Ten Broeck Dupont, Inc. v. Brooks

then there the identical instructions would (d/b/a DUPONT, TEN BROECK INC. jury no error. “Because the palpable

be Hospital), Appellant, Ten Broeck ultimately guilty Bell all found five abuse, it rationally counts of sexual can be fairly juror deduced that each believed BROOKS, Artemecia Appellee. guilty Bell was of the five distinct incidents identified the Commonwealth.” Id. at No. 2006-SC-000484-DG. here, jury,

744. When the finds the Supreme Kentucky. Court guilty defendant under three identi- instructions, guilty cal and not on the other May three, a picture painted. different As Bell, must

stated be evident and “[I]t

clear from the instructions and verdict jury agreed, only

form that the sodomy, committed

Bell one count of but exactly they

also which incident all be- Otherwise,

lieved Bell occurred. is not verdict,

only denied a unanimous but is stripped

also realistic for ap- basis

pellate review of his conviction for sod-

omy.” Id.

Furthermore, since here jury found guilty

the defendant not under three of the instructions,

identical premature analysis

us to do an on the sufficiency exactly evidence. We do not know

which criminal acts the unanimously Therefore, guilty

found the defendant of. simply

we should reverse and remand for a trial addressing

new without the sufficien-

cy of the evidence issue.

SCHRODER, J., joins opinion. Ballantine, Sales, L.

John Tilden Walter Louisville, PLLC, Ogden, Stoll Keenon KY, Og- Larry Sykes, Allen Stoll Keenon KY, den, PLLC, Lexington, for Counsel Appellant. Hillerich, Crosby

Gary Robert Kevin Louisville, Burke, Warren, Roger Dale Ellerin, KY, Irwin M. Ellerin & Associ- ates, Atlanta, GA, Appellee. for Counsel Christian, Douglas Carole Mitzi Denise Combs, LLP, Wyrick, Wyatt, Tarrant and Louisville, KY, Kentucky Counsel Hos- pital Association.

Opinion of the Court Justice SCOTT. petition Appellant, Ten Broeck Upon Inc., Hospital Dupont, d/b/a (Ten Broeck), granted discretionary we re- opinion Appeals view of the of the Court of 30, 2004, affirming the November Court, judgment of the Jefferson Circuit awarding Plaintiff/Appellee, Artemecia (Brooks) judgment Brooks of two million ($2,091,000) ninety-one thousand dollars in compensatory punitive damages and against Broeck. Ten psychiatric hospital Ten Broeck is a lo- Louisville, Kentucky cated in where voluntarily Brooks was admitted on Janu- 5, ary 2001. in- Brooks continued as an patient January at Ten Broeck until day and thereafter remained as a 10, 2001, patient January January from against her action Ten Broeck, during Brooks that her (Gilbert), hospitalization Feotis Gilbert at Broeck, orderly the time an of Ten forced Brooks, her to have sexual intercourse. however, did not sue Gilbert. He was third-party added later as a defendant Broeck, prior Ten but dismissed to trial. The matter was tried before a re- sulting in a for in verdict Brooks Hectus, Hectus, sixty-one amount of one Charles Thomas hundred thousand Strause, PLLC, Calabrese, ($161,000) Jeffrey August pain suffering, dollars for and thirty trary employer’s one hundred thousand dollars to an liability for the ($130,000) pain suffering, for future and intentional acts of employees its outside eight million thousand and one hundred and scope course of their employment, ($1,800,000) punitive damages.1 in dollars opinion we reverse of the Court of issues, Appeals regards to these set alleges Ten Broeck the Court of judgment, aside the opinion affirming, erred its and mat- Appeals remand this the trial court underlying committed error ter back the trial court new trial. (1) excluding Brooks’ medical records For that shall reasons be set here- forth Broeck, patient while was a at she Ten in, we affirm Court Appeals’ deter- history well as her relevant sexual (1) minations on the testimony of Ten Act, the Kentucky Rape KRE Shield staff, as well Broeck’s as that of Detective for reasons said records and sexual (2) Jeffrey, concerning conduct; Gilbert’s history were relevant to the of dam- issue (14) introduction Gilbert’s fourteen (2) by ages; allowing hearsay testimony arrests, (3) misdemeanor affir- from several members of Ten Broeck’s mance of trial court’s denial of directed Staff and Detective Brad concern- Jeffrey verdicts for Ten Broeck on Brooks’ claims conduct; (3) ing by refusing Gilbert’s hiring/retention of negligent punitive the jury rape; instruct on the definition damages. (4) by giving “ordinary liability care” premised upon “degree instruction I. The exclusion of Brooks’ medical skill ordinarily care and of rea- expected patient while records at prudent hospitals acting sonable and un- evidence of her sexual circumstances,” contrary der similar to an history pursuant to KRE employer’s liability in for inten- Kentucky (5) Rape Law employee; tional misconduct of an Shield allowing introduction of misde- Gilbert’s with Ten agree We Broeck’s contention records; refusing meanor arrest that the trial court’s exclusion of Brooks’ a verdict in direct favor of Ten Broeck medical while patient records she was a at on Brooks’ claims for negligent hiring/re- Broeck, Ten as well as evidence her of punitive damages. tention and prior history, pursuant sexual to KRE concluded Having that the trial court 412(b)(2), effectively it right denied the to (1) excluding, erred in Broeck Brooks’ Ten (1) on the defend itself critical issues of records, medical well of her as evidence activity whether sexual the with Gilbert prior history, sexual all of reasons that consensual, (2) and the of issue highly same were relevant to the issue of and, thus, injury Brooks’ and damages and damages the of her establishment constituted error trial. warranting new mental and emotional just prior condition do not parties dispute during that (2) assault; alleged to sexual refusing p.m. to 7:00 a.m. 11:00 shift on Janu- jury to instruct on the of definition 2001, ary, Gilbert and Brooks engaged (“sexual assault”), “rape” thereby depriv- oral sex and intercourse. Brooks testified ing Ten Broeck of the that defense that request she refused Gilbert’s for sex been, “sexual might assault” have immediately occasions, prior on two on but Broeck, Ten argued a consensual encounter; (3) request, engaged third such Gilbert giving sexual of an “ordinary liability care” “raped” instruction con- her in oral sex and her without 2004, 16, 2004, by jury 1. The case was tried first in March November from to Novem- which resulted in mistrial. It was re-tried ber 2004. 26, 2001, Later, Brooks however, January admits, around that She her consent. in the “had sex” preceded the her father that she that told discussions the sexual denials, attorney, sexual He then contacted activity, hospital. her sexual sleeping her disturb activity police, did not and on Jan- calling itself who advised nearby nurses’ sta- roommate, 30, 2001, nor did was arrested and uary Gilbert activity. tion hear According to raping Brooks. charged with Broeck, time this was the first medical records dis- Ten Broeck Brooks’ Gilbert any rape allegation. learned admitting nurse advised that she close charge the criminal acquitted of recently increased. had that her libido August rape in a trial that “liked sex reflect she The records also sexually promis- been much” and “had too for Brooks Dr-. Lisa Goodman testified with nu- unprotected sex and had cuous She expert psychologist. at trial as an with at least one woman.” merous men associated with about outcomes testified regard feelings conflicted reported She general population.” “in the sexual assaults stating that she promiscuity, her sexual short, testify In she was allowed that this condition was bi-sexual theory upon damage based hypothetical her.” “stresses rape. an actual Her consequences January that on also reflect The records that a upon damage were based opinions her psychiatrist, informed Brooks In average victim. rape could cause Gibson, sex in the that she “had Dr. Steve contrast, expert witness was Ten Broeck’s Upon week.” further previous hospital dam- testify on the issue of not allowed regarding Dr. Gibson from questioning reported that Brooks’ mother ages, statement, out to her pointing and his age at fourteen Brooks had been molested hospital in the since only had been that she father, many and that her by her she stated she did January express relationships caused her to when, where, it occurred. not remember shame, and lack of self guilt concerns again matter Dr. discussed this Gibson esteem.2 9, 2001, whereupon January on her whether it had she was not sure she stated Brooks’ Ten denying admissibility night be- hospital at the or the occurred records, medical as well as fore was admitted. she history noted above evidence of her sexual 412, the trial court found pursuant to KRE concerning her Ten Broeck’s records “[tjhere probability that evi- strong is a claimed, Brooks at stay not reflect that do conduct, prior Brooks’ sexual dence of Ms. time, in “raped” the any that she had been admitted, the unfairly prejudice if could summary reflects hospital. discharge The reconsideration, motion for jury.” Upon comparison better” in that she felt “100% same, believing that again court denied the admitted, that group when she was the to accu- fairly will to and “jury the be able her, had helped had and that she sessions whether Ten Broeck was rately decide Upon in extremely well treatment. done Brooks sus- and whether Ms. negligent pri- that her discharge, Brooks indicated negli- its any injuries resulting from tained was that she be bi- mary concern past of her sexual gence without evidence to how registered sexual and concern as this. conduct.” boyfriend her would react to reported molestation and to discuss the expert psychiatrist. Dr. Gra- lowed

