research, on the other hand, indicates providers have
As for ensuring compensation, the briefing does not enable us to say with confidence whether or not insurance is actually available to medical providers for sexual torts of employees and, if so, whether coverage for such liability would drastically increase the insurance costs—or, if not, the uninsured liability costs—of nonprofit providers such as Hospital.
Third and finally, we attempt to assess the propriety of spreading the risk of losses among the beneficiaries of the enterprise upon which liability would be imposed. As Hospital points out, this assessment is another way of asking whether the employee’s conduct was “so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Rodgers v. Kemper Constr. Co., supra,
Conclusion
Hospital employed a technician to conduct ultrasound examinations. The technician, after completing such an examination of plaintiff, took advantage of plaintiff’s trust and his own superior knowledge to commit on her a deliberate sexual battery. His reasons for doing so did not derive from any events or conditions of his employment, nor were his actions provoked by anything that occurred during the prescribed examination. Hospital, by employing the technician and providing the ultrasound room, may have set the stage for his misconduct, but the script was entirely of his own, independent invention. For this reason it would be unfair and inconsistent with the basic rationale of respondeat superior to impose liability on Hospital irrespective of its own negligence.
The judgment of the Court of Appeal is reversed and the matter is remanded to that court for further proceedings consistent with this opinion.
Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.
Notes
Tripoli’s deposition testimony was inconsistent as to whether the door to the ultrasound room was open or closed; although he testified he usually left the door slightly open, and did so on this occasion, he also testified the room door’s magnetic latch was not working properly, and the door closed instead of remaining ajar.
Civil Code section 2338, which has been termed a codification of the respondeat superior doctrine (Rodgers v. Kemper Constr. Co. (1975)
Tripoli was not formally employed by Hospital, but by Mediq Imaging Services, Inc., with which Hospital contracted for his services. Hospital, however, concedes it did not seek summary judgment on the ground Tripoli was not its employee, did not argue that issue in the Court of Appeal, and does not rely on it in this court. For purposes of reviewing the ruling on summary judgment, therefore, we will treat Tripoli as Hospital’s employee, without considering or deciding whether Tripoli was Hospital’s nonemployee agent or ostensible agent (see Quintal v. Laurel Grove Hospital (1964)
See also Ira S. Bushey & Sons, Inc. v. United States (2d Cir. 1968)
The distinction is reflected in the common meaning of “engender”: “to bring into being.” (Webster’s New World Diet. (3d college ed. 1991) p. 450.)
Because we do not apply a motivation-to-serve test as the sole standard of vicarious liability, our rationale differs from that of most other courts that have considered factually similar cases, although several courts have reached the same result as we do: sexual assault by a medical technician is not within the scope of employment. (Compare Hendley v. Springhill Memorial Hosp. (Ala. 1990)
We part company at this point with the dissenting justices, who would hold summary judgment improper because either the patient’s vulnerability or the intimate physical contact inherent in the examination might have encouraged or incited Tripoli to assault her. On the present record, such inferences would be wholly speculative. Lacking evidence the assault was a product of the therapeutic relationship, to impose vicarious liability on a hospital for a technician’s deliberate sexual assault on a patient would stretch the rationale of respondeat superior too far. To do so would make the hospital potentially liable, irrespective of its actual fault, whenever an employee used force, coercion or trickery to exploit criminally a patient’s physical or psychological vulnerability, vulnerability that is characteristic of hospitalized patients generally. An analysis that, in the field of health care, deems a conscious sexual assault to have arisen from the employment simply because the patient involved was vulner
The American Medical Association has described and distinguished two broad types of sexual misconduct by physicians: first, misconduct arising from the physician’s inability properly to contain and control his or her emotional involvement with the patient; and second, conscious exploitation of the physician’s status, knowledge and power to coerce or trick the patient into allowing sexual contact. (American Medical Association, Council on Ethical and Judicial Affairs, Council Rep., Sexual Misconduct in the Practice of Medicine (1991) 266 JAMA 2741-2742.) Tripoli, of course, was a technician rather than a physician. In any event, his conduct belongs in the second category—conscious exploitation—and we need not decide here whether sexual misconduct of the first type might, under some circumstances, create respondeat superior liability on the employer’s part.
