Zsigo v. Hurley Medical Center

Zsigo Medical Center HURLEY MEDICAL CENTER ZSIGO v (Calendar 3). Argued No. Decided Docket No. 126984. November June 2006. brought Zsigo Circuit Court Marian T. an action the Genesee Center, damages arising against Hurley seeking Medical from a nursing plaintiff sexual assault assistant while the court, patient emergency room. The Richard the defendant’s Yuille, J., summary assault, disposition B. denied of claims of distress, battery, and and intentional infliction emotional denied the defendant’s motion for a directed verdict at the close plaintiff’s proofs. jury of the A a verdict in of the rendered favor plaintiff judgment and the court entered a thereon. The Court J., Appeals, JJ., E and White reversed Donofrio, Bandstra, judgment the trial and remanded the matter for the court’s entry judgment plaintiff of a of dismissal on the basis that present question regarding failed to a material of fact liability respondeat superior. defendant’s under the doctrine of Unpublished opinion per Appeals, curiam of the Court of issued (Docket 240155). 4,May Supreme granted No. The Court plaintiff’s application appeal. for leave to 472 Mich 899 opinion by joined by In an Taylor Justice Chief Justice Weaver, Supreme and Justices Corrigan, Young, Markman, held: general regarding employer liability rule under the doc- respondeat superior trine of is that an is not liable intentionally recklessly employee the torts or committed beyond scope employer’s those are of the torts business. exception employer nonliability applies An to this rule of plaintiff apparent where the can show that he or she relied on the employee employee was aided harming agency relationship the existence of the adopted by between the has been Michigan Supreme Appeals Court. The Court of erred in affirmatively finding Supreme Court has judgment exception. part Appeals That of the Court of must 475 Mich 215 exception, be reversed. Court declined essentially noting parameters has no and can broadly, adoption expose employers applied be too and its would to the threat of vicarious that knows no borders for acts by employees clearly committed that are outside the employment. however, Appeals, correctly The Court of reversed judgment plaintiff the of the trial court on the basis that the failed to establish that defendant the was liable under the theory respondeat superior. part judgment of That of the must be affirmed and the matter must be remanded to the trial court entry judgment prejudice. for of a of dismissal with joined concurring, majority opinion, Justice the and Young, separately question validity application he wrote to the of the of agency principles Inc, Champion Security, in v Nation Wide Champion Mich 713-714 Court held that an employer “strictly supervisor accomplishes is liable where the rape through supervisory power the the exercise his over the However, supervisor Champion way victim.” the in was in no by managerial raping “aided” his in status his subordinate accomplished through inasmuch as the sexual assault was brute supervisor’s attempts supervisory force after the to use his powers such, isolated, Champion inexpli- had failed. As is an exception Michigan Supreme agency juris- cable in the Court’s prudence. part, part, Affirmed in in reversed and remanded to the trial court. joined by dissenting, Justice Justice would Cavanagh, Kelly, part part judgment affirm and reverse in the of the Court of Appeals, and remand this case the to trial court for further proceedings. Supreme implicitly adopted She stated that the Court 219(2)(d) 2d, Agency, Champion § 1 Restatement v Nation Wide 219(2)(d) Security, provides exception Inc. Section am general employer nonliability by rule of for torts committed employees scope employment employee outside the where an accomplishing by agency was aided in the tort the existence of the Supreme implicitly adopted relation. if Even the Court has not 219(2)(d), adopted § correctly it should be now because places employer adequately supervise the burden on the to an employee’s authority granted by employer. use of the the Section 219(2)(d)recognizes place, that it is to unworkable as the does, preventing people, the burden of an abuse of on plaintiff, powerless prevent majority’s like the who are it. The argument employer liability that boundless result if will adopts misunderstanding arises from a Zsigo v Medical Center op the Court 219(2)(d), acknowledging scope that this of the and avoids interpretation narrow Court can (2) (1) relationship, opportunity created balances prevent powerlessness perpetrator of the and victim resist contact, opportunity prevent the unwanted against determining employer guard the conduct whether vicariously can be held hable. — — Respondeat Superior. Torts Master and Servant regarding Michigan general follows the rule respondeat superior an under the doctrine of intentionally recklessly committed not hable for the torts employee beyond an those torts are employer’s business; Michigan has not general apply plaintiff rule that would where the can show apparent authority employee that he or she relied on the employee harming or that the was aided in relationship existence of the between the employer. (by Law Glen N. Glen N. Office of Lenhoff Lenhoff Kent-Bryant), plaintiff. and Robert Roth, (by & PC. Robert P. Roth and Marc S. Portnoy Berlin), for the defendant. The general respondeat superior J. rule of

WEAVER, its is that an is liable for torts of employees scope employ- who act outside of their question ment.1 This case raises the whether this Court respondeat superior has in 1 employer nonliability rule of found Restatement 219(2) (d). 2d, § Under an em- Agency, exception, this be for the torts of an ployer employee would liable of his or her acting employment outside “by “aided in the tort accomplishing” Stevens, 556, 562; (1951), citing Bradley 329 Mich NW2d Jones, 355, 358; Mich 4 NW2d 686 Martin v

the existence of the relation.”2 hold that this We previously adopted exception, Court has not and we adopt decline to it. affirm in the decision of the Court of part

We Appeals, reasons, but for different reverse in part, entry and remand to the trial court for of a judgment prejudice. of dismissal with

FACTS We the facts as related of Appeals: plaintiffs allegation

This case arises from that defen- assistant, employee, nursing sexually dant’s a assaulted emergency her in the room at Medical Center on July date, plaintiff suffering 1998. On that depressive episode brought manic when she was emergency department police placed defendant’s in belligerent, a treatment room. Because yelling, swearing, kicking, placed she was re- Eventually straints administered treatment. she was nursing left alone in the room assigned with assistant begged to clean the room. Plaintiff him to release her from the restraints. plaintiff,