2. Ten Broeck’s nacher, express opinion injuries as was allowed to to her. abuse, family physical but he was not al- to is otherwise admissible un- missible if it denied Ten Broeck trial court also The value question probative rules and its hearing on der these evidentiary that KRE grounds outweighs danger admissibility substantially on 412(c)(2) sought with evidence “only deals preju- victim of unfair any harm to and 412(b). That under KRE introduced to be any Evidence of an al- party. dice acts of sexual particular with section deals reputation victim’s admissible leged sought to be introduced are conduct which controversy in only placed if it has been not the the accused was prove alleged victim. herein.” is not case perpetrator. Such (c)Procedure admissibili- to determine ty- A. KRE 412 (1) to offer evi- party intending A entirety, indicates as KRE in its (b) subdivision must: dence under follows: (A) at least four- a written motion file cases; ad- Rape similar KRE 412 and (14) specifically trial days teen before missibility character and of victim’s stating describing evidence behavior it is offered for which purpose (a) inadmissible. generally Evidence court, re- good for cause unless the is not admissible following The evidence filing or quires different time in- proceeding civil or criminal any trial; during permits filing except volving alleged sexual misconduct (B) all parties the motion on serve (c): (b) and provided in subdivisions or, alleged victim when notify (1) prove Evidence offered alleged victim’s appropriate, engaged victim other sexual alleged guardian representative. behavior. (2) admitting Before evidence (2) prove any al- Evidence offered must conduct rule the court predisposition. leged victim’s sexual vic- and afford the hearing camera (b) Exceptions: right to attend parties tim and case, following a criminal motion, pa- related be heard. admissible, if otherwise evidence hearing the record pers, and under these rules: admissible remain under seal be sealed and must (A) instances of specific evidence court orders otherwise. unless the alleged victim behavior 1992, KRE promulgated first When person that a other prove offered to However, cases. to civil apply 412 did not than the accused was source 1, 2003, July effective it was amended semen, evi- physical or other injury, ... any civil “applies to and now above dence; ‘alleged sexual involving an proceeding (B) specific instances of evidence ” Lawson, Ken- Robert G. misconduct.’ victim sexual behavior § 2.30[2] Handbook Evidence Law tucky accused of respect person (4th ed.2003). slight differ- Except for by the the sexual misconduct offered now essen- 412 is language KRE ence the by consent or prove accused to as Fed.R.Evid. tially the same prosecution; to offered admitting evidence (C) The test of directly per- any other evidence propen- or sexual prove sexual behavior charged. the offense taining to in three re- differs sity in civil cases (2) case, In a evidence offered civil governing general rule from the spects pre- behavior or sexual prove the sexual in Rule 403. forth admissibility set ad- any alleged victim is disposition of First, procedure it reverses usual victim’s sexual predisposition or that in Rule 403 spelled shifting out alleged engaged victim in other sexual be- proponent burden to the to demonstrate havior, and, (2) so, if is such other evidence admissibility making rather than the op- any otherwise admissible under other rule exclusion of the ponent justify evidence. evidence, 403, and, particularly KRE if Second, expressed the standard in sub- (3) so, probative does its value substantial- (b)(2) more stringent division than in ly outweigh the danger any of harm to rule; it raises the original threshold victim and of unfair prejudice any party. by requiring pro- for admission that the value of the evidence bative substantial- B. prove Is the evidence offered to ly outweigh specified dangers. Fi- alleged predisposi- victim’s sexual nally, puts the Rule test “harm to tion alleged or that an victim en- the victim” on the scale in addition to gaged in sexual behavior? prejudice parties. to the If the effect proof prove advisory Fed.R.Evid. 412 committee’s note victim’s sexual predisposition, added). (emphasis or that an alleged victim engaged in other Prior to the 2003 amendment expanding behavior, the evidence falls under cases, civil KRE coverage to 412 contained guidelines Thus, of KRE 412. standard, i.e., balancing its own the court approved Court has under KRS 510.145 required to find that “the probative (Michie 1985), predecessor to KRE 412 value of such evidence outweighs the dan- the exclusion of evidence showing that a 412(c)(3) ger prejudice.” of unfair KRE stepdaughter requested had birth control (2000 ed.) The 2003 relegated amendment Commonwealth, devices. Gilbert v. balancing test for evidence of criminal (Ky.1991); S.W.2d but see Olden “[B]y to KRE 403. requiring actions 227, 230, v. Kentucky, 488 U.S. 109 S.Ct. 412(b)(1) evidence under [KRE be ‘other- ] 102 L.Ed.2d 513 (holding that rules,’ wise admissible under these indicating evidence seeing victim was provision brings play into the balancing another man at the time of the rape and Minutes, test of Rule 403.” [KRE] Evi- living with him at the time of the trial “was Commission, dence Review Rules Com- law.”). not barred rape [our] shield mentary on Amended KRE 412 (Septem- 28, 2001). Thus, ber contrary to the old v. Young, Commonwealth rule, the today, rule in its criminal applica- 221, 224 (Ky.App.2005),the court held that tion, strongly “tilts in favor of admission statements an alleged victim to her co- Lawson, over exclusion.” supra worker, “that she engage wanted to in sex § 2.30[4][e]. with [the degree defendant] such a KRE balancing 412’s standard in civil it would cooler,” melt the ice in the water actions, however, requiring the court to commented, and that she also in reference “probative find that the value of prof- defendant, “that she ‘wanted some ” fered evidence substantially outweighs the that,’ constituted evidence of sexual danger of harm to victim and of unfair behavior, although it was held admissible. prejudice to any party,” 412(b)(2), KRE Yet, Id. victim, evidence that the after the strongly “tilts in favor of exclusion over alleged rape, continued an ongoing rela- Lawson, § admission.” supra 2.30[5]. tionship police department at worked, which the in a civil defendant analysis which under KRE includ- 412(b)(2), the court must informant, determine if ed work as a confidential “in no the evidence is offered to prove an alleged way and, ... involves sexual conduct

715 such, valuing probative particular Rule 412.” Id. value of is not covered laws, ‘rape primary shield’ “Like other item of evidence for reasons other than the protect alleged of KRE 412 is ‘to objective emotional reaction associated with unfair against of sex crimes unfair and victims Graham, prejudice. 1 Handbook Feder- of ” character.’ Law- assaults on unwarranted (4th ed.1996). Evidence, § al 401.7 “Un- 2.30[3], son, § supra delay” due or “cumulativeness” are the remaining equation factors Rule 403’s Here, by Ten the evidence offered and are designed give “to courts needed Broeck, primarily offered on though even litigators discretion to control tireless damages, attempt in order to the issue Lawson, to conduct efficiently.” trials su- preexisting to show the extent of Brooks’ § necessarily proof injury, produces pra 2.10[5]. engaged in other sexual behavior

Brooks As to cumulative evidence: implicates alleged predispo- duplicative Not all evidence that is ... is Thus, KRE applicable. sition. 412 is cumulative.... At times is reasonable party for a to insist that “one witness is is Whether such evidence otherwise C. good, but two or three my will make Kentucky under the admissible Rules stronger, though case much even all will Evidence, particularly KRE 403? short, testify in a similar vein.” In Although at times other rules of discretion to exclude cumulative evi- may applicable, evidence be the reference dence must be exercised a discrimi- 412(b)(2) inquiry, KRE “if it is fashion, nating wisdom, partic- and with rules,” admissible under these otherwise ularly goes where evidence to issues generally implicates KRE 403. Under of central importance. 403, probative KRE value of the evi Lawson, § supra (quoting 1 Muel 2.10[5] substantially outweighed dence not be Kirkpatrick § ler & Federal Evidence 96 issues, danger of the “confusion (2d ed.1994)). case, As is most often the misleading jury, consider rulings upholding the exclusion of cumula delay, presen ations of undue or needless tive evidence involve the limitation of wit tation of KRE cumulative evidence.” 403. vein, testifying nesses in the same or to Balancing probative value versus point. E.g., same United States v. danger prejudice unnecessary of undue is (10th Shelton, 736 F.2d 1409-10 Cir. step in this since test is this contained 1984); Johnson, v. United States 730 F.2d language within the of KRE under the (11th Cir.1984); v. concept prejudice.”3 of “unfair United States (5th Garrett, Cir.1983); 716 F.2d gener of the “Confusion issues” Gray, v. 507 F.2d United States ally used to exclude evidence that creates (5th Cir.1975). jurors side issues that distract from the analysis KRE performing the See, e.g., real issues of the case. United issues, important 403 on these it is (1st Pitocchelli, v. 830 F.2d States understand the difference be- fundamental Cir.1987); Longer Monarch Ins. Life tween KRE KRE 412. (3rd “[T]he 403 and Co., Cir.1992); 966 F.2d 786 United objective pro- KRE 412 is Dakins, (D.C.Cir. primary ‘to States v. 872 F.2d 1061 1989). against tect of sex crimes victims “Misleading jury” pri refers marily possibility of the over- unfair and unwarranted assaults on char- canl; certain, "Nothing history Kentucky's in the Rules the difference would be suggests imperceptible operation provi- difference 'undue in the [between Lawson, 2.10[4][a], § prejudice’ prejudice'] signifi- supra 'unfair sion.” ” Lawson, §

aeter,’ (quoting dom makes a direct comment cumulative. supra 2.30[3] Committee, Ken- “The in fact the Study excluded evidence was Evidence Rule Draft, Wilkinson, p. strongest Evidence—Final evidence.” Lewis v. tucky Rules of (Nov.1989)). 403, (6th Cir.2002). KRE on other 307 F.3d 422 36 hand, from the Federal “was borrowed was, “other- the excluded evidence essentially a codification of Rules but is rules,” wise admissible under these refer- poli- doctrine and longstanding evidence ring to the KRE 403 test referenced within Lawson, § “The issue cy.” supra 2.10[2]. 412(b)(2). KRE 403, then,] is whether the KRE [under helped will be or hindered search for truth proba- D. Does the excluded evidence’s distracting, confus- interjection substantially outweigh tive value emotionally charged evidence.” Id. ing, or danger the victim of harm to Federal {citing McLaughlin, Weinstein’s prejudice unfair and of other (2d ed.2002)). § Evidence 403.02[l][a] 412(b)(2) party under KRE hospital Brooks’ Ten Broeek Reviewing Balancing i. treatment, during medical records her as “ prejudice’ means the ‘Unfair history with- well as evidence of her sexual tendency suggest undue a decision in the of the issues and evidence context consideration; improper based on it ‘does trial, it is clear the evidence presented at damage not mean the to a case defendant’s highly probative regards the legitimate probative results from Her com- damages. issues of consent and ” force of the evidence.’ Doe v. Claiborne the hospital, ments that she had “sex” at County, By Through Tenn. Claiborne “raped,” is relevant to being rather than Educ., County Bd. 103 F.3d 516 consent, the remainder of issues of while (6th Cir.1996) (quoting States v. United the evidence is relevant to the issues of (6th Cir.1993)) Bonds, 12 F.3d Moreover, damages. prejudicial its value (emphasis original). “Evidence is un KRE was minimal on the relevant fairly if ... prejudicial only ‘appeals issues, considerations of “confusion of jury’s sympathies, arouses its sense of misleading jury, or consideration horror, provokes punish,’ its instinct to delay, presentation of undue or needless ‘may cause a to base its otherwise cumulative evidence.” KRE 403. something decision on other than the es does, that Dr. suggest, Appellee To ” propositions tablished in the case.’ Carter testimony Granacher’s on Brooks’ medical (3d Cir.1980) Hewitt, v. 617 F.2d (and condition rendered records (quoting advisory Fe. R. commit Evid. 403 therein) cumulative, Brooks’ statements note). prejudice tee’s is that “[U]nfair ruling inaccurate. the court’s ex- Under unnecessary which is and unreasonable.” evidence, Dr. Granacher cluding such Commonwealth, Partin v. 918 S.W.2d testify to Brooks’ statements could (Ky.1996) grounds by rev’d on other dealing sexuality her or the mental Commonwealth, Chestnut arising and emotional turmoil from her (Ky.2008). for which promiscuity, she was Since Brooks is both the victim and the seeking Appellant’s treatment. Nor was evidence, party opposing other both non-evidentiary comment counsel’s much,” applied must be with her in mind. likely to be tests Brooks “likes sex too at on the same as Brooks’ And must look the evidence “[w]e level conviction records, report, light proponent, most favorable to its ‘max- in the that “she likes sex imizing probative minimizing too much.” An attenuated comment sel- value and ” sexually In the of a active adult v. Mon- case Sutkiewiez effect.’ prejudicial (6th rape, to be the victim of Sheriff, 110 F.3d who claims County roe Cir.1997). findings frequently that she en- medical proba- in intercourse would not be gages

