Graves v North Eastern Servs. 345 P .2d 619 (Utah 2015)

170 Chapter GRAVES V. NORTH EASTERN SERVS. 345 P.3d 619 (Utah 2015) Opinion interact with children, on the rationale that JUSTICE LEE, opinion of the Court: such interactions may be beneficial to the This is an interlocutory appeal from the residents. denial of a defense motion for summary The sexual assault on A.R. occurred in judgment. Plaintiffs alleged negligence in th a duplex referred to by NES as "Res 7." The hiring, training, and supervision of defen- Res 7 duplex was in Logan, in a complex sur- dants' employees resulting in the sexual rounding a central parking lot and play area. assault of A.R. (a mi or child) by defendants' According to the record on sum employee Matthew Cooper. The assault took ment, the main door to Res 7 was often left place in a home occupied by disabled indi- open during the summer, allowing children to viduals who were living under defendants' come in or out as they pleased. care. Defendants moved for summary judg There was also evidence of certain features ment on the grounds that they owed no duty that may have attracted children to approach of care to A.R. and that plaintiffs had failed and enter Res 7. For one thing, one of the resi- to establish a standard of care through expert dents of Res 7 was known for having candy on testimony. In a subsequent motion, defen- hand in his room. When neighborhood children dants also asserted that in any event they asked about candy, NES staff would sometimes were entitled to apportion liability to their retrieve it for them from that client's room. employee under the comparative fault pro- Alternatively, he or the staff would sometimes visions of Utah Code section 78B-5-818. The invite the children into Res 7 to find the candy. district court denied defendants' motions, The record also indicated that NES staff and we granted their petition for interlocu had maintained a portable swimming pool tory appeal. outside the open door to Res 7. The prin- We affirm in part and reverse in part. First, cipal purpose of the pool was for the benefit we affirm the decision holding that defendants of the other resident of Res 7 (a second NES owed a duty to A.R. to exercise reasonable care client whose action plan required NES moni- in the hiring, training, and supervision of their toring "at all times" when near children). The employees. We do so on the basis of a special second client used the pool to soak his feet. relationship that we find to have been estab- Neighborhood children often used it to play in lished under the terms of the Restatement during the summer. (Second) of Torts section 317. The other attraction in Res 7 was a televi- Defendants North Eastern Services- sion. According to the record, neighborhood Lakeside, Inc. and North Eastern Services, Inc. children often entered the residence to watch (NES) provide services for individuals with television or videos with the residents and/or mental and physical disabilities. NES's services NES staff. are provided under contracts with the State of A.R. was sexually abused by NES employee Utah, monitored by the State Department of Cooper on July 18, 2008. On that day A.R. was Human Services. NES employees provide var- playing in the common area outside of Res 7. ious levels of supervision, depending on the asked for some candy, and was invited into needs of the client as determined by the cli- the residence to watch television with Cooper ent's "action plan." and one of the residents. Cooper eventually Some NES homes are in residential neigh- escorted A.R. into the bathroom, where he borhoods. Typically such homes are occupied sexually assaulted her. by three or fewer residents. Some of NES's Cooper was under the supervision of NES action plans include goals for residents to employee Amber Brady at the time of the 171 assault. Brady testified that she had a "bad feel- action on her behalf in the First District ing" when she saw Cooper show A.R. where Court. Initially the complaint asserted claims the bathroom was, but proceeded with clean- only against Cooper. Plaintiffs subsequently ing and vacuuming instead of intervening. amended the complaint to add claims against She also indicated that when she went to put the NES defendants, including claims for neg- the vacuum away she saw Cooper and A.R. ligence in hiring, training, and supervising its exiting the bathroom and "had such an awful employees. feeling" when she noticed that A.R. had a "red NES eventually filed a motion for sum- face" and appeared to have been crying. At mary judgment. The motion asserted two that point Brady asked A.R. what was wrong. grounds for dismissal of plaintiffs' claims for A.R. responded inaudibly, and Cooper then negligence: (a) that NES owed no duty to A. R., answered for her, indicating that she "missed a guest in the home of NES's clients, in its hir- her home and wanted to go home." ing, training, and supervision of employees; Brady then called her supervisor and ulti- and (b) that plaintiffs had failed to establish mately the police. Cooper was arrested and a standard of care through expert testimony, charged with aggravated sexual abuse of a thereby leaving the jury to speculate as to what child. He subsequently entered a guilty plea, NES was reasonably required to do under the and is now serving a sentence of fifteen years circumstances of the case. to life in prison. oon after the filing of the NES motion, NES's actions in hiring and supervis- plaintiffs sought voluntary dismissal of their ing Cooper were of central concern on sum- claims against Cooper. NES filed a notice mary judgment. The evidence established that asserting its intention to seek apportionment Michelle Grajeda was the person responsible of comparative fault of Cooper under Utah for interviewing Cooper and checking his ref- Code section 78B-5-818. erences. Yet although Cooper had been termi- We affirm the denial of NES's motion nated from a recent job in the same field for for summary judgment, concluding that NES sexually