While the aide was alone in the room with sexually remarks, she continued to explicit make entic- ing engage activity him to According sexual with her. plaintiff, get “[a]t she made these remarks him first to nurses,” out of the like the room other but when he went her, “suddenly thought very powerful she he was a person hospital” in the and “would [her.]” release resistance, engaged, digital aide without and oral sex plaintiff, with but he did not release her and left. One of right nurses came back into the room after the aide say anything left. Plaintiff did not because she was scared. 219(2)(d). Agency, 2d, §

2 Restatement Zsigo Hurley v Medical Center days reported Plaintiff the incident three later a worker, notified, police investigation social were and an employee might commenced. Plaintiff believed have janitor cleaning a provided been because he was and she general description employee. Through hospital’s of efforts, nursing approximately assistant was identified later.[3] three months

Plaintiff brought complaint against defendant Hur ley Center, Medical alleging assault, battery, and inten **4 tional infliction of emotional distress.* The trial court summary denied disposition counts, on these finding that there question was a of fact with regard to whether Powell’s relationship with defendant aided Pow ell in committing the tortious against plaintiff. acts

At plaintiffs case, the close of defendant moved for a verdict, directed asserting that defendant could not be hable for the torts of an employee acting outside the Plaintiff, his employment. relying on this v Court’s Champion Nation Wide Security, opinion Inc,5 argued that defendant hable under the “aided agency” relationship respondeat superior liability. The trial court denied defendant’s jury motion. The rendered a verdict for plaintiff in the $750,000 amount of in past damages $500,000 future damages. After reducing verdict to its Ctr, Zsigo Hurley unpublished opinion per Medical curiam of the (Docket Appeals, 4,May 240155), slip op issued No. at 1-2. pleaded charge attempted Lorenzo Powell no contest to a assault with great bodily murder, intent to do harm less than MCL 750.84. He was years’ probation. sentenced to five alleged negligent hiring Plaintiff had also that defendant was Powell, duty providing and that defendant had breached its safe monitoring patient. treatment and of a vulnerable Defendant filed a summary disposition plaintiff stipulated motion for negli gence counts be dismissed. 712 n 545 NW2d 596 475 Mich 215

220 op the Court value, a judgment the trial court entered present $1,147,247.42. favor of in the amount of plaintiff Defendant and the Court of in an appealed, Appeals, decision, unpublished reversed and remanded the case dismissal, entry judgment holding for of a trial in denying court erred defendant’s motions for summary disposition and a directed verdict because failed to a material present question of fact regarding defendant’s under the doctrine of respondeat superior.6 The Court of denied Appeals for plaintiffs sought motion reconsideration. Plaintiff leave to appeal, granted application.7 we

STANDARD OF REVIEW de This reviews novo a trial court’s decision on a summary motion for disposition.8 Summary disposi- 2.116(0(10) tion may granted pursuant be to MCR “[e]xcept when as to the amount damages, there is no genuine any fact,” issue as to moving material and the entitled party judgment as a matter of law.9When reviewing summary disposition, motion “a trial affidavits, court pleadings, considers depositions, ad- missions, and other light evidence... most favorable to the party opposing the motion.”10 reviewing

When trial court’s decision on a motion verdict, for a directed the standard of review is de novo and the reviewing court must consider the evidence in 6 Ctr, Zsigo Hurley v Medical unpublished opinion per curiam of the (Docket 240155). Appeals, May, Court of issued 2004 No. (2005). 472 Mich 899 Spiek Dep’t Transportation, v 456 Mich 572 NW2d 201 (1998). 2.116(0(10). MCR Rozwood, 109, 120; Maiden v 597 NW2d 817 Zsigo Hurley Medical Center nonmoving party.11 favorable to the light most

ANALYSIS gen- respondeat superior, the doctrine of Under the torts that an is not liable for eral rule is committed intentionally recklessly beyond employer’s those torts are 219(2) 2d, Agency, sets business.12 Restatement and also general respondeat superior forth the rule nonliability: exceptions lists certain (2) subject A master is not for the torts his acting employment, servants outside the of their unless:

(a) or the master intended the conduct the conse- quences, or

(b) reckless, negligent or the master was or (c) non-delegable duty the conduct violated a master, or

(d) speak purported the servant to act or to on behalf of principal upon apparent there author was reliance ity, accomplishing in the tort or he was aided relation.[13] agency existence of the in Michigan recog- this case is whether question 219(2)(d), the fourth to the doctrine exception, nizes Plaintiff respondeat superior nonliability. argues the fourth Michigan adopted, adopt, has or should now nonliability rule. exception respondeat superior 219(2)(d) provides Section can show that he or she

nonliability 11 Co, 408, 442; Elezovic v Ford Motor 472 Mich 697 NW2d (Weaver, J., concurring part dissenting part). in in 12Bradley, supra at 562. 219(2). 2d, Agency, 1 Restatement Mich 215

relied on the apparent employee, was aided in employee harming plaintiff by the existence of the between the relationship 219(2)(d) employer. and the Section and the commentary on that section excep- establish that this tion to employer nonliability applies primarily to cases involving misrepresentation deceit, for example manager when a store to cheat able store customers position manager because of his or her as store for the owner.14

Section was first mentioned this Court in McCann v Michigan,15 case which this Court separate issued four opinions, none of which received enough concurrences to constitute a majority opinion. A Court, however, of this declined to exception. Consequently, this Court did not adopt in McCann.