ii. Probative Value However, in charged. of the crime tive value of evidence probative The pre- the case of a female child who is tendency strength of its by the measured active, sexually not to be sumed the other of a material one side or prove to prohib- sexual contact is with whom Direct is often in the ease. evidence issue ited, frequent of sexual finding a medical circumstantial, but in than stronger value the relevance of evi- activity establishes to convincing, proves or which is most other perpetrator dence that the is one conclusive, finally pushes the more be charged. person than the conclusive of one’s case to a strength the fact, issue of is entitled level on a material concerning the evidence Omission of value. strongest probative to the activity between the ongoing the sexual Commonwealth, 828 In Barnett v. and her brother complaining witness (Ky.1992), stated: we S.W.2d light to of devastating appellant Rape Shield Stat- purpose The examining physi- the testimony 510.145,] ute!, generally then KRS expressed findings cian who of chronic sexual con- prior evidence prohibiting and, objection, without contact sexual in- is to complaining of a witness duct guilty party. appellant identified does not become that that witness sure the victim had en- possibility The admission through on trial party sexual conduct with gaged ongoing material nor that is neither of evidence phy- was not revealed to the sibling her The stat- charge made. relevant during his examination and inter- sician introduction of prohibit ute does view of the victim. This revelation trial, relevant, if probative evidence at physician qualify have to caused prior sexual conduct di- the evidence branding appellant as the omit his with which rectly pertains to the [act] assailant. charged. the defendant is Thus, “[ajppellant was re- Id. at 363. Barnett, In the Commonwealth Id. at 363. himself without bene- quired to defend testimony examining phy- of an offered the explained have which could fit of evidence chronic findings sician who testified findings. preclusion ... The expert’s young regards sexual contact con- of the victim’s sexual of the evidence the appellant victim and identified female to a with her brother was tantamount tact Yet, contact. perpetrator of such right present appellant’s denial of of several hand- “[d]espite the existence defense.” Id. at 363. [youthful] victim and her penetrated vagi- C.S.B. and caused Rodman, that, she contended “under the Therefore, opening nal to be loose. un- balancing 412(b), test of Rule evidence Barnett, appears der that the evidence her prior history sexual should have been past of the victim’s sexual encounter is probative excluded because value failed provide explanation relevant to outweigh substantially to preju- the unfair why vaginal opening, she had a loose dice toward her.” Id. at uphold- 1343. In guilt. rebut the inference of and admission, ing its the court held: Id. at 140. case, however, A central issue of the whether

Young, genital 182 S.W.3d at Judd contracted herpes involved a chai’ged rape defendant Expert who filed a from Rodman. testimony re- pursuant motion to KRE 412 to be allowed vealed that herpes virus can be dor- (1) to introduce evidence that the alleged long mant for periods of time and the victim made statements to her co-worker person infected asymptomatic. can be engage “that she wanted to in sex with the Consequently, prior evidence of sexual a degree defendant to such that it would relationships type protection and the melt the ice in the water cooler” and also during used sexual high- intercourse was commented, defendant, in reference to the ly relevant liability.- Rodman’s The ” that,’ “that she ‘wanted some of court did not abuse its discretion in ad- alleged frequented that the victim the po- mitting evidence of prior Judd’s sexual department lice where working he was at history. night and flirted or made sexual advances Id. Young’s directed at him. entire defense to Delaney City Hampton, charge of first-degree rape was that (E.D.Va.1997) F.Supp. 794 involved similar the sexual encounter was consensual. Id. circumstances. In Delaney, the court at 224. The trial court sustained the mo- found that such evidence should be avail- tion to allow admission of the offered evi- able to the jury, noting: dence granted a continuance for the It is clear from Delaney’s psychiatric file interlocutory Commonwealth’s appeal. On that she has had numerous stressors appeal, affirmed, of Appeals Court her life alleged besides the incident with stating: Parker including history of sexual This hinges is a case which solely on the abuse and other incidents such as an credibility of the prosecuting witness automobile accident. City has ex- and Young. There is no medical evi- perts who testify will that these stres- dence since the rape was not sors have contributed to her cur- reported for Excluding months. the evi- psychiatric rent problems. Therefore, dence as the Commonwealth desires evidence of past such abuse that is found

would be tantamount to denying Young Delaney’s psychiatric medical file his constitutional right present a de- should be admitted this case. fense of consensual sexual contact. Id. at 796.

Id. at 224-25. Here, evidence that the sexual Rodman, (11th activity— Judd v. 105 F.3d 1339 Cir.1997), admittedly which quiet occurred—was so is also instructive probative as to value in regards past sleeping Brooks’ roommate present was not in a activities civil action for awakened damages. nearby In and the nurses’ station Rodman, Judd sued Rodman for damages, never heard activity, sets the stage for significant weighed issue for the as to jury factual when regards to the appropri- or not the sexual activity whether ate issues consent damages. Moreover, or non-consensual.

consensual Weighing iii. danger of harm and Brooks’ to Dr. that she comments Gibson prejudice unfair to Brooks hospital,” “had sex in the opposed having been in the “raped” hospital, could Moines, v. City Wilson Des sugges- taken strongly be (8th Cir.2006), F.3d 637 a sexual harass- tive of consensual sex. Consistent suit, ment the court allowed into evidence point, her failure to report being sexually charged comments made “raped” during her admission and treat- plaintiff in the work place. Testimony was highly ment is relevant on this same issue. also that “lewd, allowed the plaintiff used unlady-like rude and in language the work- addition, In Dr. Lisa Goodman al- was place.” at Id. 643. The evidence was to testify plaintiffs lowed re- expert allowed on the plaintiff basis that garding hypothetical damage theory “might have welcomed the harass- consequences based on the of an actual ment.” The admission such of evidence rape. gave opinions She which were based was affirmed on appeal, wherein the court upon damage rape that a could cause noted: average victim. Though Dr. Goodman agree While we that the district court saw, Brooks, or diagnosed

never evaluated in mischaracterizing erred this evidence testify she was allowed to that Brooks as non-Rule 412 evidence Thus, first raped.” “was evidence “she that instance, there danger was no of harm liked sex too much” and “had been sexual- prejudice plaintiff] [the or any ly promiscuous unprotected and had sex other party, and the district court cor- with numerous men with at one least rectly determined that was admissible reported woman” had feel- conflicted as relevant to the raised [the issues ings regards to her sexual promiscuity, plaintiffs] claims. she that believed she was bi-sexual and these, that along with the state her of Id. health, resulting mental and emotional suit, In sexual another harassment Hall

which were admission for her reasons Authority Transit Lexington-Fayette Broeck, Ten strongly are relevant to the Government, County Urban damages. issue of (Ky.App.1994), the court allowed evi- addition, plaintiffs dence extra-martial affair Brooks’ mother’s report with a In affirming co-worker. admissibil- Brooks had been at age molested fourteen ity, the noted: court her many father and that her sexual relationships caused her to If express employee claim for made a dam- shame, self-, feelings of guilt and lack of ages upon based a physical trauma al- esteem, all relate strongly legedly issue suffered in workplace, any damages. Clearly, any damage prior she contemporaneous complaints re- suffering prior to the time of the sexual lating to other of the alleged causes January event of highly rele- injury certainly would be most relevant. question vant to the of what she damages reasoning applies injuries same Thus, suffered as result of the resulting event. non-physical from traumas required balancing KRE such sexual harassment. Evidence of 412(b)(2), the probative evi- value of the other factors possibly contributed dence necessarily high excluded would be plaintiffs] injuries emotional are [the defense, presenting damages to the issue of witness

clearly relevant evidence higher probative in this value of the case. 419- exclusion. Id at being considered for at 887. Id. Ten considering Brooks’ during the term of records Broeck medical circumstances, Considering objective context within the her treatment recognize we that Brooks entered evidence, particularly by the raised issues from her stemming for treatment the issues of consent and regards to past history and the mental and no To prejudice. find damages, we unfair created injury emotional turmoil the sexual event extent the finds We Ten Broeck’s rec- thereby. note from non-consensual, unlikely it is to have been summary discharge ords that Brooks’ contained within the rec that the evidence 20, 2001, she felt “100% January states sexuality sug her would dealing with ords admitted, that better” than when she improper basis. any a on gest decision her, had group helped the sessions find sexual event was jury the to the Were had well on treatment. that she done her consensual, to damage the Brooks’ then upon discharge principal Her concerns by virtue of the consent case would be might that she be bi-sexual and she were evidence of the medical rather than the boyfriend how concerned about her Moreover, can, a trial court con records. react to She this condi- might this. noted introduction of the evi current with the Moreover, fact tion her.” the “stresses dence, to the give admonitions such the trial itself—and we are not unmindful any it to avoid untoward use proper deems testimony generated teai'ful her Wilkinson, See 307 F.3d — of the evidence. stressful, and emotional for her. conditions (“The court could minimize at prejudice by admitting danger of undue Yet, to the extent the evidence cautionary awith instruc

