Our Lady of Peace v. Morgan

• Court: Supreme Court of Virginia
• Decided: August 30, 2019
• Docket: 180736
• Status: Published

Opinion

PRESENT: All the Justices

OUR LADY OF PEACE, INC. OPINION BY v. Record No. 180736 JUSTICE D. ARTHUR KELSEY AUGUST 30, 2019 BARBARA MORGAN, ADMINISTRATOR OF THE ESTATE OF GERTRUDE AUSTIN, DECEASED, ET AL.

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge

A nursing assistant molested and raped an 85-year-old resident at a nursing home. The

administrator of the resident’s estate sued the nursing assistant and the nursing home. The jury

returned a verdict against both defendants. On appeal, the nursing home argues that the trial

court erred in holding, prior to trial (and also by instructing the jury at trial), that the nursing

assistant had committed the molestation and rape while acting within the scope of his

employment. The nursing home also contends that the trial court made erroneous evidentiary

rulings regarding the admissibility of expert testimony. For the reasons that follow, we reverse

the final judgment and remand the case for retrial.

I.

In 2015, the Administrator of the Estate of Gertrude Austin (“the Estate”) filed a

complaint against a nursing assistant, Martin Matthews Martin, and Our Lady of Peace, Inc., the

nursing home at which Martin worked. In 2013, Austin was a resident at Our Lady of Peace. At

that time, “she was weak, ill, partially paralyzed, helpless, and unable to cry out for help.” 1 J.A.

at 2. As a nursing assistant, Martin’s duties included, among other things, undressing residents,

changing their undergarments and diapers, as well as bathing them. See id. To perform these

tasks, Martin had access to the residents’ rooms and could pull a privacy curtain around a

resident while performing his duties. One morning in August 2013, Martin “entered Gertrude Austin’s room and undertook to

provide care to her with the door closed and the privacy curtains drawn, with no one else present

in the room except Gertrude Austin’s disabled roommate.” Id. at 3. At that time, Austin was

bedridden, non-communicative, and nourished by a feeding tube. Martin allegedly entered the

room with the intent to perform his assigned duties. See id. Once there, while “performing his

duties . . . in the course and scope of his employment . . . , Martin engaged in wrongful conduct

that included, but was not limited to, raping” Austin as she lay incapacitated on her bed. Id.

(emphasis added). In addition to rape, Martin’s wrongful conduct included “acts of touching,

sexually abusing, and molesting” Austin. Id. at 4. At some point, another employee entered the

room, briefly observed some aspect of this conduct, and later (how long was in dispute) reported

what she saw to an on-call supervisor.

The Estate filed suit against Martin and Our Lady of Peace. 1 Against Our Lady of Peace,

the Estate asserted various theories of recovery: (i) vicarious liability under respondeat superior

principles for Martin’s assault and battery; (ii) negligent hiring and retention of Martin; (iii)

negligent operation of the nursing home; (iv) special-relationship liability arising out of Our

Lady of Peace’s negligent failure to protect Austin from sexual assault; (v) negligence liability

arising out of an assumption of tort duties; and (vi) negligent training, management, and

supervision of Our Lady of Peace’s employees. The Estate also sought punitive damages.

Among Our Lady of Peace’s responsive pleadings was a plea in bar challenging the

Estate’s allegations of respondeat superior liability for Martin’s molestation and rape of Austin.

At the plea-in-bar hearing, Our Lady of Peace called its Executive Director as its only witness.

1 The complaint also named Medical Facilities of America LXVIII d/b/a Charlottesville Health & Rehabilitation Center and Coordinated Services Management, Inc. as defendants. The Estate later nonsuited these defendants.

2 She offered no testimony or documentary evidence describing any factual aspect of Martin’s

molestation and rape of Austin. Instead, she generally described Our Lady of Peace’s policies

and practices, the regulations to which it was subject, the role of nursing assistants, Martin’s

employment record, and the medical and daily-activity assistance provided to Austin.

The Estate offered no testimony or evidence during the plea-in-bar hearing. Regarding

Our Lady of Peace’s plea in bar, the Estate took the position that, though the pleading “ha[d]

been filed as a plea in bar, . . . essentially it is a demurrer.” Id. at 174. “There have been no facts

provided through the plea in bar,” the Estate argued, “other than Our Lady of the Peace has

regulations that they have to follow.” Id. (emphasis added). “It just doesn’t follow,” the Estate

continued, that Martin was acting outside the scope of his employment simply because he “didn’t

follow those regulations.” Id. The Estate repeated this point during oral argument on appeal,

conceding that “what was alleged in the complaint . . . was all the evidence that was before the

court on the plea in bar” on the disputed issue of vicarious liability. Oral Argument Audio at

16:24 to 16:30; see also Appellee’s Br. at 6-7, 21, 28-29 (describing the absence of evidence and

Our Lady of Peace’s concession on the issue).

This argument was the Estate’s main focus at the plea-in-bar hearing: “[O]ur allegation

is that [Martin] was in the course and scope of the employment” and “that the burden then shifts

to the defense to put on evidence that he was beyond the course and scope, and that that is a jury

issue.” 1 J.A. at 174 (emphasis added). Virginia law, the Estate insisted, “has been clear that it’s

a jury issue, whether or not it’s course and scope,” which is why the trial court should “allow the

case to proceed to the jury.” Id.; see also id. at 175 (arguing that “if the evidence leads to

question and doubt,” the scope-of-employment issue “becomes an issue to be determined by the

jury” (citation omitted)). “I submit to you,” counsel advised the trial court, “all we needed to do

3 was plead that [Martin] was an employee and in the course and scope of his employment. And

then the burden is shifted for the defense to convince a jury why he was not in the course and

scope.” Id. at 175. “So that’s our position,” counsel concluded. Id. 2

At the plea-in-bar hearing, the trial court seemed to agree with the Estate, asking from the

bench after counsel for Our Lady of Peace had described Martin’s services as ending before the

rape, “And for the plea in bar, how do I know that?” Id. at 172. The court then took the plea in

bar under advisement. Four months later, the court issued an order denying the plea in bar along

with a letter opinion explaining that it was “rul[ing] based upon the rational[e] provided in”