Nevertheless, several appellate court decisions have cited the McCann plurality’s reference to subsequent tort actions.16 After noting multiple such references, the Court of Appeals panel below concluded McCann v upon apparent authority, purported Mich part existence of the 247 NW2d 521 employer Restatement general principle exception NW2d accomplishing [2][d])----”); 14Id., See on other App 187, 212; 112 § 219 Zsigo Hurley, supra, slip op to act or to is also liable for the torts of his to that Michigan, (2004) (“In Agency, grounds Salinas v (2)(d), the tort ^[1976] 247 NW2d 521 general principle and introduced The Restatement speak 2d, Elezovic v Ford Motor comment on subsection 2. 398 Mich ....) relation,” Genesys by NW2d § 219[2][d]... or he was aided in some on behalf of the (citation omitted). the existence of the jurisdictions, 65, 71; Health ’ ” McCann v where the .”); 247 NW2d 521 Sys, at 3 principal (Kelly, Elezovic v Ford Motor Co, accomphshing 263 Mich courts have Michigan, ( 472 Mich 408 “Our employee agency J., and there was rebanee concurring), App ^[1976] of if 398 Mich relation.’ See the tort recognized Agency § ‘was aided in ‘ 315, 318; (2005) (“ “the servant recited the rev’d in Co, by The 219 688 an Zsigo Medical Center v adopted had Court Michigan supra. in Champion, her raped by Champion, supra,

In their em- liability on sought impose to supervisor harassment under quo sexual quid pro ployer 37.2103(i). The em- Act, MCL Rights Michigan Civil the Civil liability under to avoid attempted ployer did not employer theory Act on the Rights Call- his subordinate. rape to supervisor authorize agency prin- “construction ing employer’s in narrow,” Champion, far the Court ... too ciples 2d, § Agency, cited Restatement supra not elaborate on did Champion in a footnote.17 reaching this conclusion. citation 2d, Agency, reference “Restatement 219(2) (d)” have Champion may in footnote six about whether court confusion appellate contributed agency exception the aided adopted this Court respondeat under the doctrine of nonliability the reference clarify now superior.18 We 219(2) (d) only was made Champion, supra, 17 Champion, n 450 Mich at 712 6. Appeals Zsigo panel of the Court of held that this While the Champion, the reference in footnote 6 had Sys, App 315, 320; Genesys Appeals Health Court of in Salinas (2004), held 688 NW2d 112 otherwise: Further, Champion generally “adopted” question whether we exception an to the usual rule that

the Restatement intentionally committed held hable for torts cannot he only employee. mention of the Restatement rejecting passing in a footnote. In the course made in agency principles [as] far too nar- “construction of defendant’s row,” the Restatement Court made a “see” reference to [Champion, supra] unconvinced that exception. at 712 n 6. We are exception, espe- adoption of the Restatement this constituted an involving cially present tort actions not at one for cases like Champion. issue in 475 Mich 215 passing and on the very basis of the distinct facts of that rights civil matter.19 not, by We did reference, 219(2)(d). § The Court of Appeals erred in finding that this Court affirmatively adopted the “aided by the agency relationship” exception to liability under respondeat superior doctrine set forth in Restatement 219(2). 2d, Agency, However, again this case presents us with the opportunity to adopt the exception. 219(2)

In support of adopting (d), plaintiff cites First Circuit Court of Appeals decision, Costos v Coco- Costos, nut Island Corp.20 In guest was a an inn and had retired for the night to her room. The inn manager obtained a key to the plaintiffs room, entered without the plaintiffs knowledge, and raped her. In finding the employer of the manager vicariously 219(2) liable (d), under the court focused on the fact that, as an agent inn, of the the manager was entrusted Champion The dissent implicitly contends that the application. note, and did not limit its contrary, We Champion holding carefully apply only crafted to in the context pro quid quo 37.2103(i). sexual Specifically, harassment under MCL the Court stated: case, In we must decide whether an is liable for quid pro quo 37.2103(i); sexual harassment under MCL MSA 3.548(103)(i) employed supervisors where one of rapes its thereby subordinate and discharge. causes her constructive We

hold that an rapes they is liable for such where are accomplished through supervisor’s the use managerial powers. We believe that this best result effectuates the remedial purpose Rights Act, seq.; Civil MCL 37.2101 et MSA 3.548(101) seq. [Champion, supra et (emphasis at 704-705 added).] Thus, quid pro quo even in the harassment, context of sexual “accomplished through sexual assault must be supervisor’s the use of the managerial powers.” exception clearly Id. This limited apply does not the facts in this case. (CA 1998). 137 F3d 46 Zsigo Hurley Medical Center the Court knowledge room key plaintiffs with key the “instru- her. Specifically, to find where manager oppor- provided with mentality” rape. tunity accomplish criticized, to have appears sharply has been Costos Indeed, federal courts.21 by only two other adopted been Judicial distinguished by Supreme later Costos was Transport.22 v Maine in Mahar StoneWood Court of not that it had only not clarified highest Maine’s court 219(2)(d), questioned but also expressly court: exception by Costos application one that the First Circuit’s “instru At least critic notes mentality” analysis scope not delineate the of “instru does mentality.” Corp: Cre [Casenote: Costos v Coconut Island aided-by- ating a vicarious catchall under the 1099, (“By L R agency-relation theory, U Colo 73 aided-by-agency- ignoring properly scope narrow liability, prin relation the Costos court eroded traditional Indus., law.”); Burlington Inc. v. ciples of see Ellerth, 742, 760, 633, 524 U.S. 141 L. Ed. 118 S. Ct. 2d (“In sense, workplace are 2257 most tortfeasors accomplishing objective their tortious aided Proximity regular employment relation: contact afford victims.”).[23] captive pool potential 21 1999)(the ( Inc, 1366, Fla, Denny’s Supp LaRoehe v 62 F 2d SD 1373 vicariously § 219[2][d] restaurant liable under for racial defendant manager manager used directed at customers restaurant because slur customers); position denial of Del his as basis for services (ND Service,Inc, Ill, 947, 952 Supp F vMetro Ford & 206 2d Amora Sales 2002) (the § 219[2][d] defendant dealer hable under where the auto plaintiffs report to obtain the credit defendant’s was able employee’s pretenses position at the dealer under false because 1999) (CA States, 8, 876, ship). 181 F3d Cf. Primeaux v United 879 (declining exception noting, “[t]o our knowl Restatement apply edge, Dakota has had occasion Court of South Restatement”). § 219[2][d] or even cite 22 823 A2d 540 23 n 6. Id. at 546 475 MICH Thus, suggestion the dissent’s the Costos instru- ruling mentality generally accepted, post has been 238, is incorrect. have criticized primarily

