*1
Chаppell
Atlanta,
fired a shot from a
Jackson
in southeast
Road
through the victim’s
handgun
The bullet cut
woman.
the unarmed
that Ter-
examiner testified
and the medical
stomach
liver, aorta and
gunshot
then walked
the abdomen. Jackson
wound to
a
rell died from
driving
pickup
up by
picked
truck. A
away
a blue
a woman
and was
gunshot
as he walked
and observed Jackson
who heard
witness
unprovoked
away
attack, identified Jackson as the shooter
from
apprehended
police.
his home.
Jackson at
The authorities
to the
acknowledged
police
his involvement
Jackson
In a statement
discharged by
gun
shooting,
that the
he contended
however
police
he had hidden the
showed the
where
Jackson later
accident.
weapon.
by expert testimony
handgun
as the murder
identified
guilty
person
of a crime committed
not be found
Whether a
satisfaсtorily appears
criminal
there was no
“where it
accident
negligence,”
undertaking,
intention,
OCGA
or criminal
scheme
(1) (536
jury.
§
State,
Stowe v.
Decided Greenberg, appellant. P. Carl Attorney, Jr., Hart, Howard, Bettieаnne C. Anne
Paul L. District Attorney Attorneys, Baker, Green, E. E. Assistant District Thurbert appellee. Attorney Fisher, General, General, Jason C. Assistant HOSPITAL, INC. v. PALLADINOet al. S02G1036. PIEDMONT Presiding Justice. Sears, theory alleging employer’s under the In this suit an respondeat superior, the trial court’s the Court of reversed finding grant employer hospital, to the job though had deviated from his even the suit jury responsibilities causing question harm, was a when there as to slight employer’s whether the deviation was so as to affect the potential liability.1 Having record, reviewed the we conclude nothing were actions reasons and did Accordingly, explained below, to further the the business. respondeat superior cannot be liable under a *2 matter we Therefore, as a of law. reverse. Appellee angioplasty surgery Albert Palladino underwent (“Piedmont”).
appellant Hospital, part Piedmont Inc. As of Pal- surgery, artery lаdino’s sheath was inserted femoral groin. employee responsible pro- Patterson, Piedmont, an of was for viding post-surgical treatment to Palladino and was authorized to hospital groin any alone, enter Palladino’s room check the area for bleeding complications, necessary, area, and, or clean if the move perform in Palladino’s testicles order to these tasks. alleged following surgery, Palladino that his he to awoke dis- (Palladino’s) rubbing penis
cover Patterson with both hands. Pal- alleged positioned ladino also that Patterson’s mouth was near his penis. filing against In Patterson, addition to suit Palladino and his against respondeat supe- filed suit wife Piedmont under a of battery assault, rior for granted summary judgment and loss of consortium. The trial court ground
in favor of on Piedmont the Georgia employer responsi- “it well law settled that an not employee.”2 ble for the sexual of an misconduct The Court of granted reversed and we certiorari.
