Date: 05-24-2005

Case Style: Lowell and Stella Baker, as Parents and next friends of Summer Baker, a minor, v. Saint Francis Hospital

Case Number: 2005 OK 36

Judge: Winchester

Court: Supreme Court of Oklahoma on appeal from the District Court of Tulsa County

Plaintiff's Attorney:

John F. McCormick, Jr., John L. Randolph, Jr., Harry A. Parrish, PRAY, WALKER, JACKMAN, WILLIAMSON & MARLAR, Tulsa, Oklahoma, for appellants.

Defendant's Attorney:

Timothy G. Best, Sean H. McKee, Matthew B. Free, BEST & SHARP, Tulsa, Oklahoma, for appellee.

Description:

1 The question before this Court is whether the trial court erred in granting summary judgment to the appellee, Saint Francis Hospital, d/b/a Ave Maria Child Care. We find the trial court erred and reverse and remand for a hearing on the merits.

I. FACTS AND PROCEDURE

2 The parties have agreed on the following facts. Ave Maria Child Care is a daycare facility that cares for children of employees of Saint Francis Hospital and its affiliates. The appellant, Stella Baker, was an employee of Laureate Psychiatric Clinic and Hospital, an affiliate of Saint Francis Hospital. On September 6, 1998, Amy Davis was employed at the daycare facility as a caregiver when Stella Baker left her two-month-old daughter, Summer, there. About 3:30 p.m., when Mrs. Baker arrived to pick up Summer, she heard her crying and noticed two small red marks on her right temple. Davis was Summer's regular caregiver at Ave Maria, and when Mrs. Baker inquired about the marks, Davis denied knowing how Summer received them.

3 A few hours later, when bathing Summer at home, Mrs. Baker noticed the right side of Summer's head was swelling. She called her pediatrician's office and was told to take her to the emergency room at St. Francis Hospital. The physicians there determined that Summer had two bilateral depressed skull fractures and suffered traumatic brain injury.

4 The appellants allege that Davis allowed Summer to fall from her crib while changing a diaper. The parties agree that Davis intentionally struck Summer's head two times against the corner of a shelf at the daycare facility. The record includes a copy of the Findings of Fact and Acceptance of Plea dated and file-stamped September 14, 1999, showing that Davis pled guilty to injury to a minor child. She received a sentence according to a plea agreement of ten years, seven in custody and the remaining three out of custody. On that document Davis claims to have hit Summer's head against the shelf because Summer would not stop crying.

5 The Bakers sued Saint Francis Hospital alleging it was liable under the theory of respondeat superior for Davis's negligent and intentional acts. Both parties filed motions for summary judgment. The trial court denied the Bakers' motion and granted the hospital's. On appeal, the Court of Civil Appeals affirmed. We granted certiorari.

II. REVIEW OF SUMMARY PROCEEDINGS

6 Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Coop. Ass'n, 1984 OK 72, 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, 3, 867 P.2d 463, 464. Because an order that grants summary relief disposes of legal issues, the review we conduct on appeal is de novo. Brown v. Nicholson, 1997 OK 32, 5 n.1; 935 P.2d 319, 321 n. 1; Manley v. Brown, 1999 OK 79, 22, n.30; 989 P.2d 448, 456 n.30. We must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact. Wabaunsee v. Harris, 1980 OK 52, 9; 610 P.2d 782, 785; Perry v. Green, 1970 OK 70, 2, 468 P.2d 483, 484. From the underlying facts contained in such materials, all inferences and conclusions to be drawn must be viewed in a light most favorable to the party opposing the motion. Ross v. City of Shawnee, 1984 OK 43, 7, 683 P.2d 535, 536.

III. NEGLIGENCE

7 The appellants allege that Davis allowed Summer to roll off the crib onto the floor, which contributed to her injuries. The appellee asserts it is an uncontested fact that Summer's injuries could not have been caused by the fall described by the appellants. The appellee entered portions of a physician's deposition where he testified about the injuries likely from a fall. In response to the question: "Can you say to a hundred percent certainty, Doctor, that these fractures weren't caused by a fall?" the doctor responded, "I think without being there, nobody could say that with a hundred percent certainty." The doctor stated he believed that blows to the head were the plausible explanation for Summer's fractures rather than a fall from a crib.