Courts because rule exception swallows the and amounts to an of strict imposition liability upon employers.24 Indeed, it is difficult exception to conceive of an instance when the apply would not an employee, by because virtue of his or her employment relationship with the is al- ways “aided the tort.25 accomplishing” Because the exception is not tied to the of employment but, rather, the employment existence of relation itself, too far strays from the rule of respondeat superior employer nonliability. Gary Long, 403, 409; App (1995); See DC 313 US F3d (CA Metropolitan Perry Twp,

Smith v School Dist 128 F3d 1997). 25 reason, Appeals, For this the Court of in Cawood v Rainbow Rehab Ctr, 116; App (2005), wisely rejected 269 Mich 711 754 NW2d application exception involving in a case sexual assault a nurse patient panel succinctly of a a in rehabilitation center. The reasoned: employee “This Court has held an is not ‘aided in accomplishing relation,’ agency the tort the existence of the just exception, under the Restatement because of the ‘mere fact employee’s employment may oppor- that an situation an offer tunity activity....’” Genesys [Salinas for tortious v Health (2004)] Sys, App 321; quoting 263 Mich 688 NW2d 112 Ed, Harper App

Bozarth v Creek Bd 288 of (1979). Rather, only exception NW2d 424 the Restatement will apply empowers employee where “the itself to Salinas, supra commit the tortious conduct.” at 323. In this case, employee empowered engage defendant’s not to in the agency relationship. sexual conduct the existence He any instrumentality did not use his to entrusted inappropriate Instead, him in to order facilitate the encounter. employment relationship merely provided the existence of the employee opportunity engage inappropri- with the to in the Consequently, ate exception conduct. the Restatement would [Cawood, apply. supra 120-121.] not Zsigo Center Medical to recognize that were we Because we subjecting employers be potentially we exception would note decline to do so. We further liability, we to strict subject continue to to that, employers will be hiring, training, supervising their negligence for contends that these employees.26 dissent their will plaintiffs causes action available other injured is an to a who protection provide that an knowledge employee not have “employer does Yet, fails to the dissent granted authority.”27 misuse may an impose liability on this Court to recognize were circumstances, would very under these we employer If the subjecting employer liability. to strict fact be knowledge of employer’s prior that an dissent believes is required for bad acts employee’s propensity liabil- only then the basis impose liability, would propensities on an unknown ity employee’s based liability. be strict exception a broad danger applying such

Given employer nonliability because respondeat superior liability, subject to strict courts may be employers done so primarily have applied have cases on the basis sexual harassment/discrimination vicariously supervi- liable when a that an sexually agency position uses his sory harass an employee.28 hiring, negligent complaint in fact included a count Plaintiffs disposition stipulated summary ultimately after she to dismiss count that argued the trial court.

motions were before at 237 Post n 6. 1999) (Alaska (Alas, Veco, Rosebrock, P2d Inc v liability may imposed employee be an is aided held when Court vicarious by employee’s position employer, accomplishing with the but the a tort by damages punitive employer’s is limited to acts an vicarious acting scope employ managerial employees of their while within (New (2003) 162; ment); Corp, Super A2d v 359 NJ 819 447 Entrot BASF 228 475 Mich 215 of Court apply exception

One court that chose to outside employment the sexual harassment realm was Forrest,29 when, in v Supreme Vermont Court Doe it a applied police a case where officer sexually a a assaulted female cashier at convenience store. The held vicariously Court that sheriff was his deputy hable because used his agency position commit a assault on duty. sexual while asserts, 242, dissent post that this Court has option applying of in the tai- same lored manner as demonstrated the Vermont Su- preme Court in Doe v Forrest. Specifically, that court Jersey Superior employer vicariously supervi held Court liable for a scope employment supervisor sor’s conduct outside the of in the relationship); aided commission of the harassment (1997) (Arizona Schallock, 262; 250, v State 189 Ariz 941 P2d 1275 Supreme agency, supervisor’s “[u]nder Court held the common law of a apparent authority position power use of the actual or of his conferred — ‘gives employer’s] liability theory [the rise to under a — (CA respondeat superior.’ Frank, 9,1994)], [ of Nichols v 42 F3d 514 219(2)(d)....”). citing also, See, Burlington RESTATEMENT Indus tries, Ellerth, 742; 2257; Inc (1998), v 524 US S118 Ct 141 L Ed 2d 633 Raton, Faragher 775; 2275; v Boca 524 118 US S Ct 141 L Ed 2d 662 (1998). (2004). 476; Mary City Angeles, 176 Vt 853 A2d 48 also See M Los of (California (1991) 202; 3d Supreme 54 Cal 814 P2d 1341 Court held that police duty authority by when a on raping officer misuses his official detained, entity public employs woman whom he has him can be liable); vicariously Service, Inc, held Nazareth v Herndon Ambulance (Fla 1985) (Florida App, Appeals acknowledged So 2d 1076 Court of adoption 2d, case); [2][d] state’s Restatement in fraud Industrial Jersey Miami, But, Ins Co New v First Nat Bank So 2d (New see, State, 317; Bowman v 10 AD3d 781 NYS2d 103 “ Supreme adopt § noting ‘liability York 219[2][d] Court declined to premised apparent authority usually on [is] raised in a business (citation ”) dispute omitted); Connerly, contractual context.. ..’ Olson v (1990) (Wisconsin Wis 2d 457 NW2d 479 apply employment 219[2][d] declined to case where it did not appear actuated, part, by purpose at least in serve employer). Zsigo Hurley Medical Center v extending the for as basis v Boca Raton30 Faragher cited of sexual harassment beyond the realm dissent, to there According the setting. employment the that courts from Faragher factors balancing three are 219(2)(d).31However, the applying can consider those context in which very specific the ignores dissent namely to applied, supervisor-employee factors were language Faragher from The actual relationship. the to worded, precisely fact tailored but is in broadly in an suit harassment circumstances of sexual unique context. employment noted, v the in Doe Forrest dissenting justices