Plummer v. Center Psychiatrists, Ltd., 252 Va. 233 (1996), an opinion reversing a trial court’s

grant of a demurrer and directing that the disputed scope-of-employment issue be resolved by the

jury on remand. See 1 J.A. at 107. While citing Plummer, however, the trial court appeared to

2 The Estate repeated this argument at length in its brief opposing the plea in bar: • “The matter of the scope of Martin’s employment simply is not ripe for this Court’s review at this time.” 1 J.A. at 97. • “[Our Lady of Peace’s] . . . argument regarding course and scope is premature and not properly raised at this time.” Id. at 98. • “[Our Lady of Peace] . . . ha[s] not offered any authority for the proposition that this issue can be properly resolved by the [c]ourt in this case at this stage of the proceedings.” Id. • “The Estate of Austin has made out a prima facie case of [Our Lady of Peace’s] vicarious liability, and it will be [Our Lady of Peace’s] burden at trial to prove that Martin acted outside the scope of his employment.” Id. at 99. • “In [responding to Our Lady of Peace’s arguments], The Estate of Austin is not conceding that the [c]ourt needs to consider these additional arguments at this time, or that it is even proper to do so.” Id. (emphasis added). • “When the time comes” — that is, when the jury sits as factfinder — “the proper test will be ‘whether the service itself, in which the tortious act was done, was within the ordinary course of the employer’s business.’” Id. at 101 (citation omitted). • “[T]here is enough evidence for the case to be decided by a jury.” Id. at 102.

4 go beyond the holding in that case by ruling on the merits that “Martin’s willful and malicious

acts were committed while he was performing duties at Our Lady of Peace and in execution of

those services for which he was employed,” id.

The order, which the Estate had proffered, expressly repeated that “Martin’s acts were

committed while he was performing duties of Our Lady of Peace and in execution of those

services for which he was employed,” id. at 207. The order also contained this sentence: “The

[c]ourt finds that Mr. Martin was in the course and scope of his employment when he committed

the rape of Mrs. Austin.” Id. Our Lady of Peace objected to this sentence in part because it was

“not in the judge’s letter opinion.” Id. at 204. In response, the court crossed out this sentence

“just to make sure that the [c]ourt follows the language that was set forth in the opinion letter,”

id., while leaving in the near-verbatim quotation from that prior letter opinion. See id. at 207.

The pertinent portion of the order reads:

As to that Plea in Bar, the [c]ourt heard evidence and argument and finds that Mr. Martin’s acts were committed while he was performing duties of Our Lady of Peace and in execution of those services for which he was employed. The Court finds that Mr. Martin was in the course and scope of his employment when he committed the rape of Mrs. Austin.

Id.

Prior to trial, the Estate filed a motion in limine and argued that the trial court should

preclude Our Lady of Peace from presenting any evidence challenging the respondeat superior

finding. According to the Estate, the trial court had held, in its plea-in-bar ruling, that “the issue

of course and scope of employment ha[d] been decided,” and therefore, Our Lady of Peace

should be precluded “from presenting any evidence inconsistent with the [c]ourt’s ruling.” Id. at

117. Taking a position opposite to the one that it had taken at the plea-in-bar hearing, the Estate

insisted that the scope-of-employment question did not involve an issue of fact for the jury. “It is

5 disingenuous,” the Estate argued, “for [Our Lady of Peace] to now claim the issue should be

decided by a jury simply because it disagrees with the [c]ourt’s ruling on the matter.” Id. at 118.

The Estate did not explain how the trial court could have decided the scope-of-employment issue

without having heard any evidence on it.

In reply, Our Lady of Peace correctly recalled that, before the plea-in-bar hearing, the

Estate had taken the position “that whether Mr. Martin’s conduct is within the scope of

employment is a jury issue that cannot be decided by the court.” Id. at 123. “On brief,” the

Estate had contended “that a defendant’s failure to meet the burden of proof requires the scope of

employment issue to be heard by a jury.” Id.

The trial court granted the motion in limine, holding that the scope-of-employment issue

had been properly before the court at the plea-in-bar hearing, was ripe for the trial court to decide

pretrial, and thus, was not a question of fact for the jury. The court barred Our Lady of Peace

from presenting any evidence at trial suggesting that Martin had acted outside the scope of his

employment when he molested and raped Austin. The trial court explained: “[T]he [c]ourt

finds, on the merits, and as a clarification of its prior ruling, that . . . Martin’s acts were

committed within the course and scope of his employment with [Our Lady of Peace].” Id. at

211. Like the Estate, however, the court never explained how it could have decided a dispute

concerning vicarious liability on the merits by relying solely on the allegations of a complaint.

After the Estate had filed an amended complaint that contained counts of vicarious

liability against Our Lady of Peace for assault and battery, vicarious liability against Our Lady of

Peace for negligence in caring for and protecting Austin, and direct liability against Our Lady of

Peace for negligence in caring for and protecting Austin, the case proceeded to a jury trial. True

to its “clarification,” id., the trial court enforced its ruling on the motion in limine by precluding

6 Our Lady of Peace from presenting evidence contesting vicarious liability. To ensure that the

jurors understood that vicarious liability was not a factual issue for their consideration, the court

gave a jury instruction stating that the matter had been resolved prior to trial:

In order to recover against Our Lady of Peace for Martin Matthews Martin’s acts or omissions, the plaintiff has the burden of proving by the greater weight of the evidence that Martin Matthews Martin was an employee of Our Lady of Peace; that [he] . . . committed a battery and/or assault while acting within the scope of his employment; and that this . . . battery and/or assault proximately caused damage to Gertrude Austin. The [c]ourt has determined that Martin Matthews Martin was an employee of Our Lady of Peace and was acting within the scope of his employment.

Id. at 334 (emphases added). At trial, however, facts bearing on the vicarious liability issue were

presented because they were relevant to Martin’s personal liability. For example, Martin’s

confession in his criminal case was introduced into evidence. Aspects of this confession would

have been relevant to the scope-of-employment issue if the trial court had not decided the issue

prior to trial.

The trial court also made two evidentiary rulings that Our Lady of Peace contests on

appeal. First, it excluded testimony from a licensed nursing-home administrator who Our Lady

of Peace had offered “as an expert in standard of care for skilled nursing facilities in relation to

employment issues and dealing with staff care issues and training, and those matters,” 2 id. at

648-49. The court found that the expert did not have an “active clinical practice” as required by

Code § 8.01-581.20(A) because supervising and administering a nursing home does not

constitute a clinical practice.