“Every by shall person be liable for torts committed his . . . ser- by scope business, vant command . . . and within the of by negligence voluntarily.”3 are whether same committed “Two present respon- [under elements must be to render a master liable superior]: first, deat the servant must of be furtherance business; and, second, master’s he must be within the employee his master’s business.”4 If a an tort committed “not of the reason but because matters disconnected employer therewith,” the is not liable.5 If a tortious act is committed purely business, furtherance “but rather 235) (2002). (561 Hosp., Ga. Palladino v. Piedmont alleged hiring negligent negligent supervi sued Palladinos also and Patterson, ruling particular sion of its and trial did not court’s address those claims. (emphasis supplied). OCGA 51-2-2 § (2002 Adams, Torts, ed.); Lines, Georgia p. Law of 7-2§ Farmer v. Rider Truck 922) (1980); Barnes, Major Dodge 737 n. 2 Ga. Allen Kane’s 776, 777 Reynolds Mgmt., v. L & L Lucas v. Hosp. Dougherty County, App. (335 Auth. See McCranie v. Langdale Ford
personal business of the disconnected from authorized reasons [is] master . . liable.”6 master, the not. Georgia steps from his master’s “if a servant aside
Under injury entirely it, from and to an act disconnected business to do liable, act, from the servant but another results foregoing principles, with the is not liable.”7 acсordance master consistently Georgia held an have courts respondeat superior for mis- an sexual held liable under conduct employer’s were not taken in furtherance of the when the acts employment.8 were outside business and alleged, disputed if, fact no issue of Patter- There can be (or manipulated performed improperly Palladino’s son attempted (1) perform) Palladino, on those acts were com- to oral sex solely with reasons associated Patterson’s mitted own of Patterson’s (2) entirely gratification, and from were disconnected explained, Hospital. with As inspect place groin Patterson was authorized to Palladino’s inserted, area, to clean and to move Pal- where the sheath necessary perform If, however, if testicles these tasks. Pat- ladino’s terson penis job began rubbing from deviatеd these duties *3 longer performing acting him, sex on he was no and/or oral scope employment furthering of the within the his business of Hospital. point, acting At that was not a hos- Piedmont Patterson pital employee, but rather for own reasons.9 It applicable Georgia the law follows from discussed above that Pied- vicariously Hospital mont cannot held liable under the of superior respondeat and trial Patterson’s miscоnduct the properly Hospital’s court awarded favor. very precedent one, our clear In cases similar to this is that hos 6 Lucas, App. supplied). Reynolds, (emphasis at 193 Ga. Accord 774) (37 612-613; Co., (345 Frazier v. Southern R. 200 Ga. SE2d Odom v. Hu beny, Inc., 179 Ga. (523 (1999). Atlanta, v. Winn-Dixie 240 Ga. Brownlee Stewart, Alpharetta United First Methodist Church 532) (1996) (“It Georgia employer responsible well law not settled under that an Troutman, App. 671, employee”); sexual misconduct of an B.C.B. Co. v. (An 218) (1991) be liable cannot for an sexual misconduct employer’s scope do not because such acts further business and are outside of 328) (1988) employment); Mfg. Favors v. Alco scope (employee’s employment, sexual misconduct outside the of did not further provided respondeat superior liability); Big Brother/Big business and no basis 241) (1987) (sexual 496, 497 Terrell, Atlanta v. Sister Metro moles of hence, scope employer’s business; employment within the did not tation not and further respondeat superior). no regard, reasoning fatally posits sexually In this it dissent’s flawed when genitals, type manipulating ‘engaged doing Palladino’s Patterson was of work for ” (citation omitted). op. Dissenting hired.’ which he was pitáis cannot be held liable for the tortious acts committed their employees scope employment outside the and not in furtherance of hospital’s example, Hosp. business. For in Luсas v. Auth. of Dougherty County,10 Appeals upheld the Court an award of sum mary judgment hospital to a that had been sued for vicarious upon employee, based the actions of its a nurse. The nurse was injecting potassium accused of patients. lethal doses of chloride into The Court of held that the nurse’s actions did not further the hospital [the nurse] interests of the and stated that “while have advancing hospital’s giving injections been interest in authorized potassium clearly hospital’s chloride, she abandoned the interest pursued gave and her inject own when she lethal, unauthorized long Likewise, ions.”1 case, this so as