As the pro- in order exception Court the applied Faragher Act of Rights of the of Title VII Civil policies the mote the Court’s 1964, Faragher 2000e et Given seq. 42 USC dissenting exception, the application limited majority’s extension were critical of justices scenarios: factually distinct fundamen majority’s analysis and conclusion are [T]he First, noted, high intended tally court never flawed. as Ellerth[32]to any Faragher and have its decisions in prin development on the of common-law influence (2)(d) specific § 219 ciples application or the outside VH.[33] of Title context concluding application

In broad, case of that was too particular the facts justices noted: dissenting 2257; 2d 118 S 141 L Ed 524 US Ct 31 The dissent lists them as: (2) (1) relationship, powerless- opportunity created prevent perpetrator the unwanted ness of the victim resist the against contact, prevent guard opportunity to Forrest, supra citing 491.] at [Post at Doe conduct. Ellerth, Industries, supra. Burlington Inc v J., dissenting, joined Forrest, supra (Skoglund, at 509 Doe v C.J.).

Amestoy, 475 Mich 215 majority has a threat [T]he created of vicarious that knows no borders. limits its While holding “on-duty to sexual assaults committed law officers,” ante, enforcement the standard that it range employees applies articulates to a broad whose grant unique duties them access to and over others, teachers, nurses, physicians, such therapists, as officers, officers, probation and correctional to name abut observed, aptly As the court few. trial here the Court’s “eviscerate[j interpretation virtually general could J., scope employment (Skoglund, [Id. of rule.” C.J.).] joined by Amestoy, dissenting, dissenting justices aptly Vermont then noted: law, finding duty of negligence Like of a care in imposition agency principles of vicarious under rules, not from the rote application flows of but from a judgment policy considered that it is fair and to reasonable hold an liable for the harmfid actions of its employee. Souter, writing As Justice for the United States Raton, Supreme Faragher City Court in v. Boca 524 U.S. of 775, 662, (19981, 2d S. cogently L. Ed. 118 Ct. 2275 genuine observed: “In the instances which there is a question employer’s responsibility about the for harmful authorize, holding conduct he did not in fact that ultimately scope employment conduct falls within the of expresses ‘highly a conclusion not of fact but of law.... phrase’ liability] meaning [vicarious indefinite is ‘devoidof ‘obviously in itself and is more no than a bare formula to cover unordered and unauthorized acts servant expedient charge for which it is found to be to the master liability, with as well as to exclude other acts for it which is ” al., (quoting not.’ Id. at 796 Keaton [sic] W et Prosser (5th 1984))[.][34] [sic] Keaton on Law of Torts 502 ed. decline approach suggested by We to follow the Vermont Court in Doe v Forrest. As noted the dissenting justices case, in that do so C.J.). J., (Skoglund, dissenting,joined Amestoy, Id. at 506 Zsigo Hurley Medical Center liabil- the “threat of vicarious employers expose would employ- for acts committed no borders” that knows ity We of clearly scope employment.35 that are outside ees adopting of danger recognize too applied no and can be essentially parameters has exception, Because we decline broadly. failed defendant has to establish plaintiff mis- the sexual vicariously is hable for Medical Center clearly not who was nursing of its assistant conduct he employment of his within acting plaintiff. of misconduct with in acts sexual engaged

CONCLUSION correctly below reversed Appeals The Court failed court because judgment trial theory of liable under the that defendant establish portion therefore affirm that superior. We respondeat Appeals Court of May opinion of a entry the matter to the trial court remand prejudice. with judgment dismissal concluding However, Appeals the Court of erred 2d, Agency, Restatement an Champion, in supra, when we held harassment pro quo liable for sexual quid employer 37.2103(i). That part judgment MCL under adopt reversed. We decline Appeals of is Court liability for create exception, which would of his employee acting outside the torts of an aided in accom- when the is employment her relation- by tort existence plishing the is a Therefore, there plaintiffs assertion ship. em- fact whether defendant’s regarding question moot. agency relationship aided is his ployee 35 Id. at 504. Mich Young Opinions JJ. and Kelly, in part, part,

Affirmed reversed in and remanded. Taylor, Markman, C.J., JJ., CORRIGAN and con- Weaver, J. curred with (concurring). join J. I in fully concur and

YOUNG, opinion. I separately write question validity application this Court’s of agency principles Champion Inc, in Security, Nation Wide supervisor In Champion, NW2d in engaged quid quo hy sexual harassment pro offering care of” the she “take if submitted to his However, requests. sexual when the plaintiff rebuffed offer, his the supervisor raped plaintiff. This Court “strictly held that liable where the supervisor accomplishes the rape through the exercise supervisory power his over the victim.” Id. at 713- 714. I fail see how the supervisor’s “supervisory power” aided him sexually assaulting plaintiff, where he accomplished through the sexual assault brute attempt force his to use his supervisory after powers rape assault, had failed. A is a physical and the supervisor way was in no Champion “aided” his managerial raping status in his subordinate.

I it square any find hard to Champion with conven- tional agency, notion of isolated, it stands as an inexplicable exception Michigan our Supreme Court jurisprudence.

KELLY, J. odissenting). granted We leave in this case to (1) address two important questions: whether this Court has adopted Agency, 2d, Restatement and, not, if we whether should it now.