Second, the trial court refused to exclude testimony by the Estate’s expert to the effect

that Martin’s actions had violated the standard of care governing nursing assistants. Among

other things, Our Lady of Peace argued that the expert should not be allowed to testify on such

7 matters because they were within the common knowledge of the jury. The court held that the

proposed testimony was within the jurors’ common knowledge but nonetheless held that the

expert would be allowed to testify on these matters. See 2 J.A. at 446-48.

At the end of trial, the parties proposed a general verdict form that did not make any

distinction between the direct-negligence claim against Our Lady of Peace and the two vicarious

liability claims against Our Lady of Peace. When the trial court questioned counsel about the

verdict form, counsel for the Estate confirmed that offering a general verdict form “was an

intentional decision” and that the verdict form was an “agreed upon verdict form.” Id. at 697.

Counsel for Our Lady of Peace said nothing to contradict this assertion. 3

During jury deliberations, the jurors presented a handwritten question to the court: “Is an

employer equally liable as the employee when the employee engages in a criminal act?” Id. at

698. The court answered by referring the jury to the previously given instructions. Using the

general verdict form, the jury found Our Lady of Peace and Martin liable and awarded the Estate

$1,750,000 in damages. After a round of unsuccessful post-trial motions by Our Lady of Peace

and Martin, the trial court entered final judgment against them pursuant to the jury verdict. Both

Martin and Our Lady of Peace filed petitions for appeal. We granted only Our Lady of Peace’s

petition.

II.

A. RESPONDEAT SUPERIOR LIABILITY FOR MARTIN’S CONDUCT

On appeal, Our Lady of Peace first argues that the trial court erred in holding, based

solely upon the allegations of the original complaint, that Martin had committed the molestation

3 Counsel for Our Lady of Peace only stated: “It would be difficult for me to respond, Your Honor, without injecting insurance into this.” 2 J.A. at 697.

8 and rape within the scope of his employment. In Parker v. Carilion Clinic, we restated the short-

form version of the doctrine of respondeat superior: “[A]n employer is liable for the tortious act

of his employee if the employee was performing his employer’s business and acting within the

scope of his employment.” 296 Va. 319, 335 (2018) (citation omitted). We also observed that

the “low-resolution” nature of this axiom leads to “‘difficulties’ in its application” and often

presents “conceptually ‘vexatious’” and “perplexing” questions. Id. (citations omitted).

Acknowledging these criticisms, we sought to recapture the “first principles” of respondeat

superior and to eliminate some of the “doctrinal vagaries” that had crept into our jurisprudence

on this issue, id. at 336 (citation omitted).

“In Virginia,” we explained, “the first principle of respondeat superior is that vicarious

liability may be imposed on an employer when ‘the service itself, in which the tortious act was

done, was within the ordinary course of the employer’s business,’” meaning “when the employee

committed the tort while ‘performing a normal function’ of his assigned job.” Id. (emphasis in

original) (alteration and citation omitted). “We have consistently applied this test in our

jurisprudence.” Id. (citation omitted).

To put the matter succinctly, “the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose.” Under this job-related-service principle, while it is true that vicarious liability “is not limited to those acts of the servant which promote the object of the employment,” it is equally true that no such liability can be imposed if the tortious act did not arise out of the “very transaction,” or service or task, that the employee was being paid to perform.

Id. at 336-37 (emphasis in original) (alteration and citations omitted). In our leading cases, “the

tortious act or transaction occurred while the employee was in fact performing a specific job-

related service for the employer, and, but for the employee’s wrongdoing, the service would

9 otherwise have been within the authorized scope of his employment.” Id. at 338 (emphases in

original). “It simply is not enough . . . that the claim ‘arose out of an activity which was within

the employee’s scope of employment or within the ordinary course of business.’” Id. at 339

(emphasis and citation omitted). “Instead, the employee must have committed the tort while

actively engaged in a job-related service.” Id. (first emphasis added).

In Parker, we emphasized that “[t]he employee’s motive in committing the tortious act

plays a role in the job-related-service doctrine.” Id. at 340. “For nearly a century, we have

stated that respondeat superior liability cannot extend to an employer for an unauthorized

tortious act by an employee arising ‘wholly from some external, independent, and personal

motive on the part of the employee to do the act upon his own account.’” Id. (emphasis in

original) (alteration and citations omitted). “Though our application of this concept has been less

than consistent, our adherence to the underlying principle has not wavered.” Id.

This motive inquiry is not novel or unusual. It “tracks analogous requirements in the

second and third Restatements of Agency,” which “[b]oth make clear that a servant’s tortious act

‘is within the scope of employment if, but only if[,] it is actuated, at least in part, by a purpose to

serve the master’” and that “an employee’s act is not within the scope of employment when it

occurs within an independent course of conduct not intended by the employee to serve any

purpose of the employer.” Id. (emphases in original) (alterations and citations omitted).

This observation brings us to a nuance in the respondeat superior doctrine that deserves

reemphasis. We stated in Gina Chin & Associates v. First Union Bank that an employee’s

motive in committing the tort is “not determinative.” 260 Va. 533, 543 (2000). Yet we also said

in both Gina Chin and in Parker that the employee’s motive can be determinative in cases where

the bad motive is accompanied by a “deviation from the employer’s business” that is “marked

10 and unusual” as opposed to “slight.” Parker, 296 Va. at 341 (emphasis added) (quoting Gina

Chin, 260 Va. at 543-44). If the deviation “falls instead between those two extremes,” we

explained, “the question is for the jury.” Id. (citation omitted). If the motive of the actor is clear

and the deviation falls within one of those two extremes — with both being so factually

incontestable that no reasonable juror could disagree — then the question is no longer one of fact

for the jury but one of law for the court. This formula addresses the outlier scenarios on both

ends, which we described as deviations that are “slight on the one hand, or marked and unusual

on the other,” id. (citation omitted).

