Birkner v. Salt Lake County

Utah Supreme Court · Torts

TortsRespondeat superiorScope of employmentNegligent supervisionComparative negligenceIndemnificationscope of employmentrespondeat superior

Facts

Birkner sought help from the County's Intensive Treatment Unit, where Flowers worked as a crisis worker and social worker, and he provided counseling and related assistance over several weeks. During and around therapy sessions, Flowers kissed and fondled Birkner, conduct both he and Birkner agreed was not part of therapy, and Flowers admitted it fell below the standard of care. The jury found Flowers 50 percent negligent, the County 40 percent negligent, and Birkner 10 percent negligent, and the trial court denied the County's efforts to avoid liability and granted Flowers indemnification on his cross-claim. County rules and professional rules forbade sexual activity with clients, and Flowers admitted his purpose was not to further the County's interests.

Issue

Whether Flowers' sexual misconduct with Birkner occurred within the scope of his employment so as to make Salt Lake County liable under respondeat superior, and whether Flowers was entitled to indemnification from the County. The court also addressed whether the County could still be liable for negligent supervision and whether comparative negligence was properly submitted against Birkner.

Rule

Under Utah law, employee conduct is within the scope of employment only if: (1) it is of the general kind the employee is hired to perform, meaning it is directed toward accomplishing the employer's objectives or reasonably incidental to assigned duties; (2) it occurs within the ordinary temporal and spatial boundaries of employment; and (3) it is motivated, at least in part, by a purpose to serve the employer's interest. If the employee acts from purely personal motives unconnected to the employer's interests, or the conduct is highly unusual and outrageous, the employer is not liable under respondeat superior; however, the employer may still be liable for negligent supervision if supported by evidence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a county counseling center in Phoenix, licensed therapist Nora Benton was assigned to provide grief counseling to Elena Ruiz. During a scheduled session in her office, Benton began massaging Ruiz's shoulders and then sexually touched her, later admitting the contact was for her own gratification and not part of any therapeutic technique. The center's policies and professional rules barred sexual contact with clients.

Is the county most likely vicariously liable for Benton's conduct under respondeat superior?

Explanation. Under the majority's three-part test, conduct is within scope only if it is of the general kind the employee is hired to perform, occurs within ordinary time and space limits, and is motivated at least in part by a purpose to serve the employer. Sexual contact with a patient that both parties understand is not therapy and that serves only the therapist's private interests is outside scope as a matter of law, even if it occurs during a session and even if framed as negligent treatment. The intentional-versus-negligent label is not generally dispositive. (Derived from Birkner v. Salt Lake County (n.d.).)