Donna Mitchell v. Seaborne Hospital CV-97-182-B 03/01/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Donna Mitchell
v. Civil No. 97-182-B
Seaborne Hospital, Inc. and Guv Frigon
MEMORANDUM AND ORDER
Donna Mitchell has sued the Seaborne Hospital and its former
employee, Guy Frigon, in a four-count complaint to recover
damages for injuries she suffered when Frigon allegedly raped
her. Count I asserts that Seaborne Hospital is liable because it
negligently hired and supervised Frigon. Count II alleges that
Seaborne is liable under the state's Consumer Protection Act
because it improperly represented that Frigon was a certified
counselor. Count III alleges that Frigon is liable for negli
gently failing to maintain a professional relationship with
Mitchell which, in turn, led to the rape itself. Both Counts III
and IV also allege that Seaborne is vicariously liable for
Frigon's misconduct. Seaborne has filed a motion for summary
judgment attacking Mitchell's vicarious liability claims. For
the reasons that follow, I grant defendant's motion. I. BACKGROUND
Mitchell entered an in-patient alcohol addiction treatment
program at Seaborne on June 17, 1996. She remained there until
July 15, 1996, when she was discharged.
Seaborne hired Frigon as a "Counselor I " about three months
before Mitchell was admitted. Counselor I is an entry-level
training position that reguires a trainee to undergo a probation
period under the direction of more experienced counselors.
Frigon was hired by Seaborne to perform Native American cere
monies with patients. Conseguently, he had more individual
contact with patients than was typical of other persons who were
employed by Seaborne at the Counselor I position.
Mitchell attended several Native American ceremonies
performed by Frigon including a drumming ceremony, a talking
ceremony and a "sweat lodge." Frigon had access to Mitchell's
medical records and he also attended staff meetings where her
treatment plan was discussed. Frigon paid special attention to
Mitchell while she was at Seaborne. He gave her poems and other
small gifts and Seaborne's records reflect that she worked with
Frigon on "spirituality and forgiveness." Mitchell alleges that
these contacts were designed by Frigon to groom Mitchell for a
sexual relationship after she left the hospital. Approximately two days after Mitchell left Seaborne, Frigon
obtained her telephone number from Seaborne's records and
contacted her at her home in Laconia, New Hampshire. Frigon
later met with Mitchell at her apartment on two occasions where
they had consensual sexual relations. Frigon allegedly raped her
at a third meeting after she rejected his advances. An expert
witness retained by Mitchell has opined that: (1) Mitchell's
medical records contained confidential information concerning
prior rapes and incest that Frigon could have exploited in
targeting Mitchell; and (2) the Native American ceremonies that
Frigon conducted with Mitchell and the individual counseling he
provided her were therapeutically improper and made her
especially vulnerable to his later advances.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(c). The moving party bears the initial responsibility of
informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the
absence of a genuine issue of material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) . Once the moving party
makes this showing, the burden shifts to the non-moving party,
with respect to each issue on which it has the burden of proof to
demonstrate that a trier of fact reasonably could find in its
favor. See id. at 322-25. The non-moving party cannot rest upon
mere allegation or denial, but must set forth specific facts
showing that there is a genuine issue of material fact as to each
issue upon which it would bear the ultimate burden of proof at
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). I view all the facts in a light most favorable to
Mitchell, the non-moving party. See DeNovellis v. Shalala, 124
F .3d 298, 306 (1st Cir. 1997).
III. DISCUSSION
The guestion presented by Seaborne's motion for summary
judgment is whether a reasonable jury could hold it vicariously
liable for Frigon's actions. The answer to this guestion depends
upon whether Frigon's conduct could be deemed to be within the
scope of his employment under New Hampshire law. The New Hampshire Supreme Court has not determined when, if
ever, a therapist's sexual assault of a patient will support a
vicarious liability claim against the patient's employer. Courts
in other jurisdictions have reached differing conclusions on the
guestion. Compare Block v. Gomez, 549 N.W. 2d 783 (Wis. C t . Ap p .
1996), review dismissed, 555 N.W. 2d 128 (Wis. 1996) (drug
counselor who exploited treatment relationship to induce patient
to consent to sexual relations; no vicarious liability); P .S . and
R.S. v. Psychiatric Coverage, LTD., 887 S.W. 2d 622 (Mo. C t . App.