We see some ambiguity, but no real inconsistency, in this formula for the role of motive

in the respondeat superior doctrine. Gina Chin struck a subtle balance on the issue of motive. Its

persuasive relevance turns not only on the nature of the employee’s motive but on the degree to

which that motive produces conduct deviating from the employer’s business. Viewing motive as

being dispositive “in isolation,” however, skews the analysis. Id. at 340. Motive and conduct

should be considered in tandem. In that conjoined equation, the variable of motive can be

decisive in any given case.

The legal principles surveyed in Parker demonstrate the error of the trial court’s pretrial

factual finding that “Martin’s acts were committed while he was performing duties of Our Lady

of Peace and in execution of those services,” 1 J.A. at 207. At the plea-in-bar hearing, neither

party presented evidence on what specific acts Martin had committed, when he had committed

them, what duties or services he had allegedly been engaged in while committing those acts, or

what his motives had been. The trial court could not have made a factual finding on these issues

without such facts. As the Estate argued at the plea-in-bar hearing (a position later silenced by

11 the court’s letter opinion), 4 all disputed factual issues should have been decided at trial by the

jury.

By deciding the scope-of-employment issue before trial and instructing the jury that the

issue had already been decided against Our Lady of Peace, the trial court effectively directed a

verdict against Our Lady of Peace on the vicarious liability claims without hearing a single

witness on the subject. Here again, as the Estate correctly conceded, “what was alleged in the

complaint . . . was all the evidence that was before the court on the plea in bar” concerning the

disputed issue of vicarious liability. Oral Argument Audio at 16:24 to 16:30; see also Appellee’s

Br. at 6-7, 21, 28-29 (describing the absence of evidence and Our Lady of Peace’s concession on

the issue). Needless to say, factual findings cannot be made based solely upon allegations in a

complaint. 5 The trial court thus erred by issuing its plea-in-bar “clarification” order, see 1 J.A. at

210-11, which granted the Estate’s motion in limine and precluded Our Lady of Peace from

introducing any evidence regarding vicarious liability, and further erred by instructing the jurors

that this disputed issue was not their concern.

4 The Estate’s first argument was correct. In the context of this case, the plea in bar was essentially a demurrer, and those two pleadings are not the same. “A demurrer tests the legal sufficiency of” the allegations in a complaint. Crosby v. ALG Tr., LLC, 296 Va. 561, 567 (2018) (citation omitted). A plea in bar does not. It raises a bar, not a mere sufficiency challenge, to the allegations in a complaint. See, e.g., Robinson v. Nordquist, 297 Va. ___, ___, 830 S.E.2d 36, 42 (2019) (“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s recovery.” (citation omitted)). Under modern practice, a plea in bar does not point out the legal insufficiency of allegations but rather demonstrates their irrelevance because of some other dispositive point — usually some affirmative defense such as the “statute of limitations, res judicata, collateral estoppel by judgment, accord and satisfaction, or statute of frauds,” Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 9.8, at 745 (6th ed. 2014). 5 For this reason, we find no merit in the Estate’s argument that we should defer to the trial court’s factfinding, see Appellee’s Br. at 27, 29 n.3. Factfinding presupposes a decisionmaker finding facts, not allegations. As the Estate has conceded, see supra at 3, 12, there were no facts presented at the plea-in-bar hearing related to the vicarious liability issue.

12 Our view is unaffected by the fact that, at trial, the Estate entered Martin’s confession to

the police into evidence. That exhibit does include evidence relevant to Martin’s motives, the

timing and specifics of his criminal acts, and the sequencing of his assigned duties in relation to

those acts. The trial court’s ruling on the Estate’s motion in limine and its jury instruction,

however, barred the parties from addressing the vicarious liability issue and precluded the jury

from deciding it. We thus cannot, as the Estate urges, 6 take notice of this evidence or rely on it

in our decision.

The question now is how to remedy the trial court’s error. Our Lady of Peace contends

that we should review the complaint ourselves, consider its legal sufficiency using demurrer

principles, and dismiss the vicarious liability assault and battery claims as a matter of law. We

disagree.

Vicarious liability claims benefit from a unique presumption that shifts the burden of

production on the scope-of-employment issue to the defense once a complaint alleges the

existence of an employment relationship at the time of the employee’s tort. “This presumption

shifts the burden of production to the employer to present facts sufficient to permit the factfinder

to conclude that the employee was not acting within the scope of his employment at the time of

his tortious conduct,” but “the burden of persuasion stays with the employee from the start.”

A.H. v. Church of God in Christ, Inc., Record No. 180520, 297 Va. ___, ___, 2019 WL 3821906,

at *14 (Aug. 15, 2019) (alteration omitted) (quoting Parker, 296 Va. at 333 n.6). “This

presumption applies at the outset of the case, ‘beginning with the complaint, not the presentation

of evidence at trial.’” Id. (alteration and citation omitted). At trial, however, “[t]he scope-of-

6 See Oral Argument Audio at 17:23 to 18:11; Appellee’s Br. at 29 n.3.

13 employment ‘presumption disappears in the face of positive facts to the contrary.’” Parker, 296

Va. at 342 (citation omitted).

The complaint alleges an employment relationship between Martin and Our Lady of

Peace at the time of the tortious conduct, thus triggering the scope-of-employment presumption.

The complaint goes further, however, by alleging that Martin entered Austin’s room and

“undertook to provide care to her” with the intent to perform his assigned duties. See 1 J.A. at 3.

His duties included undressing residents, changing their undergarments and diapers, as well as

bathing them. While in the room, Martin allegedly committed “wrongful conduct” that included

“acts of touching, sexually abusing, . . . molesting,” and ultimately “raping” Austin and engaged

in this conduct while “performing his duties . . . in the course and scope of his employment.” Id.

at 3-4.

Our Lady of Peace acknowledges the role of the scope-of-employment presumption but

correctly points out that the rebuttal to this presumption can come from the very complaint that

triggers it. See Appellant’s Br. at 10-13. We agree and said as much in Parker: “A plaintiff can

plead herself out of court by affirmatively alleging facts that rebut the presumption implied in

law — no differently than a litigant at trial can rely on an evidentiary presumption and yet assert

facts that undermine it,” 296 Va. at 341. For this “self-refutation” to work, however, it “must be

clear, not conjectural, and irrefutable rather than debatable.” Id. Relying on this premise, Our

Lady of Peace contends that the allegations of molestation and rape in the original complaint

categorically rebut any presumption that such offenses could ever be within the scope of

employment for vicarious liability purposes.