Patterson touched Pal groin surgical ladino’s in order to care for incision, he was employment furthering within the Hospital’s began manipulating However, interests. if Patterson Pal genitals, hospital’s ladino’s then he abandoned the interests and began pursuing personal, morally agenda. his own offensive, Once beyond line, Patterson crossed that his actions extended employment totally Hospital’s and were unconnected to the busi Hospital ness. Under held cases, Lucas and other vicariously purely personal liable for these acts.12 Georgia precedent Moreover, Hospital holds that Piedmont can- vicariously merely employment be held liable because Patterson’s provided him allowed opportunity access into Palladino’s room and him with an against to commit tortious acts Palladino. In Mountain v. telephone company employee gained Southern Bell Tel. Co.,13 &c. entry into a customer’s home via his and then assaulted raped against telephone her. The customer filed suit com- pany, alleging respondeat superior because the tortfeasor gained entry plaintiff’s had into the home while duties employment. argued were within the of The customer that had it not been for the tortfeasor’s with the tele- phone company, gained entry he would not have into her home and opportunity never would have had the to assault her. The Court of *4 Appeals rejected argument upheld grant that and the trial court’s of company’s appellate in the favor. The court held simply during employ- because a tortious act occurs the time of dispositive employee ment is not on the issue of whether an was act- 10 (388 App. 193 Ga. 595 11 App. 193 Ga. at 596. Stewart, App. 752; Troutman, 672; See 221 Ga. App. Favors, at 200 Ga. at 186 Ga. 482-483; App. Terrell, App. at 183 Ga. at 497. (421 App. 205 Ga. scope employment
ing commit- when tort was within the of his Although telephone company employee have been ted.14 employment acting he the cus- of when entered within the began rape home, her, his actions took he to assault and tomer’s once purely personal employment realm of and became him outside the respon- employee threshold, crossed that Once the tortfeasor nature. liability longer employer. superior to his could no attach deat present case, the Court of reasoned Patter- In the accepted allеged was “not so far removed from son’s duties conduct preclude This to for his conclusion both employer.”15 supra. illogical Mountain, and at with cases such as Lucas and odds inspect him to and clean While Patterson’s did authorize permit way groin, it him to in no did sexu- the incision in Palladino’s only ally manipulate genitals. The nexus between these body. they region actions occurred same Such two expose physiological an a employer connection is an insufficient basis to conduct, to vicarious for its tortious obviously irrefutably especially when the misconduct is and outside of his employment.16 required Moreover, above, two elements before as discussed are respondeat employer superior held an actions can be liable under — only employee employee of an must but the actions also be in fur- within therance of thе must employer’s explained above, As there can business.17 argument alleged manipulation of be no serious that Patterson’s Pal- Hospital’s Hence, furthered ladino’s business. as a subject Hospital lia- matter to vicarious bility respondeat superior Patterson’s misconduct.18 14Mountain, Sharara, 120; App. Co. v. 205 Ga. Southern Bell Tel. &c. 665, 667 254 Ga. at 104. (insufficient See, Lucas, e.g., superior respondeat nexus liabil ity give prescribed injections whеre who to attach a nurse was authorized certain followed injections). procedures gave unprescribed, lethal normal but 4, supra, accompanying See note text. upon Anderson, Jump The dissent’s reliance cases such as 808) (1941); Norvell, SE Andrews v. and Miller v. 629) (1982) Honea, cases, misplaced. three of these first who, Jump, employee driving involved an truck a truck busi driver while on ness, case, Andrews, injured employee charged Thе second a saloon with someone. involved who, customers, duty seating seating injured plaintiff. the case, customers while The third Miller, grievances handling concerned a union official whose duties included the who, member, discussing grievance enraged while a with a union became and assaulted contrast, clearly present job responsibili case an him. involves with defined causing job duties, rather who is accused of harm not while but of aban ties pursue doning altogether those in order to both duties and business agenda that resulted in harm. *5 summary properly granted judgment It Piedmont’s that the trial court follows Appeals by reversing favor, Court of erred judgment.