1994) (treatment relationship; no vicarious liability); and
Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989) (no
vicarious liability) with Doe v. Samaritan Counseling Center, 791
P.2d 344 (Alaska 1990) (vicarious liability possible); and
Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986)
(vicarious liability possible). Those courts that have
recognized vicarious liability claims in this context havetended
to emphasize that the employee's sexual assault arose from and
was made possible by his employment as a therapist. In contrast,
courts that have declined to recognize such claims have relied
primarily on the fact that the sexual assault was not motivated
by a desire to serve the employer. The New Hampshire Supreme Court has long focused its scope
of employment analysis on whether the employee intended to aid
his employer when he committed the acts on which the vicarious
liability claim is based. Accordingly, the court ordinarily has
recognized vicarious liability claims based on an employee's
intentional misconduct only if the evidence would permit a
finding that the employee acted in part to benefit his employer.
Compare Daigle v. Portsmouth, 129 N.H. 561, 580-58 (1987)
(vicarious liability claim allowed because jury could find that
assault committed by on-call police officer was motivated in part
by a purpose to serve employer); Richard v. Amoskeaq Mfg. Co., 7 9
N.H.
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Donna Mitchell v. Seaborne Hospital CV-97-182-B 03/01/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Donna Mitchell
v. Civil No. 97-182-B
Seaborne Hospital, Inc. and Guv Frigon
MEMORANDUM AND ORDER
Donna Mitchell has sued the Seaborne Hospital and its former
employee, Guy Frigon, in a four-count complaint to recover
damages for injuries she suffered when Frigon allegedly raped
her. Count I asserts that Seaborne Hospital is liable because it
negligently hired and supervised Frigon. Count II alleges that
Seaborne is liable under the state's Consumer Protection Act
because it improperly represented that Frigon was a certified
counselor. Count III alleges that Frigon is liable for negli
gently failing to maintain a professional relationship with
Mitchell which, in turn, led to the rape itself. Both Counts III
and IV also allege that Seaborne is vicariously liable for
Frigon's misconduct. Seaborne has filed a motion for summary
judgment attacking Mitchell's vicarious liability claims. For
the reasons that follow, I grant defendant's motion. I. BACKGROUND
Mitchell entered an in-patient alcohol addiction treatment
program at Seaborne on June 17, 1996. She remained there until
July 15, 1996, when she was discharged.
Seaborne hired Frigon as a "Counselor I " about three months
before Mitchell was admitted. Counselor I is an entry-level
training position that reguires a trainee to undergo a probation
period under the direction of more experienced counselors.
Frigon was hired by Seaborne to perform Native American cere
monies with patients. Conseguently, he had more individual
contact with patients than was typical of other persons who were
employed by Seaborne at the Counselor I position.
Mitchell attended several Native American ceremonies
performed by Frigon including a drumming ceremony, a talking
ceremony and a "sweat lodge." Frigon had access to Mitchell's
medical records and he also attended staff meetings where her
treatment plan was discussed. Frigon paid special attention to
Mitchell while she was at Seaborne. He gave her poems and other
small gifts and Seaborne's records reflect that she worked with
Frigon on "spirituality and forgiveness." Mitchell alleges that
these contacts were designed by Frigon to groom Mitchell for a
sexual relationship after she left the hospital. Approximately two days after Mitchell left Seaborne, Frigon
obtained her telephone number from Seaborne's records and
contacted her at her home in Laconia, New Hampshire. Frigon
later met with Mitchell at her apartment on two occasions where
they had consensual sexual relations. Frigon allegedly raped her
at a third meeting after she rejected his advances. An expert
witness retained by Mitchell has opined that: (1) Mitchell's
medical records contained confidential information concerning
prior rapes and incest that Frigon could have exploited in
targeting Mitchell; and (2) the Native American ceremonies that
Frigon conducted with Mitchell and the individual counseling he
provided her were therapeutically improper and made her
especially vulnerable to his later advances.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(c). The moving party bears the initial responsibility of
informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the
absence of a genuine issue of material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) . Once the moving party
makes this showing, the burden shifts to the non-moving party,
with respect to each issue on which it has the burden of proof to
demonstrate that a trier of fact reasonably could find in its
favor. See id. at 322-25. The non-moving party cannot rest upon
mere allegation or denial, but must set forth specific facts
showing that there is a genuine issue of material fact as to each
issue upon which it would bear the ultimate burden of proof at
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). I view all the facts in a light most favorable to
Mitchell, the non-moving party. See DeNovellis v. Shalala, 124
F .3d 298, 306 (1st Cir. 1997).