abusive duct, Grajeda apparently owed a duty to A.R. and that plaintiffs had no never asked about his previous employment, obligation to present expert testimony in sup indicating that she had never been trained to port of a standard of care. ask such questions. As for checking references, Grajeda testified that she had no memory of A. Duty calling Cooper's previous employer(s), but We recently clarified and extended the para- believes that she would have done so per her digm for analyzing questions of duty in tort in our opinion in B.R. ex rel. Jeffs v. West, 2012 sented evidence that Cooper's prior employer, UT 11, 275 P.3d 228. In that case we reaf- Lindon Care, had terminated Cooper for sex- firmed the core tort-law distinction between ually abusive actions again ent, had con- misfeasance (active misconduct) and nonfea- cluded that Cooper was not qualified to work sance (omissions). Specifically, we noted that in the field, and alleged that it had "no record of we all generally have a duty of due care in the any phone calls received from any representa- performance of our affirmative acts, but that a tive of [NES] regarding Mr. Cooper's employ- duty regarding nonfeasance typically inheres ment with Lindon Care." As for training, the only in "special legal relationships." summary judgment record indicated that Brady Thus, a key threshold question regarding had not received training on children in NES duty is whether the plaintiff's harm is alleged omes or on how to keep children safe. to have been caused by (a) an affirmative act of Plaintiffs Rachel Graves and Dustin the defendant or (b) an act of a third party that Russell, A.R.'s parents, filed this negligence the defendant failed to prevent. In the former 172 Chapter case a tort-law duty is the general rule. But in identifiable, we held that the "hospital owed the latter case the general rule is the contrary. no duty." A person generally has "no duty to control the The parties in this case have staked out conduct of third persons." Higgins v. Salt Lake contrary positions under the above framework. City., 855 P.2d 231, 236 (Utah 1993). This Because the assault on A.R. was perpetrated by a general rule, of course, is subject to a signifi- third party (Cooper), NES frames the case as one cant exception-under the above-noted "spe- involving only its nonfeasance-in not under- cial relationship" principle. taking acts (supervision, training, and employ. In explaining these principles in Rollins, ment background checks) to prevent the assault. we "acknowledge[d] the general applicabil- And because the assault was outside the scope of ity in Utah of the 'special relation' analysis Cooper's employment, NES insists that it bears described in sections 314 through 320 of the no responsibility for the ts employee. Restatement of Torts." The issue in Rollins was Plaintiffs frame the case quite differently. whether a secure mental health facility owed They first portray NES's responsibility in a duty to prevent a patient from leaving the terms of affirmative acts of misfeasance, not- facility and causing a car accident. In decline ing that NES affirmatively enticed children ing to find such a duty, we first invoked the like A.R. into Res 7, in a manner leading to the standard set forth in ction 315 of the sec- assault. Alternatively, plaintiffs contend that ond Restatement-that there is no duty so to this case does involve a special relationship- control the conduct of a third person to pre- arising under the Restatement (Second) of vent him [or her] from sing physical harm Torts section 317. That section of the restate- to another unless (a) a special relation exists ment provides as follows: between the actor and the third person which imposes a duty upon the actor to control the A master is under a duty to third person's conduct, or (b) a special relation able care so to control his servant while act- exists between the actor and the other which ing outside the scope of his employment as gives to the other a right to protection. to prevent him from intentionally harming Next, we noted that the "two excep others or from so conducting himself as to tions" set forth in section 315 "are given more create an unreasonable risk of bodily harm detailed explanation" in subsequent sections to them, if Id. at 1159, Of particular relevance in Rollins a. the servant was section 319, which provides that "one who 1. is upon the premises in possession of hifi. takes charge of a third person whom he knows the master or upon which the servant or should know to be lil act e bodily s privileged to enter only as his ser- harm to others if not controlled is under a duty vant, or uph to exercise reasonable care to control the third 2 is using a chattel of the master, and person to prevent him from doing such harm." the master get fort Our holding in Rollins was to decline to 1. knows or has reason to know that he find a special relationship between the mental has the ability to control his servant. of th teley173 plaintiffs' basis for a special relationship. Thus, we must proceed to consider the question we conclude that the essence of plaintiffs' whether there is a special relationship here claim is in asserting the unreasonableness of sustaining such a duty. NES's failure to prevent the assault perpetrated by a third party, but we adopt the principle set 2. Restatement (Second) Section 317 forth in section 317 of the second restatement NES questions the basis for any such rela- and find its standards satisfied here. tionship here by asserting that Cooper's sex- ual assault on A.R. was outside the scope of . Misfeasance/Nonfeasance his employment. NES asserts that an "unpro- As plaintiffs have noted, their claims implicate voked, highly unusual, and quite outrageous" some affirmative acts attributable to NES-in act undertaken for "purely personal motives" enticing children like A.R. into Res 7 by keep- is beyond the scope of employment. And on ing the door open, maintaining a portable that basis NES insists that it "had no spe- swimming