Judgment except concur, Hunstein, reversed. All the Justices Car- ley Thompson, JJ, who dissent. dissenting. Justice, Caeley, Hospital vicariously
If, as a matter of assault, liable for Patterson’s then no can ever be liable for any emplоyee, closely sexual misconduct of an no matter how con- Thus, nected such conduct be with the duties. majority effectively establishes an absolute rule that the doctrine of respondeat superior Today’s ruling apply involving does not to cases sexual assault. precedent applies
contradicts well-settled which during momentary, slight doctrine to willful torts committed devia- anger tions from the reasons such as or Co., malice. Frazier v. Southern R. (1946). opinion Judge Phipps below, In an dissent, excellent without explained ruling of the Court of as follows:
Here, the actions attributed to Patterson were far not so accepted preclude liability removed from his duties to for his employer. job [Cit.] Patterson was when he initially genitals. any touched Palladino’s Whether contin- inappropriate touching “entirely ued, disconnected” question jury. [Cits.] from Piedmont’s business is а jury ... A if must determine Patterson deviated from his accepted slightly duties so it would not affect Pied- [Cit.] mont’s for his actions. (1) Hosp.,
Palladino v. Piedmont analysis eminently correct, I SE2d sent to the reversal of the Because this dis- judgment Appeals. of the Court of Contrary majority’s quotation § to the erroneous 51-2- OCGA [i] t is not essential to the of a master for the wilful and intentional tort of a servant that the servant shall have acted [Cit.]” command of the mastеr or with the master’s consent. Brown v. Union Bus The com- principle respondeat superior § mon law “is codified in 51-2- OCGA ‘Every person by 2: shall be liable for torts committed his . . . ser- prosecution vant his command or and within the by negligence business, his untarily.’ whether the same are committed or vol- (Emphasis supplied.) Chorey, Taylor [Cit.]” Clark, & Feil v. expressions, business,” “in the “in the or employment,” words, or similar have sometimes given meaning. rarely been too narrow а A master com- negligent, employs mands a servant to be him with the expectation negligent that he will tort; commit a or wilful prosecution if but the act is done in the of the master’s busi- engaged serving ness, is, if the servant is at the time [Cit.] master, the latter will be liable. But for a tort com- entirely mitted the servant disconnected from the service responsible master, or business of the the latter is not *6 respondeat superior, although may the doctrine of it occur during general employment. term of the servant’s (3) (77 618) (1913). Davison, 509, Fielder v. 139 Ga. 511-512 SE See App. (1980); Bozardt, also IBM v. 794, 156 Ga. 808) (1941). App. Norvell, Andrews v. 241, 65 Ga. “ though employee may Even ‘the have violated his instructions or respects in exceeded some the boundaries acts, his authorized master is still bound where the disobedience is not such as to take employment.’ [Cit.]”(Emphasis him supplied.) out of the (1) (231 780) (1976). Hagin Powers, v. 300, Evidence before the trial court demonstrated that Patterson employer’s place generally “was at his of business and that he was engaged doing type of work for which he was hired.” Miller v. Honea, Furthermore, alleged closely Patterson’s initiation of the manner and method in which he attack was related to the
performed, perform, or failed to his supra. fulfilling Honea, duties. See Miller v. duties, his Patterson genitals adjust was authorized to touch Palladino’s in order to their рosition necessary. Appellees presented as evidence which would jury uninterrupted authorize a to find an escalation of contact patient employee performing between the “and an one of the duties employed. [was] Reynolds [Cits.]” Mgmt., for which he . . . v. L & L theory may ‘The that one minute, be a servant one and the very step capac- next minute aside and act in his individual ity, step capacity and then the nеxt minute back into his as a servant is too refined a distinction. Since to exonerate the master from it is essential that the deviation should purposes entirely personal be for servant, to the where the notwithstanding engaged servant, deviation, master’s business within the of his it join private purposes immaterial that he with this some [Cit.]” [Cit.] his own.’ Langdale Co., Ford