Regarding first question, explic- has not 219(2)(d). itly However, ten years ago in Zsigo Center Medical v Dissenting Kelly, J. Inc,1 Security implicitly we did v Nation Wide Champion we should question, the second regarding it. And adopt 219(2) (d) facts it to the apply § explicitly now of this case. use Appeals Court of affirm the I would

Accordingly, 219(2)(d) the trial and reverse §of recognition Summary dispo- summary disposition. grant of court’s exists question a factual because improper was sition who assaulted person concerning whether relation- agency the tort his committing aided in defendant. ship with 219(2)(d) ADOPTED HAS IMPLICITLY

I. THIS COURT for responsible not rule, employer an is general As a exceed torts that or reckless intentional employee’s an Stevens, 329 Mich Bradley employment. (1951). of the But 556, 562; 46 NW2d Agency provides: Restatement subject for the torts of his A master is employment, scope of their acting outside servants unless:

(d) speak on behalf of to act or to purported the servant author- upon apparent reliance principal and there was by the accomplishing the tort ity, he aided in Agency, [1 Restatement relation. existence 219(2)(d).] 2d, § liable essentially holds an abuse employee’s excep- in this case surrounds Our concern granted.2 702; 545 NW2d 596 primarily applicable in cases is claims that misrepresentation. agree I but do not believe deceit or 475 Mich 215 Dissenting Opinion by J. Kelly, in the phrase accomplishing

tion’s “aided tort the of and agency the relation” whether this existence 219(2)(d). previously § has Id. The holds that Court did not majority adopt 219(2)(d) § in I Champion. agree magic words the not But appear. “we Restatement” do I 219(2) (d) § that to disagree Court’s reference was that merely passing application its of the section Rather, was limited to the facts of that case.3 a close reading of that suggests the citation of Champion 219(2)(d) Also, § of part the Court’s rationale. 219(2)(d) §of expressly implicitly citation was not presented limited Champion, facts its give inclusion was designed guidance to the bench and bar.

Additionally, just § the citation of not a cursory statement. This citation of Court’s in Champion response was in of the one defendant’s arguments in that- case. The defendant-employer had it asserted could be for responsible super- its of rape visor’s it plaintiff-employee because never authorized the supervisor to Cham- rape employee. pion, supra at 712. In direct response, stated, this Court “This construction of principles is far too nar- 219(2) (d) limited to those cases. The comments on state that may exist where the is able servant to cause harm because of his or her position agent. provide anas also comments that the enumeration of 219(2)(d) applies exhaustive, situations where is not and the section applies agent physical Therefore, an where causes harm. I not read would narrowly majority so as the does. argues placement also citation a precedential footnote should determine its effect. This is dubious argument, considering that footnotes do sometimes set of the state Perhaps unfortunate, See, e.g., law. this is but it is true. United States v Co, 778; Carotene Products 304 US 153 n 58 S Ct Ed 82 L (1938), groundwork heightened scrutiny which laid the constitutional religion. of laws discriminate on basis of race Zsigo Center Medical Dissenting Kelly, J. 219(2)(d) to §to is then directed Id. The reader row.” proper should determine how a court determine agency principles. that, further stated This Court employ other authority over certain supervisor gives remedy responsibility take ees, the must misuse supervisor’s harm caused any Dundee, Id., City Henson v citing authority granted. (CA 11, 1982). citation Champion’s F2d because noteworthy especially Henson decision is (d): 219(2) §of a discussion Henson includes respondeat superior will not rules of The common law purposes always to suit the broad remedial appropriate be VU[4].... case, however, imposition In this of Title pro quo quid for sexual harass upon an general by supervisors appears to be in ment committed agreement principles. law See Restatement with common (master 219(2) (d) (Second) Agency § is liable for tort of accomplishing the aided in servant if the servant “was his relation”). [Henson, tort the existence supra 21.] n at 910 to refer to the direction to readers Champion’s

Given Henson, I do citation of and Champion’s Restatement 219(2) (d) only in § was mentioned not believe that passing.4 and mir- Nonetheless, seeks, by smoke majority this to have rors, appears to hide the fact that 219(2)(d). the issue as Framing § adopted implicitly Rights prohibits of the Civil Act of 1964 Title is the section VII seq. employment discrimination. 42 USC 2000e et carefully apply argues Champion majority crafted to was disagree. only quid pro quo Ante at 223-224.1 sexual harassment cases. state Champion case. But this Court’s broad a sexual harassment 219(2)(d) agency principles Michigan’s are in line with ment there 219(2)(d) expression to sexual fairly to limit be read as an cannot cases. harassment Mich

Dissenting J. Kelly, being Court adopted § whether this allows the majority to Champion overrule without need Moreover, show that it wrongly decided. Champi- validity questioned on’s was not But if below. even already 219(2)(d), Court has not we should explicitly it now.

II. THE COURT SHOULD NOW EXPLICITLY ADOPT Section correctly places responsibility on the employer any grant to ensure that it authority makes to employee is proper. employer has the power ultimate to decide will whom it hire. The em- ployer responsible determining what authority its employees Therefore, are allowed. it is the employer who should responsible be its employees abuse the authority gave authority them and the granted employees enables the to cause harm.

