§1.4 Liability for Assault or Battery by Another Person

• Library: Torts (OSBar) (2012 Ed.)

§1.4 LIABILITY FOR ASSAULT OR BATTERY BY ANOTHER PERSON

§1.4-1 Employer Liability

§1.4-1(a) For Actions within the Scope Employment of Employee

Under the doctrine of respondeat superior, an employer is liable for torts, including assault and battery, committed by an employee within the scope of employment. Stanfield v. Laccoarce, 284 Or 651, 654, 588 P2d 1271 (1978) (negligence claim). When the use of force is part of the employee's duty, an employer may be held liable for an assault and battery committed by the employee within the scope of employment even though the employee acted wantonly and in disobedience to the employer's positive instructions. Paur v. Rose City Dodge, Inc., 249 Or 385, 389, 438 P2d 994 (1968); Cook v. Kinzua Pine Mills Co., 207 Or 34, 63-64, 293 P2d 717 (1956). In contrast, when an employee commits an assault or battery solely for his own purposes, even though it occurs while the employee is on the job, the employer is not liable. Cook, 207 Or at 64.

For a detailed discussion of vicarious liability of employers for the actions of employees, see chapter 15. In general, three requirements must be met to conclude that an employee was acting within the scope of employment.

These requirements traditionally have been stated as: (1) whether the act occurred substantially within the time and space limits authorized by the employment; (2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and (3) whether the act is of a kind which the employee was hired to perform.

Chesterman v. Barmon, 305 Or 439, 442, 753 P2d 404 (1988); Stanfield v. Laccoarce, 284 Or 651, 655, 588 P2d 1271 (1978); Gossett v. Simon-son, 243 Or 16, 24, 411 P2d 277 (1966). A battery would readily fall within these requirements for employees such as police officers, some private security officers, and loss prevention officers.

When the use of force is not a part of the employee's duty, generally the employer is not liable for the employee's willful and malicious acts committed outside the scope of employment, even though the acts in question are committed during employment and even though the employment furnishes the opportunity for the wrongdoing. Barry v. Oregon Trunk Ry., 197 Or 246, 257, 253 P2d 260 (1953). In Barry, the defendant railroad's employee hit the plaintiff with a shovel after the parties had quarreled about the plaintiff's use of a fire to burn debris on the railroad's property line. Barry, 197 Or at 263. While it was the employee's duty to prevent fires on railroad property, the court noted that the employee was not attempting to prevent the plaintiff from starting or adding to a fire, to get the plaintiff's assistance in putting out the fire, or to remove the plaintiff from the premises, and the words exchanged immediately before the battery pertained to the plaintiff's use of his own property. The fire only furnished a topic for argument, no different from an argument about politics or the weather. Barry, 197 Or at 264. The battery did not arise out of the employee's performance of his duties to the railroad; it was an act caused by a spirit of personal animosity. Barry, 197 Or at 264. Similarly, an apartment owner was not liable for the apartment manager's sexual harassment of his assistants when there was no evidence that the manager was engaging in conduct in any way intended to serve his employer. Vinsonhaler v. Quantum Residential Corp., 189 Or App 1, 6, 73 P3d 930 (2003). In contrast, where a parking lot attendant attempting to enforce parking rules frequently quarreled with a tenant, and one quarrel escalated into a fight in which the attendant stabbed and killed the tenant, the court held that the battery was the culmination of a series of actions performed within the scope of employment. Bray v. American Property Management Corp., 164 Or App 134, 141, 988 P2d 933 (1999).

If part of the employee's job included cultivating the trust of clients, and that trust enabled the employee to sexually assault or batter the client, the employer will be liable for battery. Consequently, plaintiffs have sufficiently alleged respondeat superior claims by alleging that a priest acted to serve the archdiocese when he cultivated a relationship of trust with the plaintiff that led to the abusive conduct, Fearing v. Bucher, 328 Or 367, 977 P2d 1163 (1999), and by alleging a Boy Scout leader cultivated a relationship of trust with the plaintiff Boy Scout and his family that resulted in abuse, Lourim v. Swensen, 328 Or 380, 977 P2d 1157 (1999). The Fearing court explained, "[A] jury could infer that the sexual assaults were the culmination of a progressive series of actions that began with and continued to involve [the employee's] performance of the ordinary and authorized duties of a priest." Fearing, 328 Or at 375.

