The appellee in this tort case, Donna Smith, sued the appellant, Sparks Regional Medical Center, alleging that, while she was a patient at Sparks on July 2, 1994, she was sexually assaulted by an employee assigned to bathe her. Appellee asserted that appellant had been negligent in hiring the employee, Jeff Chavez, because he рreviously had been discharged by another hospital for sexually harassing a patient. Appellee further asserted that appellant had been negligent in failing to proрerly supervise Mr. Chavez because appellant knew that Mr. Chavez had sexually harassed other patients while employed by appellant. The jury found in favor of appellee and awarded her damages in the amount of $80,000. From that decision, comes this appeal.
For reversal, appellant contends that the trial court erred in denying its motions for directed verdict at the close of the trial and for judgment notwithstanding the verdict after the verdict was returned. Appellant argues that it was not responsible for the intеntional criminal conduct of Mr. Chavez because Mr. Chavez was acting outside the scope of his employment when he sexually assaulted appellee. We affirm.
A motiоn for a directed verdict is a challenge to the sufficiency of the evidence. Medlock v. Burden,
Viewing the evidence, as we must, in the light most favorable to the appellee, the record rеflects that, before he was hired by appellant, Mr. Chavez was discharged by St. Edward Mercy Medical Center for sexually abusing patients. Criminal charges were filed against him based on one of those incidents. After being terminated by St. Edward, Mr. Chavez applied in July 1993 for a position at the appellant hospital. He did not list St. Edward as a prior employer on his apрlication, and, although a five-year gap in Mr. Chavez’s employment history appeared on his application for employment with appellant, appellant neither investigated the matter nor performed a background check. Mr. Chavez was hired by appellant and, after beginning his employment, was seen by other employees of аppellant who had worked with him at St. Edward and were aware of the incident resulting in his dismissal. In January 1994, a fellow employee reported that two female patients in the psychiаtric ward informed him that Mr. Chavez had engaged in sexual contact and conversation with them in their rooms. Appellant placed Mr. Chavez on probation in a disciplinary-action report that stated:
Jeff, as you are aware, this is an extremely serious situation. This behavior would certainly result in immediate termination if verified by those patients involved. At this time, I аm placing you on probation as there is still some variation in the report by the patients involved. Jeff, you must understand that any occurrence of this nature will result in immediate terminаtion. I would advise you to consider very carefully the areas in which you agree to work — do not put yourself in a position that might result in a repeat of this.
Although Mr. Chavez was plaсed on disciplinary probation, his work activities at the hospital were not altered or restricted. Approximately six months later, on July 2, 1994, Mr. Chavez entered the hospital roоm of appellee, who was recovering from surgery to correct complications arising out of a heart catheterization. Mr. Chavez announced that he had been assigned to bathe appellee, and he did so against her express wishes and protestations. He pushed her gown up to her breasts, bathed only her vaginal area, аnd left her in a wet bed when he was finished. Appellee suffered extreme psychological trauma, anxiety, and distress as a result of the incident. Appellant concedes that Mr. Chavez’s act was criminal and that it resulted in a conviction of first-degree sexual abuse.
Appellee proceeded below on the theories of respondeаt superior, negligent hiring, and negligent supervision. Appellant argues that the evidence was insufficient to support a verdict for appellee on any of these theoriеs. We limit our discussion to the sufficiency of the evidence to support a finding of negligent supervision because we find that issue to be dispositive.
Appellant contends that this cаse is controlled by Porter v. Harshfield,
The distinction between the theories of respondeat superior and negligent supervision has been described as follows:
Employers are subject to direct liability for the negligent hiring, retеntion, or supervision of their employees when third parties are injured by the tortious acts of such unfit, incompetent, or unsuitable employees. In order to recover, the plaintiff must show that the employer knew, or in the exercise of ordinary care should have known, that its employee’s conduct would subject third parties to an unreasonable risk of harm.
This theory is completely separate from the respondeat superior theory of vicarious liability because the cause of action is premised on the wrоngful conduct of the employer, such that the employer’s negligence was the proximate cause of the plaintiff’s injuries.
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In addressing the risk created by exposing the public tо potentially dangerous individuals, employer liability does not, in most jurisdictions, depend upon the scope of employment requirement of respondeat superior. Therеfore, the claim provides a remedy to third parties who otherwise would not be able to recover under respondeat superior because of the scope of employment requirements.
27 Am. Jur. 2d Employment Relationship § 472 (1996).
Arkansas recognizes the tort of negligent supervision. See American Automobile Auction, Inc. v. Titsworth,