607 N.E.2d 103 | Ohio Ct. App. | 1992
Plaintiffs, Debra Szydlowski and Teresa Gould, appeal from a judgment of the Ohio Court of Claims and raise three assignments of error as follows:
"I. The trial court erred to plaintiffs' prejudice by ruling that a psychological aide employed by the defendant to provide psychological counseling services could not have been acting within the scope of his employment when he engaged in sexual conduct with the plaintiffs while also finding that the sexual conduct foreseeably arose from the discharge of job related duties.
"II. The trial court erred to plaintiffs' prejudice by dismissing their claim under
"III. The trial court erred to plaintiffs' prejudice by ruling that it did not have authority to award attorney fees pursuant to
Plaintiffs, who are inmates at the Ohio Reformatory for Women, brought this action seeking damages from the state because of alleged sexual abuse by a psychological aide employed by the state to provide psychological counseling services to inmates. The case proceeded to trial before the Court *305 of Claims, which rendered a decision finding that the psychological aide in question acted outside the scope of his employment by the state in committing such acts if he, in fact, committed them, the Court of Claims finding it unnecessary to determine whether the wrongful conduct was committed by the psychological aide.
In its opinion, the Court of Claims stated that plaintiff Szydlowski testified that the psychological aide "kissed her, hugged her, and caused her to perform fellatio on him," and that plaintiff Gould testified that the psychological aide "kissed her, hugged her, caressed her, and attempted to have intercourse with her." Although there were other plaintiffs who made similar allegations with respect to the psychological aide, all but three dismissed their claims before trial, and the third plaintiff who proceeded to trial has not appealed. Later in its decision, the trial court expressly found that the psychological aide "was acting outside the scope of his employment when these acts occurred if, in fact, they did occur."
By their first assignment of error, plaintiffs contend that the trial court erred in finding the psychological aide acted outside the scope of his employment. In this regard, we are unable to distinguish this case from Byrd v. Faber (1991),
While recognizing the limitations of Byrd, plaintiffs contend that the psychological aide should have been found to have been within the scope of his employment when he engaged in the alleged sexual conduct with the plaintiffs because the Court of Claims found that such conduct was reasonably foreseeable. The trial court found to the effect that the psychological aide's conduct constituted independent, self-serving pursuits unrelated to the operation of the reformatory. In other words, if he performed the acts, he acted solely for his personal benefit, rather than performed services for the state. Although the reasonable foreseeable test was mentioned in Byrd,
The Court of Claims did state in its opinion that "[t]his court has little problem accepting plaintiff's counsel's contention that these acts were foreseeable," but this statement was in juxtaposition to the trial court's comment that it questioned "the policy of ODRC, which allows certain male employees to associate with female inmates in relative private circumstances." In addition, the Court of Claims specifically found not only that the alleged acts were manifestly outside the scope of the psychological aide's employment but that they were committed wantonly and recklessly and that the psychological aide is not entitled to personal immunity under R.C.
Essentially, plaintiffs urge this court to place a higher duty upon the state with respect to male employees employed to work at a reformatory for women and to have relatively private unsupervised contact with such women inmates than is imposed upon private employers under similar circumstances. We find no basis for imposing such a higher duty upon the state but find the principle of Byrd, supra, applicable. The first assignment of error is not well taken. *307
The second and third assignments of error raise essentially the same issue, namely, plaintiffs' contention that the Court of Claims has jurisdiction under Section 1983, Title 42, U.S. Code both to grant injunctive relief and to award attorney fees. Plaintiffs concede that their contentions are inconsistent with the decision of this court in Burkey v. S. Ohio CorrectionalFacility (1988),
Plaintiffs rely solely upon Section 1983, Title 42, U.S. Code as the basis and predicate for any injunctive action and, accordingly, we express no opinion herein as to availability of injunctive relief in the Court of Claims if predicated upon a state claim, rather than a federal claim. Nevertheless, we follow Burkey, and find neither the second nor third assignment of error to be well taken.
For the foregoing reasons, all three assignments of error are overruled, and the judgment of the Ohio Court of Claims is affirmed.
Judgment affirmed.
JOHN C. YOUNG, P.J., and TYACK, J., concur. *308