the evidence true, it herein is is a truth she discussed tion.”). with for some time. To the has lived must also consider “the We true, expect extent that is not one would to of harm” the victim. KRE danger generate anger, it would which one would 412(b)(2). however, is, test ob This more evidence, be It is expect fleeting. to jective subjective, and must relate to than trial, if at would cause which disclosed harm potential physical, actual of a emo someone to want to hurt her. In review nature, opposed tional mental ing a trial court’s decision to admit or unfair affect one would assess prejudicial regard, proper evidence in this the exclude Thus, party. a this test is upon behalf of of review is an of discre standard abuse separate prejudice. from that of unfair tion. from a consideration Yet, the this danger measurement of relationship and the evidence excluded victim, harm to like that of “unfair the other this evidence to evidence a may party’s not transcend prejudice,” case, a the dan place we cannot value on Wilkinson, to fair See right a defense. ger of harm to Brooks that would over (“The 307 F.3d at 422 constitutional viola need of Appellant come the substantial are significant enough tions in case to of the excluded evi probative value rape outweigh any violation of the shield proba that dence. We thus conclude law, purposes can be served whose court.”). value of excluded evidence sub tive the trial instructions of Con stantially danger of harm outweighs versely, closer one gets damaging cross-examining prejudice unfair Brooks. party’s right to critical testimony DeBroy II. The of Nurses that the trial Accordingly, we hold Jeffrey con- and Reed Detective excluding its discretion abused court cerning Ten Broeck’s conduct of records dur hospital Broeck Brooks’ Ten Gilbert, employee, was admissible as, as well period, treatment ing her St. Matthews Police Detective Brad Jef- history as of her sexual other evidence investigating at time was fery, who herein, however, excepting, discussed rape of another Ten alleged, unrelated deposition that statement in her Brooks’ patient by patient, a fellow testified (100) men with one-hundred she had sex he or December of 2000 that November This last statement and one woman. attorney retained Ten Broeck told for reasons that remain excluded should investigation, that he represent it in the al Broeck medical records Brooks’ Ten prob- about “some more had information “she had been ready note that she stated hospital at on the adolescent lems unprotected and had sexually promiscuous at- Jeffrey Detective then told the side.” with at least with numerous men and sex Gilbert, named torney employee evidence is woman.” Once sufficient one wing, on the adolescent had worked the KRE particular point, on a introduced female young patients. some “perped” 412(b)(2) balancing “perping” considerations as the Jeffery Detective defined unnecessary protect against prime shift to lure or predator act of a sexual solely predator to before the sexual designed sexually victim repetition and unfair information Jeffery received the attacks. light. victim in a bad place a hospital employee. a from that KRE argument note Brooks’ We information was re- Jeffery’s Detective 412(c) the defendant to file a requires attorney to Ten Broeck’s by the ported (14) days at least fourteen written motion Greenhill. Thereaf- manager, Sherrie risk describing the evi- specifically trial before ter, by the Jeffery was informed Detective pur- for the sought to be admitted dence employee Ten Broeck had no attorney that However, for which it is offered. poses was unaware of such by that name and Ten motions were filed separate two Detec- objected Broeck to problem. admissibility of this seeking the Broeck testimony grounds on Jeffery’s tive after, evidence, before, the 2003 both hearsay. 412(b)(2), and KRE adding

Amendment Likewise, on the objected Ten Broeck evidentiary requested that Ten testimony of following grounds same improperly de- hearing, which the court charge nurse DeBroy, Ten Broeck’s Anita Nor, to we consider the evidence nied. do to 7:00 a.m. shift: p.m. for the 11:00 reputation as have involved evidence of patient’s a had rubbed 1. That Gilbert these Appellant. We find argued if was patient she leg and asked it wasn’t re- DeBroy without merit. noted that arguments “wild.” her, to reported it was directly to ported Moreover, error in the ex- having found re- She couldn’t somebody dayshift. on evidence, we cannot clusion of the stated to, but reported who it was member case, find it to be under the facts this nurse, Reed, have been a Nancy re- We therefore reverse and harmless. that received the dayshift person on they a new trial. To the extent mand for was There patient. complaint from repeti- capable and are preserved are investiga- and an about it report made tion, investigation, will address other issues Subsequent we also to tion. After changed. hospital procedures raised. that, a male and female were re- and “to watch how both her butt bounces.” Ac- her, patient together cording into rooms to quired go engaged to Gilbert in a lot of sexual talk. signs. take a vital She also noted that various patient’s incidents were reported before Brooks be- 2. Gilbert told her that he had read patient: came a young lady’s diary night one when he Q: say Is it fair to that type this working was in the unit children’s talk occurred on numerous occa- “gone back later then on and told her sions him? diary. that he had read her And that A: say, yes. That’s fair to reported also.” Q: say And is it fair to 3. She had of an would alleged patient heard have occurred on numerous occasions patient rape on in the hospital. Suppos- before Artemecia Brooks a patient edly, the man who committed the al- facility? Cole, leged rape, William was sent to KCPC, A: Yes. but night, she was there that actually happened Q:

didn’t believe it be- And it fair say that those inci- night cause she him all long saw in his reported dents were on each occasion to was, however, room. There a roommate someone in administration? it,

that said she had observed but the A: my knowledge they To report- were preoccupied roommate was people ed. being raped, and the account she gave of DeBroy also testified that she was short- event, “was the same identical ac- handed on evening rape allegedly count gave lady that she of another occurred and supervisor, so—informed her previously roommate, had been her be- Larry Koebel. Koebel told her simply

ing raped by patient. the same So redistribute existing employees. DeBroy whether a good telling she was historian believed the oc- incident Gilbert/Brooks you great story ques- not would be curred the same night complained she tionable of because her delusions.” Koebel that the staff was short-handed. 4. That she was aware of two staff Ten objected Broeck also to the follow- members that were terminated for Reed, ing testimony of Nancy Ten sleeping on the unit during their work Broeck’s supervisor of mental health asso- hours. ciates, to wit: 5. She had heard rumors that a former 1. That another mental health associ- female allegedly staff member had sexu- ate told her patient, that a whose identi- al relations with a patient former after know, ty she did not allegedly claimed patient’s discharge. That staff that Gilbert had leg. rubbed her reprimanded member was for her be- 2. That employee, another Regina havior eventually and was fired. This Kirkpatrick, had said she reported had alleged activity occurred after the managers, incident nurse John alleged sexual assault on Brooks. Bisig Larry or Koebel. addition, In DeBroy testified that Gil- addition, In Ms. Reed testified that the bert regularly would make sexual com- person reported “leg who rubbing inci- engage ments and in inappropriate sexual patient. dent” was a a supervisor, As she fact, conduct. she discussed Gilbert’s testified the information needed to be re- inappropriate behavior and sexual com- ported staffing to the managers, nurse Bi- ments with her co-workers. On one occa- sig and Koebel. She nursing admitted the sion, Gilbert told her that he liked to watch staff needed to watch things for such and a particular female walk down the hall— report them. She discussed it with the (“[T]he report (Ky.2006) associate made the was who are statements not Larry already hearsay advised that Koebel knew. evidence because they are ‘not that the report- She was told incident was admitted for purpose of proving the been said, ed and that would have before truth of what was but purpose for the on She describing assault Brooks. testified the relevant details of what that so place.’ ”); she was concerned about took Gilbert’s Marshall v. Common- wealth, conduct that she told co-workers “watch (Ky.2001) S.W.3d (statements for out him.” which show are knowledge not hearsay they because are not offered to Appellant’s objections to the above testi- asserted.). proof the truth of the matter mony grounds hearsay on the were Here, knowledge of the complaints, wheth- by overruled the trial court.4 Ten Broeck not, ultimately er true or highly rele- argues by statements made these vant to Ten duty Broeck’s to investigate “hearsay” or witnesses are “double hear- the conduct of Gilbert. say.” It is hearsay” asserts “double automatically precluded by the Kentucky However, assuming even 805, however, Rules of Evidence. KRE by statements made the employees re provides hearsay” that “double ex- “not quired secondary hearsay exceptions, they cluded rule if hearsay part each fall 801A(b)(4). within KRE KRE of the combined statements conforms 801A(b)(4)provides: exception” KRE rule. how- Admissions of A parties. statement ever, rules, hearsay like ap- other has no rule, by hearsay excluded even plication to non-hearsay. “there though the declarant is available as a would exception be no need for a second if witness, if the statement is offered had layer hearsay [a] statement one against party is: non-hearsay.” Lawson, layer Su- [one] § pra 8.90E3]. A statement the party’s agent or majority testimony concerning servant a matter within the offered Brooks to show that Ten scope of the agency employment, staff, had, through nu during received made the existence of the rela- complaints merous patients from tionship; staff

regarding purposes Gilbert’s conduct Here, statements made negligent hiring/retention claim.5 Broeck’s within scope nurses were the of Moreover, the staff testified the state employment their they as concerned the reported. ments had been patients interaction of staff with at Ten context, facility. in Broeck’s They

When viewed such the were received and state- required hearsay. reported ments are not See v. were to be to their due Jones 288, Heady, 290 (Ky.App.1977) employment. 553 S.W.2d KRE Accordingly, (Statement 801A(b)(4) 801A(b)(4) hearsay inadmissible would KRE apply.6 when knowledge); offered to show Kentucky counterpart see also is the to Fed. Commonwealth, 343, 801(d)(2)(D). Brewer v. 206 S.W.3d R.Evid. See v. Fields Com- 4.The court trial admitted most of the of the state- Some other statements were relevant i.e., 801A(b)(4), practice ability to Ten and ments under KRE Broeck's investi- "a state- incidents, gate discipline employ- well as by party's agent ment the or servant concern- ees. ing scope agency a within matter the of the employment, during made the existence the of 6. Ten Broeck references also the Confronta- relationship.” suggests tion Cause in its brief and that con-