But in seeking shield from employers liability, the places instead the burden of preventing an authority abuse of and the corresponding harm on people powerless prevent it. This presents case perfect example. Plaintiff was taken defendant hospital against her will. strapped She was ato bed. Defendant’s then used his employer-given plaintiffs to enter room to sexually assault plaintiff. power She had no over who could enter her hospital room, and she could prevent the assault. The entity power with the to protect was the hospital. Yet, majority leaves to bear the full burden for harm she was to powerless prevent. 219(2) (d)

However, § recognizes that the majority’s approach of placing burden on the victim is unwork- It able. also that recognizes such an action would create an a situation where much employer has less reason to Zsigo Hurley Medical Center v Opinion by Dissenting Kelly, J. Therefore, authority.6 use of employees’ monitor its 219(2)(d) apply § it explicitly adopt Court should Moreover, majority’s reasons of this case. the facts 219(2)(d) are unpersuasive. § adopting for not embracing main reason for majority’s 219(2)(d) the rule. would swallow § is that “ ‘vicarious this would create According majority, for acts committed that knows no borders’ liability clearly scope employ- that are outside the employees (citation omitted). generic But this ment.” Ante at 231 219(2) (d). It §of rationale misunderstands can a acknowledging that this Court also avoids (d). 219(2) §of interpretation narrow expla- without Indeed, majority accept seems 219(2)(d) broadly construed. This § nation that must be majority’s of the calculated light understandable is 219(2)(d) a Pandora’s open §of will adoption fear that the fact that the em- ignores But this rationale box. for is the provides that ployer Liability is not authority by employee. tortious use of relationship created alone. employer-employee more than mere requires opportunity And 219(2) (d) light majority unnecessary that is of the believes involving tort remedies. of case law existence of other However review majority negligent hiring, training, supervising is shows knowledge part Negligence hiring requires on the incorrect. has criminal tendencies. Hersh Kentfield (1971). Builders, Inc, 410, 412; Negligent 385 Mich 189 NW2d 286 allegation training inapplicable here there is no because negli improperly Negligent supervising, like nurse’s aide was trained. hiring retention, requires knowledge part gent on the duty special circumstances exist that could establish Club, protect persons. third Millross v Plum Hollow Golf 196-197; listed This review of the torts NW2d adequately that none covers a situation where shows knowledge employee may granted employer does not have that an misuse Therefore, protect plain authority. victims like is needed tiff. 475 MlCH215 Dissenting Opinion Kelly, J. Ed,

to commit the tort.7 Bozarth v Harper Creek Bd (1979). App 355; Moreover, 288 NW2d majority’s blanket assertion that adoption will create “virtual” strict liability ignores the fact that other several courts have interpreted the exception narrowly.

For example, courts have taken several approaches to 219(2)(d). interpreting scope One is to adopt the instrumentality rule which explained in Costos v (CA 1998). Coconut Island Corp, 137 F3d 46 Another is to a balancing approach explained by as Forrest, Court of Vermont in Doe v 176 Vt 853 A2d 48 Both seek to balance the so as not to impose strict based solely on the employer-employee relationship or on the mere opportunity to commit the tort. respect

With to the instrumentality approach, Costos, supra, United States Court of Appeals for 219(2)(d). the First Circuit interpreted the scope §of In case, a hotel manager gained access to a guest’s room and raped guest. The court found that owner and corporate manager of the hotel could be held liable for the rape. Costos, supra at 50. The court reasoned: By agency virtue of his relationship defendants, with the manager inn, as manager] [the was entrusted with keys rooms, including room, [the victim’s] at the

Bernard House. manager inn, Because he was the exactly [he] knew where to find jury [the victim]. could manager] find that responsibilities [the had to be at the inn or to have night. short, others there late at In because he agent, was the defendants’ manger] [the [the knew that staying victim] House, at the Bernard he was able to find [the victim’s] room late night, key he had the to the majority’s misplaced. employment focus is The focus is not on the relationship, employer granted but on the employee. Zsigo Medical Center Dissenting Opinion Kelly, J. door, slip into bed key to unlock

room and used [Id.] rape her. slept, her she beside as requires Thus, instrumentality approach instrumentality through accomplished tort be Accordingly, status. with the conduct associated 219(2)(d) narrowly in Costos reads interpretation do not employers so that become and interests balances relation- employer-employee because simply liable words, instrumentality ap- In other ship exists. (d) 219(2) in strict §to does not result proach employers. approach, Supreme to the second respect With Doe, explored applica- supra, Court Vermont by committed a tion of to a sexual assault In duty. response officer while the officer was on police that unfathomable strict to the dissent’s contention result, explained the court that it was liability would trial court expressed “sensitive concern could lead to a rule that plaintiffs arguments that of an liable for all intentional torts principal makes Doe, in all at 491. agent supra circumstances.” court, concern, the id. at addressing In Vermont Court deci Supreme turned to the United States Industries, Ellerth,8 Inc v and Burlington sions 9 Raton, harassment Boca two sexual Faragher City of cases, In under Title VII. those brought cases concerned itself with the United States reading a narrow rejected last phrase Doe, such, at 489-490. As while language.10 supra of its by those strictly it was not bound observing (1998). 2257; 742; 141 L Ed 2d US 118 S Ct 2275; 141 L Ed 2d 662 524 US 118 S Ct rejected proffered reading Faragher, specifically In the Court merely apparent aid-in-accomplishing theory author refined the theory. ity 475 Mich 215 Dissenting Opinion Kelly, J. decisions, the Doe court viewed Ellerth and Faragher as strong persuasive authority and helpful proper 219(2)(d). Doe, application §of supra at 490. Accordingly, in following lead of the United Supreme Court, States the Vermont court in Doe rea- soned that it “important not to too narrow an interpretation of the last of 219(2)(d), clause but it is equally not to important adopt too broad an interpreta- added). tion.” Id. at 491 (emphasis The court also reasoned give it should appropriate deference to policy underlying reasons the United States Su- preme Court’s decisions. It decided to apply those policy reasons the context of an intentional sexual tort by police committed officer duty. while on such, As the Vermont court eventually determined the three considerations noted in Faragher cor- rectly balanced and, thus, (1) adopted them as its own. The considerations are (2) opportunity created the relationship, the power- lessness the victim to resist the perpetrator prevent contact, the unwanted the opportunity prevent guard against and the conduct. Id. at 491.11 majority Supreme asserts that the Vermont in Court Doe incorrectly Faragher Faragher relied on these factors from because involving supervisor-employee limited to cases a relationship. See ante at support assertion, 229. In of this relies on the Doe dissent. response But I find the persuasive Doe court’s fitting to that dissent and in this case. The Doe court observed: following Supreme decisions, In the United States Court we reject Supreme the dissent’s claim that the Court “never intended any for its decisions ... development to have influence on the of 219(2)(d) agency principles application common-law or the of specific outside the Supreme context of Title VII.” ... The applied Agency the Restatement of because it found that “Con- gress agency principles guidance” wanted courts to look to in deciding hostile environment sex discrimination under cases Title Thus, [Ellerth, 754], supra