In Schmidt v. Archdiocese of Portland in Oregon, 218 Or App 661, 665, 180 P3d 160 (2008), overruled on other grounds, Schmidt v. Mt. Angel Abbey, 347 Or 389 (2009), the plaintiff sued the archdiocese based on respondeat superior for the conduct of a priest who picked him up and took him into the church after he fell while roller-skating and skinned his knees at age seven or eight, and then committed a sexual battery on the plaintiff. The court noted that the priest had not cultivated a relationship of trust with the plaintiff—they had not previously met—nor was there any evidence that helping fallen children was within the priest's employment duties. Therefore the archdiocese was not liable for the sexual battery. Schmidt, 218 Or App at 694-696.

When an assault or battery by an employee occurs at a different time and place from the employment, it is not enough that the assault or battery was a culmination of employment related conduct. Minnis v. Oregon Mutual Ins. Co., 334 Or 191, 204, 48 P3d 137 (2002) (employer not liable for sexual battery of employee by manager of restaurant at manager's apartment).

When an employee, who was also president of the company, took a drug that he intended to use to enable him to continue working, and the drug was among the causes of his sexual assault of the plaintiff at her home, the jury could find that taking the drug was within the scope of employment such that the company would be liable for battery under respondeat superior. Chesterman v. Barmon, 305 Or 439, 443-444, 753 P2d 404 (1988).

ORS 30.265(3) provides that "[t]he sole cause of action for a tort committed by officers, employees or agents of a public body acting within the scope of their employment . . . is an action against the public body." When there are disputed facts as to whether a battery was committed within the course and scope of employment, the plaintiff can plead claims in the alternative against both the public body and the individual. Beyer v. Baker Sch. Dist. 5J, No. 03-714-JE, 2005 WL 351936 (D Or 2005).

The Oregon Supreme Court has declined to extend the doctrine of respondeat superior to hold a hospital strictly liable for the sexual battery of an unconscious patient by a hospital employee. G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 61, 757 P2d 1347 (1988). The court rejected the plaintiff's argument that although there was no employment related rationale for the battery, public policy considerations favored the imposition strict liability on a hospital for a battery by an employee when the employee's job provided the opportunity to commit the battery. G.L., 306 Or at 61.

§1.4-1(b) For Negligent Hiring and Retention

Even though an employer is not liable under respondeat superior for the intentional torts of an employee that are unrelated to the employee's duties, as explained in §1.4-1(a), the employer has a duty to invitees and other employees to avoid employment or retention of persons whom the employer knows or should know are likely, due to their character, to assault or batter persons they are likely to come in contact with in the workplace. Hansen v. Cohen, 203 Or 157, 160, 278 P2d 898 (1955). This type of liability is a subset of the general liability of a party for negligently failing to prevent a foreseeable assault or battery by another when a special relationship exists, discussed in §1.4-2.

When an employer knew that an employee had a reputation for being "ornery," quarrelsome, a rough talker, and a bully, but the employee had not previously threatened or attacked anyone, the employer was not liable for his battery of another employee. Kelley v. Oregon Shipbuilding Corp., 183 Or 1, 8, 189 P2d 105 (1948).

When an employer knew the information about an employee listed below, the employer was liable for the employee's murder of his former girlfriend in the workplace. Panpat v. Owens-Brockway Glass Container, Inc., 188 Or App 384, 395, 71 P3d 553 (2003). This was true even though the victim of the murder knew most or all of the same information and was apparently not afraid of the assailant. Panpat, 188 Or App at 395 n 8. The employer was aware of the following:

(1) that the employee had previously been diagnosed with an explosive disorder in conjunction with the breakup of a romantic relationship with the victim, a co-employee;

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