We do not believe that the self-refutation argument can succeed with respect to the

allegations of Martin’s “acts of touching, sexually abusing, and molesting” Austin, 1 J.A. at 4. It

14 is possible to hypothesize how such acts could occur “while the employee was in fact performing

a specific job-related service for the employer” and “while [the employee was] actively engaged

in a job-related service,” Parker, 296 Va. at 338-39 (emphases omitted). Martin’s job-related

services included undressing residents, changing their undergarments and diapers, as well as

bathing them. If Martin’s acts of molestation occurred simultaneously with his performance of

these job-related services, a reasonable jury could infer that he acted from a mixed motive and

not “wholly from some external, independent, and personal motive,” id. at 340 (emphasis in

original) (citation omitted).

We have considerable difficulty saying the same for the allegation of rape. One need not

be a “savvy judge,” A.H., 297 Va. at ___, 2019 WL 3821906, at *1 (citation omitted), to see the

improbability of this violent act occurring simultaneously with any specific tasks associated with

undressing Austin, changing her undergarments and diapers, or bathing her. It seems equally

unlikely that Martin’s motive was anything but exclusively evil when he raped Austin or that

what he did was anything other than a “marked and unusual” deviation, Parker, 296 Va. at 341

(citation omitted), from his employer’s business.

Our prior precedent, however, dictates that we hold that the specificity of the original

complaint, coupled with the unique pleading presumption applicable to respondeat superior

claims, precludes a finding at the pleading stage of this case that, as a matter of law, the rape was

outside the scope of Martin’s employment. See Plummer, 252 Va. at 237 (holding, in the context

of a complaint alleging sexual assault, that “at this stage of the proceedings, there simply are not

sufficient facts which would permit us to hold, as a matter of law, that the defendant has met its

burden of showing that its employee was not acting within the scope of his employment”

(emphasis in original)); see also Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 527

15 (2000) (applying, in a case involving a sexual assault, Plummer’s holding that the trial court

erred in finding the act outside the scope of employment based solely upon the pleadings). Here,

the original complaint expressly alleges that all of Martin’s wrongful acts — including the

rape — occurred while he was performing job-related services within the scope of his

employment. 7 This simultaneity allegation, to be sure, is just that, an allegation. But when

reinforced by the presumption applicable to respondeat superior claims, see A.H., 297 Va. at ___,

2019 WL 3821906, at *14, it is sufficient, though barely so, to survive the pleading stage of this

unique case. 8

B. EVIDENTIARY RULINGS

Our Lady of Peace also challenges two of the trial court’s evidentiary rulings: (i) the trial

court’s decision to preclude Our Lady of Peace’s standard-of-care expert, a licensed nursing-

home administrator, from testifying because he did not have an “active clinical practice” required

by Code § 8.01-581.20(A); and (ii) the trial court’s decision to admit testimony from the Estate’s

expert regarding Martin’s conduct constituting a breach of the standard of care.

1. Our Lady of Peace’s Expert

Though this Court “generally review[s] evidentiary rulings under an abuse of discretion

standard,” when the admissibility of testimony depends upon the interpretation of a statute, the

7 The amended complaint repeats this allegation. See 1 J.A. at 215-16. 8 Averments and proof on a plea in bar should be examined claim by claim. See, e.g., Campbell v. Johnson, 203 Va. 43, 46-48 (1961) (focusing on distinct claims raised in a complaint). As we have often stated, when a trial court hears no evidence on a matter raised in a plea in bar, “the trial court, and the appellate court upon review, must rely solely upon the pleadings in resolving the issue presented.” Tomlin v. McKenzie, 251 Va. 478, 480 (1996); see Lostrangio v. Laingford, 261 Va. 495, 497 (2001); Weichert Co. of Va. v. First Commercial Bank, 246 Va. 108, 109 (1993). “When considering the pleadings, ‘the facts stated in the plaintiffs’ [complaint] are deemed true.’” Tomlin, 251 Va. at 480 (alteration omitted) (quoting Glascock v. Laserna, 247 Va. 108, 109 (1994)).

16 question is one of law that we review de novo. Jones v. Williams, 280 Va. 635, 638 (2010)

(citation omitted). In particular, Our Lady of Peace contends that the trial court erroneously

interpreted and applied Code § 8.01-581.20(A), which states, in relevant part:

A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.

The statute does not define the term “active clinical practice,” but the concluding sentence of

subsection A states, “The provisions of this section shall apply to expert witnesses testifying on

the standard of care as it relates to professional services in nursing homes.” Code § 8.01-

581.20(A). 9

The Code also defines “Health care” to include “any act, professional services in nursing

homes, or treatment performed or furnished, or which should have been performed or furnished,

by any health care provider” and in turn defines a “Health care provider” to include “a nursing

home” and “a director, officer, employee, independent contractor, or agent of” such nursing

home. Code § 8.01-581.1. The specific inclusion of nursing homes, their services, and their

directors and employees in the definitions of “Health care” and “Health care provider,” id., lends

9 The Estate argues on appeal that Our Lady of Peace failed to preserve its argument with respect to this expert’s testimony by failing to proffer the substance of that testimony. See Appellee’s Br. 33-34. The Estate asserts that, in addition to not proffering a summary of this expert’s expected testimony, Our Lady of Peace “never even referred the court to its expert disclosure or made that disclosure part of the trial record as a place to look for a summary of [the expert’s] expected testimony and opinions.” Id. at 33. However, as Our Lady of Peace points out, see Reply Br. at 10-11, it offered to the trial court a copy of the expert disclosure, which contained a description of the expert’s anticipated testimony, and the court stated that it did not need the designation at that time and instructed counsel for Our Lady of Peace to leave the designation with the bailiff. See 2 J.A. at 659-60. Thus, we find no merit in the contention that the issue of the admissibility of this expert’s testimony was not properly preserved below.