See Jorgenson, Employer I Supervisor Liability and Risk Management, in Breach of Trust: Sexual Exploitation by Health Care Professionals and Clergy (Gonsiorek edit. 1995) pages 296-297; Schoener, Liability and Risk: An Administrator’s View, in id. at pages 305-315; American Medical Association, Council on Ethical and Judicial Affairs, supra, 266 JAMA at pages 2744-2745; Plaut et al., Roles of the Health Professional in Cases Involving Sexual Exploitation of Patients, in Sexual Exploitation of Patients by Health Professionals (Burgess et al. edit, 1986) pages 20-23.
Whether a health care professional’s sexual misconduct is covered under the professional’s malpractice policy is “a much litigated issue,” depending in part on the exact factual relationship between the misconduct and the professional services for which the professional was engaged. (Louisell & Williams, 4 Medical Malpractice (1994) § 20.03[1], p. 20-36.) But even where the misconduct is not sufficiently related to the provision of professional services to be covered under malpractice insurance, the hospital or other institutional provider may be covered for its vicarious liability under a commercial general liability policy. (Id., § 20.01, p. 20-11.) Neither Insurance Code section 533 nor related policy exclusions for intentionally caused injury or damage preclude a California insurer from indemnifying an employer held vicariously liable for an employee’s willful acts. (Arenson v. Nat. Automobile & Cas. Ins. Co. (1955)
Dissenting Opinion
I dissent. Justice Kennard demonstrates that the Court of Appeal’s decision is without error and hence that its judgment should be affirmed. I join in her opinion.
I write separately to emphasize the unsoundness of the majority’s reasoning and the incorrectness of their result.
The majority recognize, as they must, that “[n]onsexual assaults” come within the doctrine of respondeat superior “if they originate[] in a work-related dispute,” as when an “employee truck driver[] assault[s]. . . another motorist following [a] dispute over [the] employee’s driving.” (Maj. opn., ante, at p. 300.) Such an attack, of course, falls beyond the doctrine’s bounds if “ ‘the misconduct . . . arises out of a personal dispute,’ ” as when an “ ‘on-duty bartender assault[s] [a bystander] in the course of a personal dispute [between the bartender and] his common law wife . . . .’” (Maj. opn., ante, at p. 301, quoting Farmers Ins. Group v. County of Santa Clara (1995).
It follows that sexual assaults are within the doctrine of respondeat superior if they originate in work-related concupiscence, as when “a physician or therapist. . . becomes sexually involved with a patient as a result of mishandling the feelings predictably created by the therapeutic relationship . . . .” (Maj. opn., ante, at p. 303.) Similarly, an attack of this sort is outside the doctrine’s limits if the impropriety springs from a particularized lust, as when a meat cutter makes a sexual advance on a customer as he fills an order. (Great Atlantic & Pacific Tea Co. v. Lantrip (1934)
In my view, it is at least a question for the trier of fact whether the sexual assault in this cause comes within the doctrine of respondeat superior. The facts are undisputed that, in the course of his employment at Henry Mayo Newhall Memorial Hospital, Bruce Wayne Tripoli, an ultrasound technician, was required to have intimate physical contact with female patients, like Lisa M., which involved the touching of their breasts and the rubbing of their pubic areas—all without a chaperon. The facts are also undisputed that Tripoli had no acquaintance whatever with Lisa apart from the event with
In conclusion, having found no error in the Court of Appeal’s decision, I would affirm its judgment.
The unfortunate but inevitable result of the majority’s analysis is to exempt the health care employer, at least in part, from the doctrine of respondeat superior. I merely note that what they call the “three identified policy goals of the respondeat superior doctrine—preventing future injuries, assuring compensation to victims, and spreading the losses caused by an enterprise equitably’’ (maj. opn., ante, at p. 304)—do not justify exemption. Even if application of the doctrine furthers none of these objects, it nevertheless compels the health care employer to avoid or cover the costs his business imposes on the community. “Fairness is served thereby,” and the “efficient use of limited resources is furthered.” (Smiley v. Citibank (1995)
Dissenting Opinion
I dissent.