724 510, adoption or belief (Ky.App. party has manifested monwealth, 512 801A(b)(2); 1995). also to the Federal truth.” KRE see commentary its 801(d)(2)(D) 118 Pilgrim College, v. Trustees Rule notes Fed.R.Evid. —and Tufts of 801A(b)(4) (1st Cir.1997) analogy thus, 864, (“Adoption 870 KRE F.3d —literal hearsay state types of any appro takes certain ly acquiesce may be manifested in hearsay manner”) consideration out of on recognized ments priate (abrogation theory they should be Bean, premise or the Crowley other v. L.L. grounds adversary system. Fed. a (1st admitted in Cir.2002)); Inc., 387, see 303 F.3d 406 801(d)(2)(D) advisory committee’s R.Evid. Wright-Simmons City also v. Okla of that such commentary stresses note. The (10th Cir. City, homa 155 F.3d 1268 from the enjoy freedom evidence should 1998) (“A ex adopted statement searching for an of “technical demands accepted acted adoptive party tent the in satisfac of trustworthiness” assurance evidence.”). However, the bur upon the hearsay rule and should be of the tion showing den the manifestation is on of Rather, ap admitted. Id. generously offering Ricciardi party the evidence. Cf. reliability testing for manner propriate Cir., v. Medical 811 F.2d Hosp. Children’s agents apply “the of admissions (1st Cir.1987). 24 determining if the agency,” test usual of Tufts Pilgrim, president of scope em made in the of admission was a com College, upon received and acted ployment. Id. report grievance mittee’s and recom Moreover, communications Thus, “acceptance of the mendations. its care, or their medical patients regarding the Report implemen contents of and [its] misconduct, are im complaints of staff recommendations, its dis tation of without necessary aspect of medical portant and claimer, Re adoption served as an ability up to monitor and provider's care port purposes [KRE Thus, care. there is grade medical 801A(b)(2) at 870. Pilgrim, ].” F.3d protects both en social which policy “ requirement There is no ‘declarant free communication of such courages the knowledge of facts un personal have made, complaints. When reports and/or derlying qualify statement’ for [its] staff, by the they receiving are evaluated Coccia, an adoptive admission.” v. Powers concern, is, the report and if to be found (R.I.2004) (quoting 861 A.2d be, passed appropriate or should on for v. Mary Brookover Hitchcock Memorial Here, investigation. DeBroy Nurse both (1st Cir.1990); Hospital, 893 F.2d patient complaints and Reed testified Mahlandt Wild Canid Survival upon. reported. were Several were acted Center, Inc., 630- Research F.2d adoption This manifested an or be action (8th Cir.1978)). repori/complaint lief truth of Here, complaints Ten reports patient. patient complaints received, patients Broeck’s were evaluated by acted upon or statements which were instance, Broeck, reported by and staff. by not hear its one Ten are excluded rule, re- say against hospital procedures changed it was offered Ten were quire presence of which the of both male and “[a] and is statement might rights implicated by apply; does not and the Amend- stitulional be ment Sixth non-hearsay testimony. apply civil Cabinet admission of ment does cases.” A.G.G., However, ‘‘[n]othing Washing- Family & [v. in Health Services v. Crawford ton, 36, 1354, 338, (Ky.2006) (citing United 541 U.S. 124 S.Ct. 158 L.Ed.2d S.W.3d Zucker, (2004) suggests reasoning 16 S.Ct. that its States v. 161 U.S. ] (1896)). apply Sixth Amend- 40 L.Ed. intended to where the spondeat superior” liability contrary on it patient to be in member female staff Blair, signs (Ky. vital were to Patterson v. 172 S.W.3d 361 patient’s when a rooms another, later, taken, as, 2005), noted Gilbert erroneously precluded and in as well investigation. pending suspended, asserting from the defense that Brooks to his just prior occurred former, later event raped. This As to the was not Brooks is evidence establish- there arrest. challenge “ordinary asserts that the virtue of its adoption by Ten Broeck’s ing preserved. instruction was not Hav care” upon action these two com- acceptance and record, including reviewed the the in ing plaints. by to the trial court structions tendered Broeek, judg Ten Ten Broeck’s motion for previously, the standard As noted n.o.v., ment Ten Broeck’s brief to the evidentiary trial court’s rul of review of a as its Appeals, Court motion for well Tumey of discretion. ings is an abuse review, discretionary we find that the ob Richardson, (Ky. jections arguments by made Ten 1969). Here, the statements and com question necessarily Broeek called into Broeck’s were testified to Ten plaints given form of the instruction and therefore receipt reporting and them staff preserved, although this issue was inartful complaints was within such statements ly so.7 scope purpose employ of their testimony purpose ment. As the trial, Throughout counsel Brooks’ show that the primarily was to statements testified, argued, and Brooks that she was made, they properly were admitted were witness, raped. damage Dr. Brooks’ to whether Ten Broeek should regards in Goodman, general testified about the investigated prior have the matter to injuries raped. suffered women who are Moreover, acted injury. Brooks’ those solely re- testimony upon Her rested her KRE are under upon admissible regarding damages search sustained 801A(b)(2). general population women who have saw, Nor can we find that the statements raped. been She never evaluated or unduly prejudi- detective or staff were Brooks. She noted was not diagnosed she above, we cial. KRE 403. Given the find only a clinician had testifying as made by the trial court in no abuse of discretion rec- cursory review of Brooks’ medical ruling its on these matters. Further, although she did not know ords. law, rape Kentucky the elements of under negligent III. Instructions raped. that Brooks was she testified hiring/retention claims objected any Broeek character- Ten A. The court’s refusal to instruct “rape,” as a ization of the assault rape definitions of on the to Brooks as a “victim of reference Kentucky Law court, ruling upon rape.”8 objection, noted that Dr. Good- trial court’s Broeck’s argues Ten Broeek instructions, “rape,” the term noted that the imposed “re- man used impermissibly regarding im- discretionary Ap- question the standard to be In its motion for review. ''[tjhe argued, pellant Appeals seminally at posed upon hospital Court of which is at page 11 states that Ten Broeek is liable for in Patterson v. odds with this court's decision alleged rape negligence as Gilbert's own (Ky.2005) S.W.3d 361 [172 ].” Blair imputed hospital because it Brooks care because it breached its standard of and alleged rape in acquitted of the 8. Gilbert was hiring engaged negligent and retention. criminal trial. his troubling policy public This raises another

726 “non-legal” from may have some view of must believe the evidence order to jury long dispositive and determined that as resolve each factual issue in rape what said, jury expert party heard what the favor of the who bears the burden of as the Palmore, Kentucky exclude use of the term on that proof court would not issue.” However, Juries, (5th § during the later in- Instructions to II 13.01 “rape.” Vol. ed.) conference, Commonwealth, (citing Brooks’ counsel ar- 508 struction Webster v. 33, (Ky.1974)). that it made no difference 36 gued whether S.W.2d And is the “[i]t raped, duty Brooks was because Gilbert admit- of the court to furnish a criterion for damages.” ted he had intercourse with Brooks. No the measurement of Kentucky (or Co., concerning defining) “rape” v. 252 instruction Utilities Co. Consolidated Tel. given. (Ky.1952). or “sexual assault” was 441 an in- S.W.2d struction is erroneous if it assumes or has sex, however, was Consensual appearance of assuming essential factual, if legal, Ten Broeck’s not defense concerning disputed Conley fact evidence. liability damages. Brooks’ claims Foster, v. (Ky.1960). 335 904 S.W.2d “[R]ape, aggravated one of the most bat teries, is, consents, Here, (2) gave if the woman neither the court two liabil instructions, rape ity nor even assault.” v. Goldnamer Instruction No. 3 and No. O’Brien, Ky. Ky. premised 17 4.9 Instruction No. 3 upon S.W. was (1896) (“Thus, general duty L. Rptr. ordinary woman care. As we immorally yields who to her seducer can discuss this instruction at length more sue, IIIB, Argument because she consented to and we will not consider it issue, participated wrong regards whereof she further in to this other than Therefore, thereunder, complains.”). consent if to note that to find for valid Brooks circumstances, jury only required under the is a defense to the was to find that assault, or appropriately, sexual said more “the Defendant failed to comply with [the duty of consent is an ordinary expected “[l]ack essential element care of reason battery [constituting prudent hospitals acting [the] able and Therefore, the absence assault.] of con similar and that such fail circumstances] proved necessary part sent must be as a ure on part [Ten was a substan Broeck’s] plaintiffs case.” Vitale v. Hen tial factor in causing injury to [Brooks].” chey, 24 (Ky.2000). 658-659 S.W.3d Instruction No. 4 read as follows: consent, however, knowing “must be Defendant, It the duty was ly intelligently given not be Hospital, acting by and through ... incompetence.” the result of 6A employees, ordinary to exercise care C.J.S., (2008); § 22 Assault see Koch v. in hiring Feotis employee Gilbert as an Stone, 529, 531, 532 (Ky.1960); or in retaining Feotis Gilbert as an em- 510.020(3). see also KRS ployee they when knew or should have “The basic function of instruc known that he was unsuitable for the in Kentucky tions is to tell the position what for which he was hired.10 apportionment argued 9. No issue of foreseeability required fleets the level of instances, i.e., liability this Court. in these "whether [the knew, employer] reasonably should have known, (1) employer] Although, [the we have was unfit for not been asked to con- instruction, job employed, for which he sider this entire we would be re- placement express job whether his miss not to concerns on or retention in that retrial as to "when,” potential effect of the word created an unreasonable risk to [an- harmof to, Moreover, Flor-Shin, Inc., compared Oakley "when and other].” if.” “unsuitable,” itself, insufficiently word (Ky.App.1998) (emphasis re- S.W.2d

727 you implied If are satisfied from evidence der an obligation to exercise ordi- Defendant, Ten Hospital, that nary care and attention for their safety, comply duty failed to with that and that and that such of degree protec- care and part such failure on their was a substan- tion proportion should be in to physical [Brooks], causing injury tial factor in to and mental of particular ailments pa- Plaintiff, [Brooks], you will find for the tient.”). against proceed Defendant and But, whether an intentional sexual as- A; Form you Verdict otherwise sault, encounter, or consensual sexual will proceed directly should Verdict Form support negligence against action in a B. party upon based the breach a profes- of jury In that the verdict did not refer- sional standard of care question is a that ence which of the two instructions the has yet be answered in state. A under, liability found we are unable to assault, however, sexual battery is a certainty by ascertain with findings their we have noted “[b]attery an inten- is which to resolve the of consent and issues tort; by tional it negli- is not committed damages.11 finding Absent a of sexual as- (cita- Vitale, gent act.” 24 S.W.3d at 656. (i.e., rape), meaning sault it non- omitted). states, however, tion Several consensual, we support cannot find in the question. have answered the See Russell awarded, damages for the evidence since Donaldson, J.D., Annotation, G. Liability testimony regarding Dr. Goodman’s dam- or Hospital Clinic Sexual Relation- of for ages hinged upon being the occurrence ships Physicians, With Patients Staff rape. Although un- liability Ten Broeck’s Healers, Psychologists, and Other 45 No. 4 properly premised der Instruction (1986); A.L.R.4th 289 see also Brendan de upon negligence its own in the “hiring O’Byrne, LL.B., R. B.A. Annotation Civil Gilbert, retention” compensatory of Liability or Psychologist Doctor of for damages must, form, therefore in some be Patient, Having Sexual Relationship with of injuries a measurement the victim’s (1970); Carter, 33 A.L.R.3d 1393 Phoebe And, employee’s from the acts. were Annotation, J.D., Employer’s Liability consensual, there no could be sexual as- for Assault, Theft, or Similar Intentional sault. Wrong employee Committed at Home employer “In for be order [an] Customer, or Business 13 A.L.R. 5th negligent hiring liable for [or] held reten (1993). 217 tion ... have employee must commit In McCracken v. Walls-Kaufman, 717 Scottsdale, City ted a tort.” Mulhern v. (D.C.1998), A.2d the court found (1990) (cita Ariz. P.2d be physician could liable in tort for omitted). underlying tions tort malpractice medical in sexual engaging intentional, assault, such be if patient, acts with his such conduct was negligent, such as a breach care. Cf. Inc., applicable established as a breach of the Flor-Shin, 438; 964 at see also Lex However, White, standard care. court also ington Hospital (“It acts, noted, (Ky.1952) freely “[c]onsent to the sexual questioned is not ... private hospital patients competently given, receives un- would be a defense added). foreseeability required The level 11. The verdict forms were not drafted in a approximately more reflected substitution liability manner to disclose which instruction "dangerously of the words unsuitable.” See jury found under. Kentucky also Palmore Instruction to Juries 22.02, (5th ed.) §Civil 28.07