17 strong support to the conclusion that the legislature intended nursing-home administrators to

constitute those with “active clinical practice” qualified to offer expert testimony regarding the

standard of care for professional services in nursing homes, Code § 8.01-581.20(A). The trial

court thus improperly found that Our Lady of Peace’s expert did not have an “active clinical

practice” as required by the statute, id. 10

2. The Estate’s Expert

Our Lady of Peace argues that the trial court erred in allowing the Estate’s expert to

testify that several of Martin’s actions — including being on top of a patient making thrusting

motions, engaging in genital contact with a resident, penetrating a female resident’s vagina, and

raping a resident — were violations of the standard of care. According to Our Lady of Peace,

these opinions were not appropriate topics for expert testimony because they were within the

common knowledge of the jurors. We agree.

The trial court specifically found that the contested expert testimony was within the

common knowledge of the jurors but nonetheless admitted the testimony. See 2 J.A. at 446-48.

The court assessed the evidence correctly. It is implausible that any lay juror would think that

Martin’s abhorrent actions were not violations of the standard of care. That alone should have

ended the admissibility analysis. “[W]hen the issue to be decided involves matters of common

knowledge or those as to which the jury is as competent to form an intelligent and accurate

opinion as the expert witness, expert evidence is inadmissible.” Blue Ridge Serv. Corp. of Va. v.

Saxon Shoes, Inc., 271 Va. 206, 213 (2006); see also Venable v. Stockner, 200 Va. 900, 904-05

10 We see no reason to question the expert’s qualifications to testify regarding the standard of care in this case. At the time of trial, he was a nursing-home administrator at another facility and had been so within the requisite one-year time frame. He also had nearly 30 years of experience managing nursing homes.

18 (1959) (describing this principle as “well settled” and collecting cases). See generally Kent

Sinclair & Charles E. Friend, The Law of Evidence in Virginia § 13-6[a], at 788-94 (8th ed.

2018) (describing Virginia’s adherence to this rule despite statutory reforms).

Although the trial court erred in admitting the expert testimony, we find that the error was

harmless. Any error that does not implicate the trial court’s subject matter jurisdiction is subject

to harmless-error analysis because “Code § 8.01-678 makes ‘harmless-error review required in

all cases.’” Commonwealth v. White, 293 Va. 411, 420 (2017) (emphasis and citation omitted).

Absent an error of constitutional magnitude, “no judgment shall be arrested or reversed” when

“it plainly appears from the record and the evidence given at the trial that the parties have had a

fair trial on the merits and substantial justice has been reached.” Code § 8.01-678. “The

harmless-error check on judicial power has never been a begrudged limitation, but rather one

‘favored’ by Virginia courts,” White, 293 Va. at 420 (citation omitted), because it stems from the

“imperative demands of common sense,” Oliver v. Commonwealth, 151 Va. 533, 541 (1928).

Applying the “imperative demands of common sense,” id., we cannot say that the

testimony of the Estate’s expert affected the outcome of the case. 11 It is wholly implausible that

the jurors would not have known that Martin’s actions were violations of the standard of care

without an expert telling them so. Therefore, while the error should not be repeated on remand,

it does not serve as a predicate for reversing the final judgment now before us. The admission of

expert testimony on matters within the common knowledge of the jury may not “be of sufficient

11 See, e.g., Peters v. Shortt, 214 Va. 399, 404 (1973) (stating that such error in admitting expert testimony was “rendered harmless by the other evidence in the case”); Virginia Iron, Coal & Coke Co. v. Tomlinson, 104 Va. 249, 254 (1905) (finding the admission of such evidence harmless); Lane Bros. v. Bauserman, 103 Va. 146, 155 (1904) (same).

19 import to constitute reversible error,” but such evidence “should not be admitted at a new trial.”

Hill v. Lee, 209 Va. 569, 573 (1969).

III.

The trial court erred in removing the scope-of-employment issue from the jury based

upon its ruling on Our Lady of Peace’s plea in bar, which it later implemented through its ruling

on the motion in limine and through its jury instruction. The court also erred in excluding Our

Lady of Peace’s expert witness and in admitting the challenged testimony of the Estate’s expert

witness. For these reasons, we reverse the trial court’s final judgment and remand this case for

further proceedings consistent with this opinion.

Reversed and remanded.

JUSTICE McCULLOUGH, with whom JUSTICE McCLANAHAN joins, concurring.

Constrained by our precedent, I join the majority opinion. The point that gives me the

most difficulty is the question of whether an employer can be held liable when an employee

commits a rape.

A master is not liable for every wrong which a servant may commit during the continuance of an employment. The master is responsible only when it can be said that the servant was in the course of his employment when the injury was done. If the servant steps aside from his master’s business and is engaged in an independent venture of his own, the relation of master and servant is for the time suspended.

McNeill v. Spindler, 191 Va. 685, 694-95 (1950).

A Virginia jury has, and ought to have, a central role in fact-finding determinations. See

Va. Const. Art. I § 11. Our decisions respect this role in the context of employer liability. We

have consistently held that “unless the deviation from the employer’s business is slight on the

one hand, or marked and unusual on the other, but falls instead between those two extremes, the

20 question is for the jury.” See, e.g., Parker v. Carilion Clinic, 296 Va. 319, 341 (2018) (quoting

Gina Chin & Associates, Inc. v. First Union Bank, 260 Va. 533, 543-44 (2000)). See also

McNeill, 191 Va. at 695. In close cases, the jury should decide. It is hard to imagine, however, a

set of circumstances under which a rape perpetrated by an employee would not belong firmly in

the camp of “marked and unusual” cases for which the employer bears no legal responsibility.

There exists abundant persuasive authority rejecting, as a matter of law, employer liability in

comparable circumstances. * The plaintiff has not offered a single case to the contrary. We are