8 The injuries to Summer did not include just the fractures but also traumatic brain injury. In exhibit A of "Defendant's Motion for Summary Judgment," offered by the appellee, the doctor's answers address the cause of the fractures, not the cause of the brain injury. The appellants' allegation is that "Summer suffered traumatic brain injury as a result of either, or both, the fall and having her head struck against the shelf." Since all inferences and conclusions to be drawn must be viewed in a light most favorable to the party opposing the motion, in this case the appellants, the issue remains in controversy; therefore, summary judgment on this issue is improper. Ross, 1984 OK 43, 7, 683 P.2d at 536.

IV. RESPONDEAT SUPERIOR LIABILITY FOR BATTERY

9 Davis intentionally struck Summer's head against a shelf at the daycare facility. The issue is whether her employer, the appellee, may be held liable in damages for this intentional wrongful act.

10 To hold an employer responsible for the tort of an employee, the tortious act must be committed in the course of the employment and within the scope of the employee's authority. Hill v. McQueen, 1951 OK 47, 3, 4, 230 P.2d 483, 484-485. As a general rule, an assault on a third person is not within the scope of an employee's authority. Rodebush v. Oklahoma Nursing Homes, 1993 OK 160, 12, 867 P.2d 1241, 1245. The exception to the general rule is well established. An employer may be held responsible for the tort committed by the employee where the act is incidental to and done in furtherance of the business of the employer even though the servant or agent acted in excess of the authority or willfully or maliciously committed the wrongs. Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, 31, 21 P.2d 1, 7, citing Mansfield v. Wm. J. Burns Detective Agency, 171 P. 625 (Kan. 1918). This is not to say that the commission of the tort was within the scope of the employee's authority, for no authority for such commission could be conferred, but where the employee was acting within the scope of authority to do the particular thing rightfully that was subsequently done in a wrongful manner. Ada-Konawa, 1932 OK 790, 32, 21 P.2d at 7, citing Dixon v. Northern Pac. R. Co., 37 Wash. 310, 79 P. 943 (1905). Rodebush summarized the exception to the general rule as applying where the act is "fairly and naturally incident to the business," and is done "while the servant was engaged upon the master's business and be done, although mistakenly or ill advisedly, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business." Rodebush, 1993 OK 160, 12, 867 P.2d at 1245, citing Russell-Locke Super-Service v. Vaughn, 1935 OK 90, 18, 40 P.2d 1090,1094, and Ada-Konawa, 1932 OK 790, 33, 21 P.2d at 7. Rodebush added that: "An employee's act is within the scope of employment if it is incident to some service being performed for the employer or arises out of an emotional response to actions being taken for the employer." Rodebush, 1993 OK 160, 12, 867 P.2d at 1245.

11 The appellee asserts, "It is self-evident that the act of smashing a child's head against a shelf does not accomplish the assigned work of caring for, protecting, and nurturing." Appellee's Answer to Appellant's Petition for Certiorari, p. 4. That mischaracterizes the law concerning liability of an employer for the tort of an employee. Where an employee of a daycare center is responsible for the care of an infant, the loss of temper over a crying baby and subsequent intentional injury to the infant is "an emotional response to actions being taken for the employer,"1 and attempting to quiet a crying child is a rightful thing that Davis did "in a wrongful manner."2