The majority holds that, as a matter of law, a hospital employee was not acting within the scope of his employment when he sexually molested a pregnant woman while purportedly conducting an ultrasound examination necessitating that he have physical contact with intimate areas of the woman’s body. I disagree. Scope of employment in this case, as in most cases, is a question of fact to be resolved by the trier of fact.
The scope-of-employment question presented here is very similar to one this court addressed just a few weeks ago in Farmers Ins. Group v. County of Santa Clara (1995)
Plaintiff Lisa M., injured in a fall, went to defendant Henry Mayo Newhall Memorial Hospital for treatment. Because plaintiff was pregnant, the emergency room physician ordered an obstetrical ultrasound examination to determine whether the fetus had been injured. The ultrasound technician, Bruce Tripoli, rejected plaintiff’s request that her mother and boyfriend be present during the procedure. Plaintiff was wearing shorts and a maternity top (the hospital did not provide a gown), and she raised her top and pulled down her shorts so that Tripoli could perform the examination. Tripoli rubbed a gel on plaintiff’s abdomen, going as low as one inch below the pubic hairline; he then pressed the ultrasound wand against her abdomen. He also raised plaintiff’s right breast to place the wand in the area below it; he did this with the back of his hand, through a towel.
After the examination, Tripoli left the room. Moments later, he returned and asked plaintiff if she would like to know the sex of her baby. Plaintiff said she would; with plaintiff’s cooperation, Tripoli pulled down plaintiff’s shorts to perform the examination. Tripoli coated the ultrasound wand with gel, and rubbed it around and inside plaintiff’s vagina. Tripoli then fondled her with his fingers, telling her that he needed to sexually excite her to stop the baby from moving. An ultrasound procedure to determine the sex of a fetus does not, however, require touching of the vagina, vaginal insertion of the ultrasound wand, or sexual excitation of the patient. Plaintiff did not object to Tripoli’s improper touching because she was unsure whether or not his acts were a necessary part of the examination. The next day, after discussing the matter with her sister and her obstetrician, plaintiff concluded that she had been molested. Tripoli was arrested, and was later convicted of a felony arising from his sexual assault on plaintiff.
Plaintiff sued Tripoli and his employer, defendant hospital;
II
Under the doctrine of respondeat superior, an employer may be held vicariously liable for acts committed by an employee in the scope of employment. (Mary M. v. City of Los Angeles (1991)
Elaborating upon these principles of respondeat superior, the majority notes that an employee’s tortious conduct is within the scope of employment when there is a “causal nexus” between an employee’s tortious conduct and the employee’s job. (Maj. opn., ante, at p. 297.) As the majority explains: “The question is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed. The
III
The issue in this case is whether the trial court erred when it granted a defendant’s motion for summary judgment, concluding as a matter of law that ultrasound technician Tripoli’s sexual misconduct occurred outside the scope of his employment, and that therefore defendant hospital could not be held vicariously liable for Tripoli’s actions. A motion for summary judgment may be granted only when “there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
As the majority concedes (maj. opn., ante, at p. 299), whether an employee’s tortious acts are within the scope of employment is in general a question of fact. (John R. v. Oakland Unified School Dist. (1989)
True, there is no dispute as to the predicate facts underlying the question whether ultrasound technician Tripoli acted in the scope of his employment; that is, the parties agree on where, when, and how Tripoli molested plaintiff, and they agree that defendant was Tripoli’s employer. (See fn. 2, ante.) But the absence of a dispute regarding the predicate facts does not necessarily mean that the ultimate question—that is, whether Tripoli’s conduct fell within the scope of employment—is one of law, to be decided on summary judgment. As I shall explain, whether Tripoli’s acts arose within the scope of his employment is itself a disputed factual question, notwithstanding the parties’ agreement on the predicate facts.
