The estate of an elderly, incapacitated woman who was sexually assaulted by a nursing assistant in an alleged case of nursing home abuse will have to take its case back to trial after a state supreme court reversed a $1.7 million award for damages and ordered the case retried.
Central to the decision to retry the case was the fact the trial court removed the question of whether the nursing home aide who reportedly raped the woman was acting in the course and scope of employment.
As Broward nursing home injury attorneys can explain, skilled nursing facilities can be held vicariously liable for the negligence and even intentional misconduct/criminal acts of employees – but only if they were acting in the course and scope of employment. This is known as the doctrine of respondeat superior, Latin for “let the master answer.”
In many cases wherein a plaintiff seeks to hold a company accountable for damages inflicted by a worker, key issues will include:
- Whether the worker was an employee or an independent contractor (respondeat superior doesn’t apply where the worker is an independent contractor);
- Whether the worker’s actions occurred in the course and/or arose from the scope of his/her employment.
Employers can also be held directly liable under theories like negligent hiring, negligent retention and negligent supervision.
Retrial on Nursing Home Abuse Lawsuit
The evidence did show that the nursing assistant had sexually assaulted the decedent. The case was brought on behalf of her estate, and plaintiff attorneys posited that the nursing assistant was an employee of the facility and thus it could be concluded he was acting in the course and scope of employment.
At a pre-trial hearing, a supervisor at the nursing home spelled out a number of regulations the nursing home has to prevent incidents like this. Plaintiff argued the fact that the nursing assistant didn’t follow nursing home regulation wasn’t proof enough that the aide wasn’t acting in the course and scope of employment, and trial court agreed.
The case went to trial. During jury deliberations, jurors asked whether an employer was as equally liable as an employee who committed a criminal act. The court referred jurors to the jury instructions, which didn’t give any explanation of the course and scope of employment standard. Plaintiff sought to recover $2.3 million, but jurors ultimately awarded $1.75 million.
On appeal, defendant argued that the issue of whether the aide was acting in the course and scope of employment wasn’t the court’s to decide. That should have been up to the jury. The Virginia Supreme Court agreed to review the dispute, and sided with the defense, noting the only stated reason the trial court gave for deciding the conduct in question occurred in the course and scope of employment were the allegations made in the complaint.
In remanding the case for retrial, the high court noted the first principle of respondeat superior is that vicarious liability can be imposed on an employer when the service itself in which the tortious act was carried out was within the ordinary course of an employer’s business. This is referred to as the job-related-service principle. Although it’s true vicarious liability isn’t limited to those acts of a servant that promote an employer’s objective, it’s also true that vicarious liability can’t be imposed if the tort didn’t arise out of the very transaction, service or task that employee was paid to perform.
Previous courts have held that the job-related-services test means that but for the employee’s wrongful act, the service would otherwise have been authorized by the scope of employment.
In other words, if this act occurred while the aide was changing a dressing, the employer might be vicariously liable. But if the employee specifically went in that room to commit assault, not performing any job duties, it’s possible the nursing home would not be held vicariously liable.
In the case of the latter, the nursing home could potentially still be held responsible for direct negligence on other grounds, but not vicariously liable.
If you suspect a loved one has been a victim of nursing home abuse in South Florida, we can help determine whether you have a case, which defendants may be liable and on which legal theories.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Responsibility for the acts of others, July 2010, BUMC Proceedings Journal