* See Doe v. Swift, 570 So.2d 1209, 1211-13 (Ala. 1990) (holding psychologist’s sexual assault of his patient was outside the scope of his employment because it was “against all rules of his profession and [was] without any benefit to his employer”); Porter v. Harshfield, 948 S.W.2d 83, 85-86 (Ark. 1997) (holding radiology technician was not “by any stretch of the imagination” acting within scope of employment when, during an ultrasound for suspected gallbladder problems, he placed his mouth on the plaintiff’s penis and began performing oral sex); Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 49 S.W.3d 107, 115 (Ark. 2001) (Certified nursing assistant “was not, by any stretch of the imagination, acting within the scope of his duties as a CNA when he assaulted [a nursing home patient who was a semi-comatose quadriplegic]. Rather, [his] actions were purely personal.”); Lisa M. v. Henry Mayo Newhall Memorial Hospital, 907 P.2d 358, 363-66 (Cal. 1995) (explaining that “deliberate, independently motivated” sexual molestation of patient by ultrasound technician during examination did not involve an act within the scope of the technician’s employment); DiTeresi v. Stamford Health Systems, Inc., 2007 WL 901811 at *3-4 (Conn. Super. Ct. Mar. 6, 2007) (holding hospital was not vicariously liable for employee’s sexual assault on 96-year-old patient suffering from dementia); Piedmont Hospital, Inc. v. Palladino, 580 S.E.2d 215, 218 (Ga. 2003) (When hospital employee “began manipulating [the surgical patient’s] genitals, then he abandoned the hospital’s interests and began pursuing his own personal, morally offensive, agenda.”); Hoover v. University of Chicago Hospitals, 366 N.E.2d 925, 929 (Ill. App. Ct. 1977) (holding hospital was not vicariously liable for doctor’s sexual assault of patient since it was “committed solely for the benefit of the doctor”); Zsigo v. Hurley Medical Center, 716 N.W.2d 220, 229 (Mich. 2006) (ruling medical center was not vicariously liable for nursing assistant’s sexual assault of patient who was in restraints); N.X. v. Cabrini Medical Center, 765 N.E.2d 844, 847 (N.Y. 2002) (“A sexual assault perpetrated by a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives.”); G.L. v. Kaiser Foundation Hospitals, Inc., 757 P.2d 1347, 1350 (Or. 1988) (holding hospital was not vicariously liable for sexual assault by respiratory therapist on an unconscious patient); Buck v. Blum, 130 S.W.3d 285, 289-90 (Tex. Ct. App. 2004) (holding neurologist performing behind-the back arm-strength test was not acting within scope of employment when he placed his penis in the patient’s hand and told her to squeeze it); Birkner v. Salt Lake County, 771 P.2d 1053, 1057-59 (Utah 1989) (holding mental health facility not vicariously liable for

21 not asked to reconsider any aberrant precedent, and the majority properly declines to undertake

the exercise sua sponte.

Our jurisprudence favors resolution of contested factual matters by juries, but it does not

abdicate judicial oversight over claims that have no possible basis in any intelligible conception

of the doctrine of respondeat superior.

JUSTICE MIMS, with whom JUSTICE POWELL joins, concurring in part and dissenting in part.

Our Lady of Peace sought to resolve the Estate’s respondeat superior claim without the

hassle of trial via a plea in bar. When it failed to present adequate evidence to rebut the scope-

of-employment presumption during the plea-in-bar hearing and thus lost on that issue, it adopted

the inconsistent position that scope-of-employment was a jury issue to be resolved at trial. The

trial court rejected this position. The majority excuses this misstep. The majority also continues

this Court’s recent and concerning trend of giving undue—and perhaps even “determinative”—

emphasis to the personal motives of employees in respondeat superior cases. Because I believe

the trial court properly held Our Lady of Peace to its pleading decisions, and I believe the

majority’s articulation of the scope-of-employment analysis continues to unmoor that inquiry

from its precedential anchor, I respectfully dissent from the majority’s resolution of the Estate’s

respondeat superior claim.

A. The Trial Court Properly Decided Our Lady of Peace’s Plea in Bar

The majority resolves the respondeat superior claim on purely procedural grounds. It

holds that the trial court erred by “effectively direct[ing] a verdict against Our Lady of Peace on

therapist’s sexual assault because “it served solely the private and personal interests of [the therapist]”).

22 the vicarious liability claims without hearing a single witness on the subject,” faulting both

parties for failing to present facts the trial court could use to make a finding. Ante at 12. The

burden of presenting evidence at the plea-in-bar hearing, however, rested solely with Our Lady

of Peace, the party that made the strategic litigation decision to submit the scope-of-employment

issue to the trial court rather than a jury using a plea in bar. When Our Lady of Peace failed to

meet its burden, the trial court properly resolved the scope-of-employment issue against it.

A foundational principle of the American legal system is that “[t]he litigants—not the

judges—determine the issues to be decided, the facts to be presented, and the range of remedies

to be sought.” D. Arthur Kelsey, Procedural Defaults: Balancing Systemic & Individual Justice,

1 VTLAppeal 1, 1 (2012). “Our adversary system is designed around the premise that the parties

know what is best for them, and are responsible for advancing the facts and arguments entitling

them to relief.” Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring). It

“relies chiefly on the parties to raise significant issues and present them to the courts in the

appropriate manner at the appropriate time for adjudication.” Sanchez-Llamas v. Oregon, 548

U.S. 331, 356 (2006) (second emphasis added). Judges do not direct the proceedings in our legal

system. Instead, judges decide cases in the form presented by, and “on the basis of facts and

arguments pro and con[,] adduced by the parties.” Id. at 357.

In this case, Our Lady of Peace elected to use a plea in bar to present the scope-of-

employment issue—the question upon which the Estate’s entire case hinged—without recourse

to a full jury trial. Unlike a demurrer that merely challenges the sufficiency of allegations in a

complaint, a plea in bar “alleges a single state of facts or circumstances (usually not disclosed or

disclosed only in part by the record) which, if proven, constitutes an absolute defense to the

claim.” Nelms v. Nelms, 236 Va. 281, 289 (1988) (emphasis added). As with any tactical choice

23 during litigation, Our Lady of Peace’s decision to use a plea in bar rather than a demurrer or

other responsive pleading with regard to the scope-of-employment issue had risks and benefits.

Foremost among the benefits is that a plea in bar can dramatically shorten litigation by reducing

the case to a single issue. Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578, 586 (1985).

Adding to the potential utility of a plea in bar is the fact that, even if the facts are disputed, if “no

demand for a jury is made, the ‘whole matter of law and fact’ may be decided by the court.”

Hawthorne v. VanMarter, 279 Va. 566, 578 (2010) (quoting Code § 8.01-336(B)). Although the

scope-of-employment issue was hotly contested, the parties nevertheless agreed to submit the

plea to the trial court for determination. Neither party demanded a jury. See Code

§ 8.01-336(B).

