Lisa M. v. Henry Mayo Newhall Memorial Hospital
In Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291, 296-306 48 Cal. Rptr. 2d 510, 907 P.2d 358, the Supreme Court further clarified the circumstances under which an employer may be vicariously liable for an employee's intentional tort in Lisa M. The plaintiff in Lisa M. was sexually molested by an ultrasound technician employed by a hospital. ( Lisa M., supra, 12 Cal. 4th at p. 294.)
The Supreme Court considered the following question: "What . . . is the connection required between an employee's intentional tort and his or her work so that the employer may be held vicariously liable?" ( Id. at p. 297.)
The Supreme Court began its analysis by identifying a rule of law California does not follow.
The Supreme Court noted: "It is clear, first of all, that California no longer follows the traditional rule that an employee's actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer's interests. (See Rest.2d Agency, 228, subd. 1(c) conduct must be 'actuated, at least in part, by a purpose to serve the master'.)" (Lisa M., supra, 12 Cal. 4th at p. 297.)
Nevertheless, the assault or other intentional tort must have "a causal nexus" to the employee's work. (Ibid.) The Supreme Court noted an employee's motive remains relevant when it held, "An act serving only the employee's personal interest is less likely to arise from or be engendered by the employment than an act that, even if misguided, was intended to serve the employer in some way." ( Id. at p. 298.)
In the Supreme Court's view, the required causal nexus was to be distinguished from "but for" causation and it was not enough that the employment brought the tortfeasor and the victim together. The nature of the required additional link has been described in various ways:
"The incident leading to injury must be an 'outgrowth' of the employment citation; the risk of tortious injury must be ' "inherent in the working environment" 'or ' "typical of or broadly incidental to the enterprise the employer has undertaken." (Ibid.)
In addition, the Supreme Court explained in Lisa M., ". . . California courts have also asked whether the tort was, in a general way, foreseeable from the employee's duties.
Respondeat superior liability should apply only to the types of injuries that ' "as a practical matter are sure to occur in the conduct of the employer's enterprise." ' ( Hinman v. Westinghouse Elec. Co., supra, 2 Cal. 3d at p. 959.)
The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought." ( Lisa M., supra, 12 Cal. 4th at p. 299.)
The Supreme Court continued: "The tortious occurrence must be 'a generally foreseeable consequence of the activity.' In this usage . . . foreseeability 'merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.' This foreseeability test is useful 'because it reflects the central justification for respondeat superior liability: that losses fairly attributable to an enterprise--those which foreseeably result from the conduct of the enterprise--should be allocated to the enterprise as a cost of doing business.'" (Ibid.)
In Lisa M., the Supreme Court first considered whether there was a causal nexus between the tort committed and the employee's work. The court found the sexual assault was causally related to the ultrasound technician's employment in the "but for" sense; the assault would not have occurred had the technician not been so employed.
The technician's employment provided the opportunity for him to meet the plaintiff and to be alone with her, making the assault possible. But the technician's acts were not engendered by or an outgrowth of his employment. ( Id. at pp. 300-302.)
The Supreme Court noted:
"A sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. Here the opposite was true: a technician simply took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work." ( Id. at p. 301.) The technician's decision to engage in conscious exploitation of the patient did not arise out of the performance of the examination, although the circumstances of the examination made it possible.
The Supreme Court held: " 'If . . . the assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability.' ( Lyon v. Carey (D.C. Cir. 1976) 533 F.2d 649, 655 . . . .)" ( Lisa M., supra, 12 Cal. 4th at p. 301.)
The Supreme Court concluded:
"The technician's motivating emotions were not causally attributable to his employment. The flaw in plaintiff's case for Hospital's respondeat superior liability is not so much that the technician's actions were personally motivated, but that those personal motivations were not generated by or an outgrowth of workplace responsibilities, conditions or events." ( Id. at pp. 301-302.)
The Supreme Court in Lisa M. also analyzed the facts in terms of foreseeability.
The Supreme Court found the technician's misconduct was not foreseeable and held: "An intentional tort is foreseeable, for purposes of respondeat superior, only if 'in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.'
The question is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed.
The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought." ( Lisa M., supra, 12 Cal. 4th at p. 302.)
The Supreme Court held: "In cases like the present one, a deliberate sexual assault is fairly attributed not to any peculiar aspect of the health care enterprise, but only to 'propinquity and lust' citation." (Ibid.)
The Supreme Court concluded:
"The assault, rather, was the independent product of the technician's aberrant decision to engage in conduct unrelated to his duties. In the pertinent sense, therefore, his actions were not foreseeable from the nature of the work he was employed to perform." ( Id. at p. 303.)