728 of the circum- a The nature and extent theory liability. of Whether a to such consenting capable exploi- is of the surrounding alleged particular plaintiff stances question fact relationship is a to such a For carefully examined. tation must be 4. at trial.” Id. at n. to be determined Ms. presume we that example, will not consent. Hoopes incapable giving was Huddle, 724 So.2d 546 In v. Gunter relationship which admitted- The sexual plaintiff the (Ala.Civ.App.1998), and personal have been physician ly with the “oc- existed could her affair that profes- shadow of of treat- parameters [a] ‘within the curred unrelated therefore, and, it relationship,’ that sional Ms. ... also caution that ment. We upholding Id. In malpractice.” constituted required prove Hoopes only not claim, the the plaintiffs the dismissal the also that it was exploitation, but court held harm. proximate cause of claimed majority adhere to the rule

We likewise Id. at where, here, a ... that and hold nonpsychiatric physician patient of a Pedicano, N.J.Super. v. 373 Zuidema that he or she present evidence does not both A.2d dealt with 992 physician that that was to believe led malpractice and sexual assault. medical part the relationship was Here, supporting both allegation treatment, relationship a sexual patient’s sexually plaintiff was that the was claims patient physician and the between the The physician’s office. assaulted scope physician’s pro- of the outside the jury plaintiff that the “did not show found not consti- fessional services and does that of the evidence preponderance a professional malpractice. tute her. and battered physician] [the assaulted Id.; v. see N.X. Cabrini Medical Cen- also However, unanimously found that jury ter, 34, 719 N.Y.S.2d 280 A.D.2d medically negligent.” was physician] [the (N.Y.A.D. (“In view, Dept.2001) our no consideration, court Id. 997. In its at can ever trans- legal amount of rhetoric noted, the verdict further that “[w]hether heinous act committed Dr. form the jury a finding by could be considered anything than it Favara into other what had a physician] that Zuidema [the Moreover, was—a sexual assault. no not re- relationship consensual sexual was amount of rhetoric can obscure the dis- judge solved. The trial did comment explain how a sexual as- sent’s failure incident have been passing hospital’s a sault furthers business as n. 4. the court consensual.” Id. at provider.”). medical care verdict, jury’s holding: reversed Hammargren, 102 Nev. Hoopes stated, Simply sexual relations between (1986), the plaintiff 725 P.2d certainly are physician patient physician claimed used physi- condoned, may not plaintiff] but [the cian-patient to induce her into relationship theory malpractice type utilize medical relationship a sexual that such conduct support a claim based on an intention- malpractice. Recognizing the constituted independent physician’s prac- al act of a relationship “fiduciary physician-patient tice, assault. a claim sexual nature,” taking the court held that there no sexual jury found that “[sjexual advantage physician-pa- assault, claim, thus rejecting this relationship malprac- tient can constitute incorrectly a medical considered explaining tice.” Id. at 242. In its hold- however, improp- ing, negligence issue because court noted: Thus, patient to a public policy protect act. “[ ]a on an intentional erly based abuse jury’s verdict. from the deliberate malicious we reverse the by of trust a power [thera- of and breach omitted). (citation at 1000 Id. patient when that entrusts to him pist] commentary, the court also noted In its that he body hope her and mind the “[tjhere that we reported is no case n walluse his best efforts to effect a cure. of that has allowed form are aware of []” by a sexual as- proven to be negligence Hartogs, at 1111 v. 81 citing Roy Id. Id. sault, an intentional act.” at 998. 297, 350, N.Y.S.2d 301 Haider, 526, Misc.2d 366 Also, 17 A.D.3d Fragosa (rev’d (N.Y.A.D. grounds on other Misc.2d Dept. 85 N.Y.S.2d (1976)). 2005), held, complaint 381 N.Y.S.2d 587 the court does “[t]he alleging a of action medical not state cause of an question Aside from the whether as asserted in injuries malpractice. an support intentional sexual assault from the complaint the stemmed against employee negligent action for not [plaintiff], assault the intentional care, a duty of and thus breach of the rendered.” the medical services against employer negligent claim the Yet, a Lodge hiring/retention, v. Parkside Co- we either had sexual Bunce of lumbus, assault, 596 N.E.2d App.3d proof 73 Ohio not. The of or we did dam- (1991), extent, while a plaintiff, was, the dependant a ages great drug in a alcohol rehabilitation patient is con- upon determining it. The factor of her cocaine addic- facility for treatment sent, question pre- factual not a critical tion, relationship in a sexual with engaged jury by the the instructions. sented to facility. counselor at the She a senior underlying ignored act was Gilbert’s facility and the against later filed suit only which focused by Instruction No. counselor, claims, other alleging among “unsuitability” job, Ap- for the on Gilbert’s malpractice. uphold- In sexual assault and “unsuitability,” pellant’s knowledge such theory right proceed her ing hiring or reten- Appellant’s and whether the court held: malpractice, factor tion of “a substantial Gilbert was claim malpractice Maintenance of a does Flor-Shin causing injury [Brooks].” question of whether rely upon a narrow instruc- support such does not validly consented to the plaintiff] [the at 438. tion. 964 S.W.2d upon possible sexual contact but Flor-Shin, victim both the sued duty a her coun- [the breach of owed Thus, at tri- employer. tortfeasor and the that, although It is axiomatic selor]. al, have presented would instructions to a consent would be a valid defense finding requirement jury sexual assault or charge criminal to consideration of prior assault sexual to a mal- rape, consent is not defense Therefore, un- liability.12 employer’s sexual con- practice upon claim based have here, of consent would like the issue involves the breach of Malpractice tact. been addressed. duty; duty where the it- professional Here, concern since the evidence contact, self is to refrain from sexual event constituted whether or not the ing would not excuse the breach. consent sex, assault, was dis- consensual out of malpractice The action for arises assailant, would have previously the issue of consent had 12. The assailant Flor-Shin instance, guilty constituting pled properly to several crimes sex- In this been addressed. Thus, even had the court direct- ual assault. acquitted. Gilbert liability against a verdict for the victim ed failure give appro- Mentally Incapacitated court’s that a puted, the —Means under the hir- negligent priate person temporarily incapa- instruction is rendered claim, from whence ing/retention ble of her appraising conduct as a result finding as to whether a could make a of the influence of a controlled or intoxi- Gilbert, was committed “sexual assault” cating substance administered to her finding error. There must be a of a was consent, without her or administered liability damages to support tort under with her in a hospital consent or other theory negligent hiring/retention.13 medical care facility. phrase incap- litigation “A civil is entitled to party to able of her appraising conduct means theory have his of the case to submitted person that a does know that acceptance rejection or if jury for its sexual act will be performed.14 it.” any there is evidence sustain Risen Ordinary Care—Means such care as a Pierce, (Ky.1991). v. 807 S.W.2d jury ordinarily expect prudent would an the case in this This was not instance and person engaged in the type same it was error. business to exercise similar cir- reti’ial, Upon should the evidence be cumstances. same, substantially jury should be Physically Helpless per- that a —Means findings make regarding

able to Gilbert’s son is for any unconscious or other rea- assault of Only Brooks. physically son is unable to communicate may it consider findings then and make unwillingness to an act.

against Ten Broeck on Brooks’ claim of NO_ negligent hiring/retention. on retri- INSTRUCTION al, should, others, among the court instruct Care) (Duty of as follows: duty defendant, It was the Ten NO_ Broeck Hospital, acting by

INSTRUCTION through employees, ordinary exercise care (Definitions) in hiring retaining Feotis Gilbert as Mental substantially Illness —Means a if, employee knew, when and self-control, impaired capacity to use known, should have danger- that he was judgment or discretion in the conduct of ously unsuitable position for the relations, one’s affairs and social associ- which he was hired or retained. maladapted ated with recog- behavior or symptoms nized emotional where im- __(A) NO. INSTRUCTION paired capacity, maladapted behavior or (Liability) symptoms emotional can be related to physiological, psychological or social fac- You will plaintiff find for the Artemeeia tors. defendant, against Brooks Ten Commonwealth, argue 13. One could that the (Ky. found under thus, addition, Instruction 3 and App.1978). No. the breach the definition of Yet, ordinary underlying care tort. mentally incapacitated adapted has been disposed even approve were we of an "or- concerning potential cover issue ef dinary care” instruction in instances such as fects of controlled substances delivered within diis, record, infra, given see section IIIB hospital facility settings or medical care argument speculative. such an would be arose from the evidence at trial. Such adaptation fluctuating is consistent with the White, 14. The "incapable appraising recognized definition of standard 245 S.W.2d at her conduct” is consistent with Salsman instruction, under this a. Hospital, Feotis Gilbert engaged in sexual you if from are satisfied the evidence with contact Artemeeia Brooks at a that: time when she incapable of con- a. sent because engaged mentally ill, Feotis Gilbert in sexual she was

contact Artemeeia mentally Brooks with- incapacitated or physically consent, expressed out her or im- was, helpless,16of which he or should plied; been, aware;17 have AND AND thereto, defendant, b. That t prior he prior thereto, b. That defendant, t he knew, Hospital Ten Broeck or rea- knew, Broeck Hospital or rea- known, sonably should have sonably known, should have dangerously Feotis Gilbert was un- Feotis Gilbert dangerously was un- position the suitable for for which he for position suitable the for which he or employ- was hired retained anas hired as an retained employ- ee; ee;