12 Oklahoma case law provides examples of cases involving torts for which the employer was held liable and those in which the employer was not held liable. Early in statehood the Court held that a railroad company was liable for the actions of the train auditor, who falsely imprisoned a passenger arising out of a controversy over the payment of a fare. The Court stated the general rule that a corporation, like an individual, is liable for any tort committed by its agent in the course of his employment, "even though the act is done wantonly and recklessly, or was against the express orders of the company." Chicago R. I. & P. Ry. Co. v. Radford, 1913 OK 7, 4, 129 P. 834, 837. Other cases holding the employer liable for the tort of the employee include: Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, 21 P.2d 1 (the servant of the toll bridge company shot an automobile driver when he drove past the toll gate and failed to pay the toll); Russell-Locke Super-Service v. Vaughn, 1935 OK 90, 40 P.2d 1090 (the servant of a corporation selling and servicing automobile batteries injured the plaintiff in a fight after the servant tried to repossess a battery from the plaintiff's vehicle); Mistletoe Express Service v. Culp, 1959 OK 250, 353 P.2d 9 (the servant for a common carrier of freight assaulted the plaintiff when he refused to accept a television tube after the common carrier denied the plaintiff's claim for damage in transit); and Rodebush v. Oklahoma Nursing Homes, 1993 OK 160, 867 P.2d 1241 (the employee of a nursing home forcefully slapped a combative male Alzheimer's patient while bathing the patient).

13 Cases holding the employer was not liable for the tort of the employee include: Hill v. McQueen, 1951 OK 47, 230 P.2d 483 (the manager of a seed company assaulted a former independent sales contractor after the two got into an argument over a disputed debt); Oklahoma Ry. Co. v. Sandford, 1953 OK 394, 258 P.2d 604 (bus driver for bus company left his bus parked and assaulted the driver of an automobile and held him for arrest after the bus driver concluded he was drunk); Tulsa General Drivers, Warehousemen, and Helpers Union, Local No. 523 v. Conley, 1955 OK 277, 288 P.2d 750 (the agent of the union was picketing a business but left to follow the plaintiff four and one-half blocks to beat him with a board studded with nails, because he had crossed the picket line); Allison v. Gilmore, Gardner & Kirk, 1960 OK 48, 350 P.2d 287 (a gasoline truck driver was employed by the defendant to drive a truck and deliver gasoline, and while fulfilling those duties, assaulted the plaintiff who was climbing on the gasoline truck); and N. H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592 (a Presbyterian minister molested minors, including the plaintiff, during recreational activities aimed at recruiting new members and their families).

14 The Court in N. H. v. Presbyterian Church (U.S.A.) distinguished the facts in that case from those in Rodebush. The Court observed that the attendant who was bathing the Alzheimer patient acted impulsively when he slapped the combative patient, but that the impulse naturally arose from the situation he had been placed in by the employer, which was to complete the patient's bath. N. H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 15, 16, 998 P.2d at 599. But the minister acted for his own personal gratification rather than for any religious purpose. N. H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 18, 998 P.2d at 599.

15 In the Hill3 case, the Court distinguished it from the Ada-Konawa Bridge4 and Radford5 cases. It was the employee's duty to obtain payment of the toll, in Ada-Konawa Bridge, and the train fare in Radford. The employee was to withhold the enjoyment of the right or privilege, if payment was not obtained. Since successful performance involved some type of immediate action in opposition to the will of the other, the employer could have anticipated the wrongful acts taken. Hill, 1951 OK 47, 7, 230 P.2d at 485. In contrast, the Court held that McQueen's assault on Hill could not be properly contemplated as an incident to the exercise of ordinary authority to collect indebtedness. Hill, 1951 OK 47, 8, 230 P.2d at 485.

CONCLUSION

16 We hold that the assault of the appellee's employee on Summer was within the scope of the employment. The employee's loss of temper over a crying baby and subsequent intentional injury to the infant was an emotional response to actions being taken for the employer. The attempt to quiet a crying child was a rightful thing that Davis did in a wrongful manner. In addition, the appellee could anticipate that an infant's continuous crying may result in the child's daycare worker losing her temper and battering the child. The issue regarding any injury resulting from a fall remains in controversy and summary judgment on it was improper. Accordingly, the judgment of the trial court is reversed and the cause is remanded.

* * *

Outcome: Reversed

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None