VII.... in at the Court noted that it Zsigo Medical Center Dissenting Kelly, J. all three court, According Vermont victim, liability may in be weigh favor of factors under the set forth on the imposed 219(2) (d). Thus, court’s §in it is clear that Vermont and also not result strict approach does protect those who cannot themselves. protect serves to (Citation agency.” relying general “the common law of on omitted). be Court noted that state court decisions could decisions, “instructive,” they upon federal id. at but often relied starting point Agency of a useful and found the Restatement general through find the common law. Id. It went the various (Second) finally Agency of and cen- sections of the Restatement applied as the most useful. It then the “aided tered on principle” to the situation in the relation [Faragher, supra analysis Id. at .. The before it. 760-65.. similar, text, 801-802], in the the Court resolved a is and as noted 219(2)(d), holding dispute meaning language §of over the principle” merely “aided-by-agency-relation a was not apparent authority. refinement of is, course, every It the nature of the common law that law, represents development appellate decision common nothing suggests they in the Court decisions are not and Indeed, integral part process. the resolution of the exactly dispute meaning Faragher §of is over the develops kind of decisionthat best defines and the commonlaw.No engaged process, certainly in this not the common-law court highest country, expect a court of this would common-law influence on future decision on one set of facts would have no applying legal principle to a different factual decisions the same [Doe,supra 3.] scenario. at 490 n any event, underlying Faragher Court’s use of In the reasons though applies equal is a factors with force here even there these Therefore, relationship. supervisor-employee extension of those factors is just supervisor (Faragher) logical appropriate. example, For like a (Doe), unique patient police hospital office aide has access to and a patient depending is often defenseless. on the aide for care. The who may Imposing liability hospital prevent recurrence of an assault on the disagree creating vigilance. Accordingly, I with the an incentive for ignoring specific majority’s I context in which assertion that am Rather, Faragher applied the factors noted above. announced largely underlying policy considerations are the same. context and Mich 215 Dissenting Opinion Kelly, J. 219(2)(d) §

I agree with Vermont court that as by the interpreted United States Faragher, supra, reflects correct balance between 219(2)(d) § reading narrowly too it reading too I broadly. adopt approach would its for Michigan law.12 Again, liability strict does not from applica- result 219(2)(d). (1) § tion of Only those cases where (2) opportunity created relationship, power- perpetrator lessness victim to resist prevent contact, the unwanted the opportunity prevent to and guard against the conduct are properly balanced awill defendant be held vicariously liable. Doe, supra at 491.

Still, the majority prefers ignore to discount fact that this Court the power adopt has an interpre- 219(2)(d) tation of that does not cause liability. strict This Court could an adopt interpretation that encom- passes its previous statement employer gives

when an supervisors its certain employees, over other it accept responsibility must also remedy supervisors’ the harm caused unlawful authority. [Champion, exercise of supra 712.] view, In my the most disturbing aspect of the majori- ty’s refusal or apply is that its solely rationale is based on an unproven hypothesis. The majority reasons that adoption of the Restatement lead could to “virtual” strict But employers. this is simply unproven assertion designed to cause More importantly, fear. the majority does not acknowl- edge that it can interpret fairly balance the interests that seeks to protect, just as other Instead, courts have done. it merely states that it refuses to do so because its fear that strict liability reject instrumentality approach adopted by I do not out of hand the court, balancing approach compelling. Costos but find the in Doe more Zsigo y Hurley Medical Center Dissenting Opinion J. Kelly, holding is like a farmer a can would result. paint my “I dare not barn because paint saying, of red will become red.” barnyard carefully I would and majority, adopt Unlike the amend the common law embrace reasonable § in Doe and interpretation expressed § it func- The truth about Faragher. good public policy practical tions as and as law when above, In I interpreted properly. light of discussion unpersuaded by majority’s am rationale that bound- adoption less will result from a careful 219(2)(d). majority’s § rationale misunderstands 219(2) (d) § and acknowledge fails ability Court’s to craft a rule that would properly 219(2)(d). protected balance the interests under Therefore, had it in the past, we we should 219(2) (d) adopt today, thereby the burden on placing party capable preventing injury. most loss or Moreover, I apply interpretation would to this case.

Here, above, approach under the detailed a factual question agency relationship exists whether his assisted in committing posi- nurse’s aide the tort. Powell’s in emergency tion defendant’s room him the gave sexually a restrained opportunity patient. assault It appears powerless prevent contact physically unwanted because she was bound suffering episode. general, and was from a manic In are patients hospital vulnerable and trust staff and Therefore, their care. I would affirm the result of the Appeals decision of Court of and remand this case to proceedings. the trial court for further

III. CONCLUSION implicitly adopted I would find that this Court And if did not Champion. adopt even we MICH215 Dissenting J. Kelly, 219(2)(d) before, we should it now. We should did the Court of interpret as Doe, it to the facts of this supra, apply Vermont I Consequently, majority opinion. case. dissent from the I affirm in part part would reverse decision of the Court of remand this case Appeals, trial court for further proceedings. J.,

CAVANAGH, KELLY, concurred with J.

Case Details

Case Name: Zsigo v. Hurley Medical Center

Court Name: Michigan Supreme Court

Date Published: Jun 14, 2006

Citation: 716 N.W.2d 220

Docket Number: Docket 126984

Court Abbreviation: Mich.