This court has long held that whether an employee’s tortious conduct falls outside of the scope of employment is generally a question of fact, even when the facts underlying that determination are not in dispute. In Westberg
More recent cases, expressing the same principle in shorthand form, have said that scope of employment is a question of fact unless “ ‘the facts are undisputed and no conflicting inferences are possible.’ ” (Mary M. v. City of Los Angeles, supra,
In this case, as shown below, the parties dispute the inferences that may reasonably be drawn from ultrasound technician Tripoli’s conduct when he sexually molested plaintiff; that is, they dispute whether that conduct was so
The majority asserts that ultrasound technician Tripoli’s conduct fell outside the scope of employment because Tripoli molested plaintiff, a patient, for personal reasons unrelated to Tripoli’s employment at defendant hospital. In the words of the majority: “[T]here is no evidence [here] of emotional involvement, either mutual or unilateral, arising from the medical relationship” (maj. opn., ante, at p. 302), and “[n]othing happened during the course of the prescribed examinations to provoke or encourage Tripoli’s improper touching of plaintiff’ (id. at p. 303). Thus, the majority concludes, Tripoli’s sexual assault on plaintiff “is fairly attributed not to any peculiar aspect of the health care enterprise, but only to ‘propinquity and lust’ [citation].” (Id. at p. 302.)
Perhaps. But a trier of fact might also reasonably conclude that Tripoli’s employment as an ultrasound technician did have certain “peculiar aspects” that played a not insignificant role in the sexual assault. To perform an ultrasound examination on a pregnant woman, a technician rubs a gel on the woman’s exposed lower abdomen. This intimate contact, inherent in the job, put plaintiff in a vulnerable position and permitted Tripoli to dupe plaintiff into believing that his sexual assault was actually part of a standard medical procedure, thereby giving Tripoli a basis to hope that his misconduct would remain undetected. Moreover, it is not unreasonable to infer that the intimate contact inherent in the job contributed to Tripoli’s sexual arousal and incited him to engage in the misconduct. In short, a reasonable trier of fact could conclude that this sexual assault would never have occurred had Tripoli been employed by defendant in a capacity other than ultrasound technician, and that therefore the misconduct may fairly be attributed to risks arising from, and inherent in, the “peculiar aspects” of Tripoli’s employment. (See Stropes v. Heritage House Childrens Ctr. (Ind. 1989)
When an employee’s personal motivations are so enmeshed with the employee’s performance of occupational duties that reasonable minds can differ as to whether the employee’s tortious act is incidental to those duties,
Conclusion
I do not suggest, by the foregoing comments, that the question whether an employee’s tortious conduct is within the scope of employment may never be resolved on summary judgment. Although scope of employment is ordinarily a question of fact, it becomes a question of law “where the undisputed facts would not support an inference that the employee was acting within the scope of his employment.” (John R. v. Oakland Unified School Dist., supra,
I would affirm the judgment of the Court of Appeal, which held that the trial court erred when it granted plaintiff’s motion for summary judgment.
In this case, ultrasound technician Tripoli was not directly employed by defendant; he worked for Mediq Imaging Services, Inc. (a codefendant in this case), with which defendant contracted for Tripoli’s services. Defendant, however, does not rely on the absence of a direct employment relationship between it and Tripoli as a basis to avoid vicarious liability in this case, and both parties have litigated the issue on the assumption that defendant is, for all intents and purposes, Tripoli’s employer. Accordingly, like the majority (see maj. opn., ante, at p. 296, fn. 2), I have treated defendant as Tripoli’s employer.
Because the Court of Appeal held that the trial court erred in finding that, as a matter of law, plaintiff was not entitled to recover on her cause of action for vicarious liability, it did not address plaintiff’s claim that the trial court also erred in finding, as a matter of law, that plaintiff was not entitled to recover on her cause of action for negligence. As a result of the majority’s conclusion today that plaintiff may not recover on her claim of vicarious liability, the Court of Appeal must now, on remand, consider the merits of plaintiff’s cause of action for negligence. Because I agree with the Court of Appeal that whether ultrasound technician Tripoli had acted within the scope of his employment presents a triable issue of fact, I do not address the merits of plaintiff’s cause of action for negligence.
Concurrence Opinion
I concur in the result and reasoning of the majority, and I have signed the majority opinion. I write separately because, for the reasons expressed in my concurring opinion in Farmers Ins. Group v. County of Santa Clara (1995)
Lucas, C. J., concurred.