McCranie v. supra Co., R. See also Frazier v. Southern supra specifically, Norvell, at 245. More that a Andrews v. , touching person’s genitals fulfilling servant employment be another his very minute, duties one and the next minute seek to satisfy by touching genitals his sexual desires arouse surely servant, in an unauthorized manner and that act not be a supra; Co., a distinction. See v. too refined Frazier Southern R. Langdale supra; supra. Norvell, v. McCranie Ford Andrews v. applicable compels Review of the record and case law the conclu- jury might properly alleged sion that a find that Patterson’s assault closely checking cleaning connected with was so groin might fairly regarded prosecution it within area that employment. Jump Anderson, and (197 644) (1938) (where employee, driving while on SE a truck playfully business, turned truck towards enough, plaintiff, portion turn and then did not back soon so that a plaintiff). alleged touching inappropriate the truck struck the entirely not, disconnected, as a matter of or a total touching departure, permissible part from that which was a of Pat- area, check and terson’s duties to plishing clean the which he was accom- Norvell, at the time of the tortious act. Andrews v. (where supra duty saloon, of.a while *7 regard seating, played to assist and direct customers in to a practical joke by having placed a customer sit where he a had sub- flesh). person’s anаlysis Jump a In stance which would burn its majority entirely 18, in and Andrews footnote omits the fact that employees engaged pranks per- the sonal employers those cases for their own
purposes they just serving at a time when had been their appeared serving.
and even to continue so Appeals correctly distinguished previ- The opinions. Court several of its (1). Hosp., supra v. ous Palladino at 105 In two employee cleаrly cases, an accused of sexual misconduct was person’s organs. authorized to make contact with another sex Alpharetta Stewart, First United Church v. Methodist Ga. (2) (472 532) Village Joseph, 748, Doe v. St. (1) (415 App. 614, Ga. a Another decision involved
physician’s opinion any assault, sexual but the does not contain indication whatsoever that the doctor was authorized to make con- tact with the Coley plaintiff’s organs part sex of thе treatment. Hosp., Evans Memorial any per These three cases do not furnish master is never liable for the sexual misconduct of his basis for a rule that a se just
servant, torts, as there is no reason to exclude vicarious for willful anger supra Co., committed out of or malice. Frazier v. Southern R. (2). away any per Indeed, there is a national trend from such se (1992). Note, 1513, rule. 76 Minn. L. Rev. majority indicates, As the itself Mountain v. Southern Bell Tel. (1) (421 284) (1992), only Co., &c. stands proposition only for the fact that an that vicarious cannot be based on the present was authorized to be in a room with plaintiff. distinguished by Appeals another case the Court of heavily majority Court, relied on in this where an employee gave injection potassium chloride, an unauthorized there give injections was no indication that she was authorized to such to plaintiff anyone Hosp. Dougherty or to else. Lucas v. Auth. of County, “Here, Patterson required was authorized to and even perform job. to touch Palladino’s allegedly his While task, the authorized he sexually [Cit.]” went further and assaulted Palladino. Palladino v. (1). Hosp., supra at 105 Accordingly, jury question there “was at least a as to whether or and, not there so, deviation if whether the deviation was so slight responsibility as to not affect the master’s for the servant’s act. (1). Reynolds [Cit.]” Mgmt., supra Lv. & L See also Bacon v. Co., News-Press & Gazettе (1988). question injury of whether ‘the servant at the time of an prosecution to another was in the of his master’s business and jury, is for determination except plain indisputable [Cit.]” cases.’ Bacon v.News-Press & supra my opinion, Appeals Gazette at 704. In the Court of cor- rectly grant reversed the trial court’s in favor judgment Therefore, of Piedmont. affirm we either should of the improvidently Court of or dismiss the writ of certiorari as granted.
I am authorized to state that Justice Hunstein and Justice Thompson join in this dissent. April Decided 2003.
Reconsideration denied June Hall, Booth, appellant. Slover, Smith & Moses, Deborah S. Barry Associates, Zimmerman & Zimmerman, L. Keith F. Bran- *8 Downey appellees. don, Cleveland, & William Anderson, C.