AND AND c. Hospital That Ten Broeck failed to c. Hospital That Ten Broeck failed to comply duty ordinary with its care comply with duty ordinary its care in hiring the or retention of Feotis the hiring in or retention of Feotis employee; an Gilbert as Gilbert as an employee; AND AND d. part That such failure on the of the d. That such the part failure on defendant, Ten Broeck Hospital, defendant, Ten Hospital, Broeck was a causing substantial factor in was a in substantial factor causing injury Brooks; to Artemeeia other- Brooks; injury to Artemeeia other- you wise shall find for defen- the you wise shall for the find defen- dant, against Ten Broeck Hospital, dant, Hospital, Brooks, plaintiff, the Artemeeia un- against the plaintiff, der this instruction. Artemeeia Brooks under this instruction. NO_(B) INSTRUCTION Ordinary Liability B. The Care (Liability) Instruction If you do find for plaintiff, not Ar- An employer’s liability under Brooks, temecia under Instruction No. of “respondeat superior” doctrine re _(A), you -willfind for plaintiff quires proximate that the of plain cause against Artemeeia Brooks the defen- dant, injury tiffs must have been an act Hospital, Ten Broeck commit instruction, are you employee acting if satisfied ted within from evidence that: of his employment. Pat- scope course and Allen, Haywood 15.This with only consistent 16. The court should instruct on those (Ky.1966) (“Kentucky's capacity actually 406 S.W.2d issues of mental are that Burnett, supported evidence at retrial. highest recognized court that ... consent Cf. at 881. S.W.3d expressed, implied need not be but be surrounding from the facts and circum- concept 17. This awareness consistent stances.”). Commonwealth, Ky. with Wilson v. (1942). 160 S.W.2d Hospital duty It was of Ten Broeck employee’s 366. An terson, at intention and skill degree includes an to exercise that of care employment scope of where employee] ordinarily [an “committed expected tort reasonable al wholly misguided, is however purpose, hospitals its under similar prudent acting busi [employer’s] part further circumstances. however, If, employ Id. at 369. ness.” you If the evidence are satisfied from ee comply with defendant failed to ... purely personal motives acts from duty such on their and that failure way with the in no connected which [are] causing part a substantial factor interests, he is considered employer’s Brooks, will injury you Artemecia find have from ordinary departed case Brooks, plaintiff, for the Artemecia master is employment, his A; proceed Form otherwise to Verdict approach conforms liable. This [sound] 4.18 proceed to Instruction No. lia- theory of vicarious to the economic personnel Hospital’s Ten Broeck written above,] [, when because bility, discussed prohibited employees its from en- policy solely personal employee acts activity patients. gaging reasons, ability pre- employer’s patients by sex with its Ten Broeck’s the tort is limited. vent consensual, employees, whether forcible or 244 McCoy, Inc. v. Papa Intern. Johns necessarily scope is outside the of their (internal 44, (Ky.2008) citations 52 S.W.3d Nor, can employment. it be said fur- omitted). ther Ten Broeck’s See Cabrini interest. hiring retention Negligent (“No Center, Medical 719 N.Y.S.2d at 64 however, differ, liability from based claims explain of ... legal amount rhetoric can claims “respondeat superior.” These upon hospital’s how a sexual assault furthers employer use reasonable require that an provider.”). business as a medical care its the or retention of care in selection Analyzing Instruction No. 3 within the Flor-Shin, 964 at employees. S.W.2d trial, of at context the evidence introduced Here, the “respondeat superior,” under may that a find Ten jury one discerns act, strictly is liable for the while employer solely upon Broeck liable the occurrence of negligent hiring/reten of theory Brooks. Gilbert’s sexual conduct If tion, liability only be employer’s context, applied intended to be this upon own in fail predicated negligence employ- instruction violates rule of an in the se ing to exercise reasonable care liability ers’ enunciated in Patterson and employees. or retention of its lection If, hand, Papa Johns. on the other [an case which “[i]n duty upon breach of imposed employer] liability faces for the criminal 3, predi- Broeck under Instruction No. party, of a focus [must actions third upon cated the same factual foundation as criminal necessarily on whether the be] i.e., 4, hiring/re- negligent Instruction No. activity parte was foreseeable.” Ex South tention, it is redundant. Center, 785 Regional Baldwin Medical (Ala.2000). 368, Thus, absent So.2d 370 Moreover, care in ordinary foreseeability, which duty, no the breach of solely upon negligence struction is based liability, could arise. entails properly no such speaking, “[t]here is 3, thing negligent City as assault.” Louis regal’d, giv- In instruction No. as this of 819, court, (Ky. v. 821 provided: Yeager, en ville 489 S.W.2d hiring/re- previously negligent 4 is the tention instruction discussed. 18. Instruction No.

733 1973) Prosser, White, (D.C.1982). 159, (citing Handbook 442 A.2d 163 of (4th Torts, 40, ed.1971)); at 41 see Laiu beyond question “Since is clear of Farm Fire and Cas. v. van also State Co. act beyond scope [Gilbert’s] his Gorder, 355, 543, 235 Neb. 455 N.W.2d 545 employment and not in furtherance of [Ten (1990); Yeoham, Martin v. interests, only Broeck’s] can be [it] held (Mo.App.1967) (“Testimony tend- if responsible as it is ] established masterf charge negligence to sustain the ing they were negligent selecting, em- negative and dis- carelessness would [sic] ploying retaining him.” Fleming v. intentionality, approve willfulness Bronfin, 104 A.2d 408 (D.C.App.1954) that the proof wrongdoing part on Williams, citing Ledington Ky. v. would ex- the defendant was deliberate (1935). 78 S.W.2d 790 “An negligence.”). clude assault and bat- above, Consistent with the we not in- tery negligence. former is pointed out in O’Roark v. Gergley, 497 tentional; the latter is unintentional.” (Ky.1973), S.W.2d 931 “the princi familiar Yeager, (quoting 489 S.W.2d at 822 Lamb ple employe[sic] that when an steps out Clark, Ky. S.W.2d the scope side of his duties and indulges (1940)). personal some act of a nature employer his

To instruct in such circumstances on a responsible will be held in the absence separate negligence and distinct tort of forewarning.” reasonable Instruction only doctrinally is not unsound but a given court, No. by the trial does not It potential jury source confusion. guarantee fact, requirement. also raises the risk that even where no mentioned, previously Ten Broeck could committed], tort is [intentional have been found liable under this instruc negli- will conclude that some undefined strictly tion gence present upon being was for which relief of Gilbert’s conduct a justified. care, some sort is of its of pro breach standard which patients hibited sexual relations with ab Chinn, v. 839 A.2d District Columbia of (D.C.2003). any forewarning any sent to Ten of 701, 707, plaintiff 708 “[A] propensity. such The by ‘dressing up cannot seek to recover Instruction was assault, claim, erroneous, substance’ of one here in the therefore and should not be another,’ of ‘garments negligence.” here given at retrial. fact, Id. at 708. In is well settled that “[i]t law, Kentucky Under the ele battery negligence and assault claims negligent hiring ments of and retention mutually City are exclusive.” Pravda v. of (1) employer reasonably are: knew or N.Y., 174,

Albany, F.Supp. 956 183 n. 9 employee should have known that an (N.D.N.Y.1997) (citing United Nat. Ins. job unfit for the for which he was em (2d Inc., v. Tunnel. 988 Co. F.2d 353 (2) ployed, employee’s placement Cir.1993)); Ezell, see also Armoneit v. 59 job or retention at that created an unrea E.D.2001) (Mo.App. S.W.3d 633 plaintiff. sonable risk of harm to the (“[P]roof bodily of in resulting a willful act Flor-Shin, at 442. 964 S.W.2d Converse ... justify support jury harm will not Patterson, ly, in we noted: hypotheses of the case on a submission superior[ the doctrine of is respondeat ] injury recovery for which is predicated upon not tortuous act of sought negli was a result of an act of employer upon imputation but before, gence.”) “[n]egligence As said employer of a tortuous act of the em- battery claims and claims are assault by public policy ployee considerations mutually Negligence, exclusive.” 65 C.J.S. 12; § necessity holding responsi- but v. and the for see District Columbia

734 by employers for acts done reasons that are from person liable barred

ble business, prosecution in of his relying upon making others arrest records in em employers on an placing well as for ployment decisions when those arrests rec only employees. hire careful incentive to convictions, ords do not lead to employer not vicari- Ordinarily, an widely acknowledged that the use of such ously liable an intentional tort an adversely African-Ameri impact for records by employee purpose not actuated Co., cans. v. Pac. R. 523 Green Missouri motivated, as employer serve the but (8th Cir.1975); Gregory F.2d 1290 v. Lit here, solely by satisfy the em- desire to (9th Inc., Systems, ton 472 F.2d 631 Cir. ployees proclivities. own sexual Cincinnati, 1972); Tye F.Supp. v. 794 824 Patterson, citing 172 at 369 Ameri- S.W.3d (S.D.Ohio 1992). Gilbert is African-Amer Hall, & Accident Inc. can Gen. Co. Life ican. (Ky.2002) (emphasis 74 S.W.3d Although argument the above being, “respon- original). difference mentioned in Ten Ap Broeck’s Court of superior” upon employ- deat is based brief, peal’s it was not addressed er/employee relationship imposes Appeals. importantly, Court More this liability, negligent strict whereas claims of precise argument was never made in the hiring/retention negli- focus on the direct trial court. An appellate court “is without gence employer permitted which authority to review issues not raised otherwise occur. avoidable circumstance to decided the trial court.” Regional Jail For reasons that Instruction No. 3 violates Tackett, Authority v. S.W.2d rule, it is erroneous. Ward, (Ky.1989); Matthews v. 350 S.W.2d admissibility IV. The of Gilbert’s (Ky.1961); see also Lanham v. Com arrest record monwealth, (A (Ky.2005) Ten Broeck also asserts error in motion in limine will be treated the introduction of evidence of Gilbert’s court as not appellate raising matter arrests, fourteen misdemeanor none of strictly scope review within the which resulted conviction.19 Prior to motion.). objections Neither will the trial, preclude it filed a motion in limine to limine, in the made motion the introduction of these arrests on unduly preju evidence was “irrelevant and grounds that such evidence was “irrelevant dicial,” be treated as supporting this new unduly prejudicial.” The trial court argument. being unpreserved This issue permitted overruled the motion and their having presented and not been to the trial introduction. instance, in court the first we will not trial, In support admissibility of the at address it. Shorr, plaintiffs expert, Arthur testified that arrests that did not result in convic- Ten V. Broeck’s Motions by tion should have been reviewed for Directed Verdict department Broeck’s human resources A. for Motion Directed Verdict on the should making have been documented in negligent hiring/retention issue of its decision to hire or him. retain Shorr Ten Broeck for moved directed verdict conceded, nonetheless, that arrest records at the close of the evidence on the conviction, that do issue of not result in a cannot disqualify liability negli- be used to under Brooks’ claim for applicant. Appel- an error, lant now asserts in regard, gent hiring/retention, arguing this for that the evi- (3) 19. Gilbert had three other misdemeanor convictions.