pool outside, and offering candy cial relationship to A.R. who was harmed by and television inside. And those acts are plau- the independent conduct of NES's employee sibly connected to the assault on A.R. Thus, Cooper when he criminally acted outside the to the extent plaintiffs are complaining about scope of his employment." these affirmative acts, NES would have a duty NES's argument misses a key distinct to perform them in a non-negligent, reason- tion between vicarious and direct liability. able manner. The scope of employment question concerns That is ultimately an inadequate basis for a principle of agency law, of relevance to the a finding of duty here, however. The crux of question of an employer's vicarious liabil plaintiffs' case is not that NES was uncareful in ity. But the question presented here is one of the way it placed the portable swimming pool, direct liability-of whether NES can be liable or in the manner in which it offered candy or directly (for its own negligence) for harm to television programming. Instead, plaintiffs' a guest resulting from negligence in hiring, core complaint is with NES's omissions or training, or supervision. failures-in not performing an employment The answer to that question depends on background check on Cooper, and in not pro- whether there is a basis for finding a special viding training and supervision for Brady and relationship sustaining a duty in the circum- Cooper. Those omissions, moreover, were sig- stances of this case. We find such a basis in nificant in their failure to prevent a tortious the principle set forth in section 317 of the act of a third party (Cooper). So a decision Restatement (Second) of Torts. Our caselaw upholding a duty by NES to perform its affir has not previously endorsed this standard mative acts in a reasonable manner would not directly. But we have cited favorably to the get the plaintiffs very far. It would leave room 'special relationship" principles in "sections for them to charge negligence in the placement 314 through 320 of the Restatement of Torts." of the swimming pool or in offering candy or Rollins, 813 P.2d at 1159. And we find the television, but not to assert their core claim for standard in section 317 eminently reasonable, negligent hiring, training, and supervision. while noting that it has been widely endorsed NES's affirmative acts are a basis for throughout the United States and rarely, if imposing a duty in the performance of those ever, criticized. acts, not for a broader duty to undertake addi- Section 317 recognizes a "special relation- tional measures aimed at preventing the sexual ship" basis for a duty of an employer to exer- assault by a third party. And because plaintiffs' cise reasonable care in preventing an employee claims seem aimed at NES's failures (as regards from acting outside the scope of employment training, supervision, and employment back- in "intentionally harming others." NES chal- ground checks), and not its affirmative acts, lenges the wisdom of a duty that it views as 174 Chapter 5 Duty fundamentally altering the "employment land- Because we conclude that our legislature scape in Utah," in a manner opening up "liabil has spoken on this issue, we defer to its judg ity never before anticipated," turning "theories ment and enforce its decision as we understand of scope of employment and respondeat supe- it. And we do so not based on any abstract This rior .. . on their heads." Specifically, NES ques- notion of purpose or intent but based on the dant tions the prudence of a principle that would legislature's actual product-the statutory text. Such We highlight the above concerns, however, tiff's render employers insurers against criminal because the statutory question before us is dif- as a activity perpetrated on their premises, warn- ing that under this standard "every employer ficult, and we deem the matter sufficiently sig- who runs a business that ever has children nificant that it might merit further attention in present" would face liability whenever "an the legislature. employee harms those kids, regardless of how John J independent or intentional the action is." Questions about the case: Plaint For the most part, NES's opposition is mis- taken and misdirected-aimed at a strawman, 1. What is the theory that the plaintiffs and not at the section 317 standard that we offer that NES owed a duty to their VS. adopt today. First, as already noted, the duty at underage child? stake under section 317 sounds in direct-not 2. What specific acts of negligence did Mary vicarious-liability. So the standard we adopt the plaintiffs allege against NES? Defend makes no employer an insurer and in no way 3. The plaintiffs rely on the theory of undercuts the vicarious liability principle of "special relationship" to establish duty. respondeat superior. This is about an employ- Why did this court find that there De er's duty with respect to its own negligence, was a special relationship in this case, 12 (b) , not it's secondary liability for someone else's. which involved a third party, while a grounds Plaintiffs' position, while falling short different court did not find a special be grant under the governing text of the statute, is not relationship between businesses that (a) without some basis in public policy. Thus, in had a 24-year history together (the prerequi cases involving a duty to supervise or train previous Relevant Case)? employees in a manner that would mitigate the 4. Explain the court's distinction between This the possibility of an intentional tort by another, malfeasance and nonfeasance. we recognize that it may seem "unfair to allow 5. How does NES counter the plaintiffs' Respectf [a defendant's] liability to a faultless, injured argument by holding that Cooper's By: plaintiff to be reduced or even eliminated by actions do not fall within the mas- the culpability of an intentional wrongdoer." ter-servant relationship and therefore Attorney Field, 952 P.2d at 1088. it should not be liable for his actions? This is to the abov