III. DISCUSSION
The guestion presented by Seaborne's motion for summary
judgment is whether a reasonable jury could hold it vicariously
liable for Frigon's actions. The answer to this guestion depends
upon whether Frigon's conduct could be deemed to be within the
scope of his employment under New Hampshire law. The New Hampshire Supreme Court has not determined when, if
ever, a therapist's sexual assault of a patient will support a
vicarious liability claim against the patient's employer. Courts
in other jurisdictions have reached differing conclusions on the
guestion. Compare Block v. Gomez, 549 N.W. 2d 783 (Wis. C t . Ap p .
1996), review dismissed, 555 N.W. 2d 128 (Wis. 1996) (drug
counselor who exploited treatment relationship to induce patient
to consent to sexual relations; no vicarious liability); P .S . and
R.S. v. Psychiatric Coverage, LTD., 887 S.W. 2d 622 (Mo. C t . App.
1994) (treatment relationship; no vicarious liability); and
Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989) (no
vicarious liability) with Doe v. Samaritan Counseling Center, 791
P.2d 344 (Alaska 1990) (vicarious liability possible); and
Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986)
(vicarious liability possible). Those courts that have
recognized vicarious liability claims in this context havetended
to emphasize that the employee's sexual assault arose from and
was made possible by his employment as a therapist. In contrast,
courts that have declined to recognize such claims have relied
primarily on the fact that the sexual assault was not motivated
by a desire to serve the employer. The New Hampshire Supreme Court has long focused its scope
of employment analysis on whether the employee intended to aid
his employer when he committed the acts on which the vicarious
liability claim is based. Accordingly, the court ordinarily has
recognized vicarious liability claims based on an employee's
intentional misconduct only if the evidence would permit a
finding that the employee acted in part to benefit his employer.
Compare Daigle v. Portsmouth, 129 N.H. 561, 580-58 (1987)
(vicarious liability claim allowed because jury could find that
assault committed by on-call police officer was motivated in part
by a purpose to serve employer); Richard v. Amoskeaq Mfg. Co., 7 9
N.H. 380 (1920) (assault committed by employee in an attempt to
enforce employer's work rules will support vicarious liability
claim); and Rowell v. Boston & Maine R.R. Co., 68 N.H. 358 (1895)
(vicarious liability claim arising from an assault allowed
because jury could find from the evidence that assault was
committed to further employer's business interests) with Dube v.
International Shoe Co., 94 N.H. 459 (1947) (assault committed by
co-employee not actionable where there was no evidence that
assault was committed to benefit employer); and Morin v. People's
Wet Wash Laundry Co., 85 N.H. 233 (1931) (assault by defendant's
driver on a competitor not within scope of employment). In Daigle, the New Hampshire Supreme Court's most recent treatment
of the issue, the court also endorsed the restrictive scope of
employment test described in the Restatement (Second) of Agency.
See 129 N.H. at 579. In addition to proof that the employee's
acts were motivated at least in part by a purpose to serve the
employer, the Restatement test also requires proof that: (1) the
employee's act was of a type that he was employed to perform;
(2) the act on which the claim was based occurred within
authorized time and space limits; and (3) if force was used
intentionally by the employee, the force was not anticipatable
by the employer. Restatement (Second) of Agency § 228(1) (1958).
Applying New Hampshire law to the present case, I conclude
that no jury could find that Frigon was acting within the scope
of his employment when he allegedly assaulted Mitchell. First,
Mitchell does not allege that Frigon was hired for the purpose of
developing sexual relationships with his patients. Second, the
record demonstrates that Frigon was pursuing his own desires
rather than his employer's interests when he allegedly assaulted
Mitchell. Finally, it is undisputed that the alleged assaults
occurred off premises, after Mitchell had finished her treatment
and at a time when Frigon was not on duty. Under these
circumstances, the mere fact that Frigon may have exploited his employment relationship to groom Mitchell for his later assaults
will not subject his employer to liability on a vicarious
liability theory.
The fact that Seaborne cannot be held vicariously liable for
Frigon's actions does not absolve it from liability. Mitchell
may still prevail against Seaborne if she can prove that it acted
negligently in hiring or supervising Frigon and that its
negligence was a substantial cause of her injuries. See Marguav
v. Eno, 139 N.H. 708 (1995). Defendant's motion for summary
judgment (document no. 11) is granted.
SO ORDERED.
Paul Barbadoro Chief Judge
March , 1999
cc: Steven Latici, Esg. John Friberg, Esg. James Shirley, Esg. Claire Rouillard, Esg.