735 (Second) prove (quoting was insufficient to that Ten Id. at dence 90 Restatement knew, known, 289(a)) or have that should (emphasis § Torts in original). In- presented a threat of as- Gilbert deed, each case must be evaluated on the patients. to Ten Broeck’s mo- sault totality its own circumstances consistent was denied trial court. Ten tion concept with of foreseeability. Broeck asserts the was error. denial Flor-Shin, itself, cited to Ponticas reviewing In a trial denial court’s Investments, v. K.M.S. 331 N.W.2d verdict, aof motion for directed all “evi (Minn.1983), 912-913 language whose is party dence which the prevailing favors particularly appropriate here: be reviewing must taken as true Although an will not employer be held liberty is at court determine credi liable for failure to discover information bility weight given or the which should be employees about [dangerous unsuita- Kentucky, to the evidence.” Humana of bility for the employment] that could not Inc., McKee, (Ky. 718 have been discovered reasonable in- in App.1992) (emphasis original). More vestigation, issue is whether em- over, party the “prevailing is entitled to ployer did make a reasonable investiga- may reasonable be all which inferences scope tion. The investigation from drawn the evidence.” Id. (emphasis directly related severity of risk original). third are parties subjected [the] Flor-Shin, court held estab- “the only employee. Although slight care law in recog- lished this Commonwealth in the of a hiring yardman, suffice nizes that an can be liable employer held line, production worker on a or other when its failure to exercise care ordinary employment types employ- where the retaining hiring employee or creates ee a high would not constitute risk of harm per- a foreseeable risk of to a third injury persons, to third “a very different at son.” 964 S.W.2d 442. The for test steps justified series of are if an employ- knew, liability employer] “[whether hours, ee be sent” is to after to work for (1) known, reasonably should have protracted periods apartment in the of a unfit employee] job for the [the young woman tenant. he employed, which whether placement (quoting Properties, Kendall v. job his retention cre- Gore (C.A.D.C.1956)); ated unreasonable risk of harm [oth- F.2d see also Id. Halverson, ers].” Kirlin v. 758 N.W.2d (S.D.2008) (considering employee’s explained As Inc. v. Pathways, public, minimal contacts the court Hammons, (Ky.2003): S.W.3d held, employer duty “was not under a Foreseeable are risks determined employee’s] employment to terminate [the part on what the defendant knew at the of this a matter history, because of a of the alleged negligence. time “The care.”); duty of reasonable Connes v. Mo to required recognize actor that his Inc., Transport System, lalla 831 P.2d a causing conduct risk of an involves (Colo.1992) (“The 1316, scope 1321 invasion of another’s interest if a reason- employers’ duty exercising reasonable man so exercising able would do while hiring depend large care a decision will attention, perception such the circum- ly anticipated degree on the of contact stances, memory, other knowledge of employee which the will have with matters, other pertinent intelligence, persons employment or her judgment performing as a reasonable man his would duties.”); 435, have.” v. 492 Garcia So.2d Duffy, 736 attacks. (“[I]n predator the sexual the em- before analyzing (Fla.App.1986) back after called the detective ap- attorney an to check out responsibility

ployer’s he necessary to hours and stated it is two-and-a-half background, about plicant’s Greenhill, work to be done to Sherrie type spoken had consider v. employee”). Williams director prospective human resources Broeck’s Inc., Sound, 386 So.2d advised Feather that she had manager and risk (“If wishes to employer (Fla.App.1980) one there Jeffery there was no that authority the indicia employee give name, descrip- anyone nor did fit others, quarters of living enter into to they prob- aware of such or were tion making of first responsibility it has a Jeffery passed had on Detective lems. it is respect to whether inquiry some to De- According description of Gilbert. so.”); Inc. Systems, C.K. Sec. safe to do oc- Jeffery, these conversations tective Co., Ga.App. & Indem. Acc. to the prior in December Hartford curred (1976) (“[Circum- 223 S.E.2d Brooks on assault of alleged sexual greater a may require of the case stances January 2001.20 night of degree meet care to amount of DeBroy, Ten According Anita to required.”) Whether standard of care p.m. the 11:00 charge nurse for Broeck’s care is employer exercises such not the shift, regularly Gilbert would 7:00 a.m. Flor-Shin, 964 jury question. ordinarily a in- engage comments and make sexual (“Thus, Flor- the issue of S.W.2d at conduct. She discussed appropriate sexual decide.”); a liability is for Shin’s co-work- and comments with the behavior (“This Ponticas, gen- at 913 331 N.W.2d following pa- about the ers and testified erally jury question.”). her, which, according to complaints, tient Here, evidence favorable reported where to Ten Broeck: Brooks, police Matthews that St. discloses rooms patients 1. Gilbert entered he detective, Jeffery, Brad testified pol- hospital which a violation of preda about a sexual received information icy; 2000, while in December tor at Ten Broeck up patients’ hand 2. Gilbert ran his rape at patient-on-patient investigating knew patient if she leg, asking the given information was Ten Broeck. The re- patient and when she another of Ten Broeck. The employee him an “she’s wild. plied yes, Gilbert said the information reported detective you Are wild?” Ten Broeck on attorney representing obtained and inappropriately 3. Gilbert alleged patient-on-patient matter of the personal read one of the children’s investigating. was then rape the detective diary; attorney he had he told the Specifically, inappropriate 4. Gilbert had an working on a call about Gilbert received patient. a lesbian conversation with he had wing and that the adolescent instance, DeBroy that told In one Gilbert of females on the “perped” couple on a walk particular to watch a female he liked Jeffery de- wing. Detective adolescent watch how her butt the hall “to down as the act of a sexual “perping” fined sexually bounces.” prime lure or a victim predator to v. Nationwide Reece prior Brooks’ evidence. See occurred

20. That this conversation Co., disput 217 S.W.3d sexual assault on Brooks Mutual Ins. cannot, Nevertheless, by Appellant. (Ky. we ed (citing Napier, v. Lovins rules, fac appropriate this 1991)). under the resolve truth of dispute tual must assume the —we Reed, a nurse 12. He Nancy supervisor acknowledged and and that these com- Broeck, mental health associates at Ten plaints “any were made before of this stuff was so concerned about Gilbert’s conduct regarding was known.” No in- [Brooks] that she told co-workers to “watch out for vestigation or action was taken Ten her, rubbing him.” According leg Broeck in response to this information. incident, reported. was retention ... “Negligent occurs Greenhill, manager Sherrie risk and di- when, during the course of employment, perform- human and rector of resources employer becomes aware or should Broeck, improvement ance at Ten ac- have become aware of problems with an knowledged testimony in her that she was unfitness, employee that indicated his discrepancy employ- aware of Gilbert’s employer fails to take further action application regarding ment criminal his reassignment.” investigating, discharge, such as convictions. Gilbert had three criminal ia, 492 So.2d at 438-39. Garc convictions, application, only but in his list- And, where “the hospital had received ac acknowledged one. She that ed she did tual notice of that allegations employ [the inquire discrepancy. not as to this She sexually patients assaulted ... ee] had Larry responsible Koebel were for employee] was not unforeseeable that [the Yet, hii’ing Gilbert. as risk she manager, consistent, would continue to act in a if not testified that she made a conscious deci- worse, Copithorne Framing manner.” not to provide sion Gilbert’s criminal back- Hosp., ham Union Mass. ground information to Koebel. She was (1988). 139, 142-43 N.E.2d aware of this discrepancy before Brooks Moreover, patient. became a acknowl- she Thus, viewing the evidence under the edged lying application that on an em- for standard, appropriate the court did not err ployment can be cause for immediate ter- denying the Appellant’s motion for di- hospital. mination from the negligent rected verdict on the issue of specific

Koebel one described incident hiring/retention.

reported to Ten Broeck in to Gil- regards rubbing patient’s leg

bert’s a female B. Motion for Directed Verdict acknowledged was a “big punitive damages deal” and on the investigated by should have been Appellant argues also that the court Broeck; indeed, hospital’s protocol re- refusing grant its motion for a erred quired investigation. He also admitted puni- verdict on Brooks’ claim for directed that there nowas reason for a male mental damages tive that the evidence for reasons associate, Gilbert, health such as to enter a Appellee, did not establish howev- same. patient’s female room alone. er, asserts, that agree, and we this issue Bisig manager/associ- John nurse presented in Ten Broeck’s motion ate nurse executive for Ten Broeck. He discretionary review. acknowledged that he was advised one Arguments punitive damages that staff nurses two children had law policy violate the of federal and state allegations made that Gilbert came into banning employment discrimination p.m. their room on the 11:00 a.m. 7:00 damages cannot be assessed punitive shift and made that made them statements Patterson, 172 S.W.3d at when girl feel uncomfortable. Gilbert one asked employee’s scope conduct is outside whether she liked sex and asked other and of no benefit to his employment, of his girl baby. whether she wanted to have a ages employer, questions previously The children were between the of 11 we have III(B) IV, Rape of evidence was what the Shield type and do not in sections addressed Law enacted to exclude. this issue as now preserve, present, not Appellant. “[I]ssues argued by MINTON, C.J.; joins opinion. Discretionary Re motion for

raised addressed this Court view will not be briefed before us and ad being

despite v. Com argument.” at oral Wells

dressed

monwealth, (Ky.2006). S.W.3d

Conclusion therefore, We, Ap- affirm the Court ASSOCIATION, BAR KENTUCKY IV, II, regards Issues peals’ opinion Movant, V(A) V(B), opinion but reverse the 111(A) I, on issues Appeals the Court III(B) judgment and vacate the SMITH, Brentley Respondent. P. this matter against Appellant remand 2008-SC-000523-KB, Nos. trial court for a new trial

back to the 2009-SC-000094-KB. opinion. consistent with this Supreme Kentucky. Court VENTERS, JJ., CUNNINGHAM May NOBLE, J., concurs in concur. Justice Opinion, excellent but would SCOTT’S testimony that the about

emphasize concerning sexually allegedly

incidents “Gilbert,”

predatory acts addressed majority Opinion II of the

under Section impermissible hearsay if

would have been

they proper been offered for a had not

non-hearsay purpose: to establish part of Ten Broeck that

knowledge on could be occurring.

such behavior

SCHRODER, J., only concurs result MINTON, C.J.,

separate opinion, ABRAMSON, J.,

joining that opinion.

sitting.

SCHRODER, Justice, Concurring only.

Result disagree majority’s

I with the view that promiscuity,

evidence of Brooks’ sexual

past sexual behavior and that she liked sex

too much was relevant to the issue of presumes

damages. This that woman sexually

who active promis- is more and/or by being raped

cuous will be less affected damages.

and suffer fewer I believe this notes written Commonwealth, Anderson existence suggested the her brother which circum (Ky.2001), involved similar them, between relationship of a sexual testimony was where the excluded stances identifying her by the victim statements right Again, to a defense. critical to the had as one with whom she sexual brother unlikely to have a child and the victim was contact, appellant the trial court denied only partner identi complaining partners. any right cross-examine possible appellant. as to their was the witness or her brother fied Id. at 362. sexual contact.” Therefore, a doctor that testimony from opening” vaginal a “loose had stated: reversing, this Court C.S.B. lead the to believe that Ap- claiming gave would he her herpes. On Judd’s must have been the one pellant who appeal, after a trial verdict in favor of

Case Details

Case Name: Ten Broeck Dupont, Inc. v. Brooks

Court Name: Kentucky Supreme Court

Date Published: May 21, 2009

Citation: 283 S.W.3d 705

Docket Number: 2006-SC-000484-DG

Court Abbreviation: Ky.