Complicating the use of a plea in bar in this case are the burden-shifting presumptions

endemic to vicarious liability cases. Under ordinary principles of respondeat superior, the Estate

as plaintiff bears “the burden of persuasion on the issue whether the employee was within the

scope of the employment when the act which caused the injury was committed.” Majorana v.

Crown Cent. Petroleum Corp., 260 Va. 521, 526 (2000). Its “burden of production on that issue

is met by establishing the employer-employee relationship at that time.” Id. A presumption of

liability exists once it establishes the employer-employee relationship. Id. As the majority

notes, “[t]his presumption applies at the outset of the case, ‘begin[ning] with the complaint, not

the presentation of evidence at trial.’” A.H. v. Church of God in Christ, Inc., 297 Va. ___, ___

(2019) (quoting Parker v. Carilion Clinic, 296 Va. 319, 334 (2018)). Once established, the

presumption disappears only “in the face of positive facts to the contrary.” Parker, 296 Va. at

342 (quoting McNeill v. Spindler, 191 Va. 685, 694 (1950)).

24 It is undisputed that an employer-employee relationship existed between Our Lady of

Peace and Martin at all relevant times. The Estate was thus entitled to the presumption of

liability. Because the Estate had established the presumption, the burden of production then

shifted to Our Lady of Peace to present evidence rebutting that presumption “by proving that the

employee had departed from the scope of the employment relationship at the time the injurious

act was committed.” Majorana, 260 Va. at 526.

Additionally, Our Lady of Peace had the burden of proof on the scope-of-employment

issue because “the party asserting a plea in bar bears the burden of proof on the issue presented.”

Hawthorne, 279 Va. at 577. This burden included its burden of producing evidence to rebut the

presumption because Our Lady of Peace “effectively agreed to have the judge decide all legal

and factual questions underlying the single issue” by making the calculated decision to submit

the entire scope-of-employment issue to the trial court using a plea in bar. Id. at 578.

Having thus chosen to use a plea in bar—and not to use a jury—Our Lady of Peace had

the burden of presenting evidence sufficient to rebut the presumption of liability to prevail on the

scope issue. Its evidence failed to do so for the reasons stated in the majority opinion.

At that point in the litigation, Our Lady of Peace had invited the trial court to make a

finding of fact. 1 On appeal, however, Our Lady of Peace does not argue that the trial court’s

1 Our Lady of Peace contends that it sought to have the trial court rule that, as a matter of law, nothing in the Estate’s allegations fell within the scope of Martin’s employment. It is true that when “no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented,” Lostrangio v. Laingford, 261 Va. 495, 497 (2001), an inquiry that is a “pure question of law,” David White Crane Serv. v. Howell, 282 Va. 323, 327 (2011). But Our Lady of Peace elected to introduce evidence on the plea. In doing so, it transformed the plea-in-bar hearing from a purely legal inquiry based on the pleadings to an ordinary ore tenus hearing in which the trial court received evidence and decided the issue itself. See Cooper Indus., Inc. v. Melendez, 260 Va. 578, 594–95 (2000).

25 ruling was without a factual basis. Indeed, it acknowledges on brief that it “does not contend

that the Circuit Court ‘erroneously resolved the facts.’” Nevertheless, the majority ignores the

arguments Our Lady of Peace actually made and instead reverses the trial court for a reason that

was not advanced in Our Lady of Peace’s briefing or oral argument: that it was impossible for

the trial court to reach its conclusion based on the limited evidence presented at the plea-in-bar

hearing. Ante at 11-12.

This Court has long recognized the right-result-wrong-reason doctrine, under which it

“may uphold a judgment even when the correct reasoning is not mentioned by a party in trial

argument or by the trial court in its decision . . . [if] the record contains sufficient information to

support the proper reason.” Haynes v. Haggerty, 291 Va. 301, 305 (2016) (emphasis added).

Until now, it has refrained from using a wrong-result-wrong-reason doctrine to reverse a lower

court for a reason entirely absent from the record. By identifying a legal position not articulated

by the appellant and then reversing on that ground, the majority usurps the litigants’ role in

directing the course of litigation. In doing so—and thereby rescuing Our Lady of Peace from its

procedural missteps—the majority has nodded to the European legal system under which

litigants cede control over their cases to judges, “depend[ing] upon them to raise the winning

arguments that only the judges (so far as the decision is theirs) know in advance to be winners.”

Kelsey, supra, at 2.

The trial court had the authority to find that Our Lady of Peace failed to meet its burden

of rebutting the presumption of liability. It was entitled to hold Our Lady of Peace not only to

that failure, but also to the decision to litigate that issue on a plea in bar by refusing to allow Our

Lady of Peace to relitigate it at trial. There is no doubt that, as the majority notes, this case is an

outlier on its facts. It is also a procedural outlier. Nevertheless, Our Lady of Peace is bound by

26 the procedure it chose. For these reasons, I must dissent from the majority’s resolution of the

Estate’s respondeat superior claim.

B. The Majority’s Scope-of-Employment Discussion is Dicta

Because the majority resolves the respondeat superior issue on procedural grounds, its

lengthy discussion of the job-related service doctrine as articulated in Parker v. Carilion Clinic

and other cases is dicta. I have already presented my views on the job-related service doctrine,

and particularly the role of the employee’s motive in applying that doctrine, in that case. See

Parker, 296 Va. at 350 (Mims, J., concurring). Nevertheless, because the dicta go beyond the

principles articulated in our prior cases, I must address them.

The majority essentially restates the discussion of the job-related service doctrine from

Parker, repeating the rule that an employer will not be vicariously liable for an employee’s

tortious acts arising “wholly from some external, independent, and personal motive on the part of

the employee to do the act upon his own account.” Ante at 10 (quoting Parker, 296 Va. at 340).

In this case, as in Parker, the majority omits the language preceding that excerpt in the original

case, which provides that an act may be within the scope of the employment relationship even if

it arises “from some impulse or emotion which naturally grew out of or was incident to the

attempt to perform the master’s business.” Smith v. Landmark Commc’ns, Inc., 246 Va. 149, 151

(1993) (citing Sayles v. Piccadilly Cafeterias, Inc., 242 Va. 328, 332 (1991); Tri-State Coach

Corp. v. Walsh, 188 Va. 299, 307 (1948); Davis v. Merrill, 133 Va. 69, 77 (1922)). This

omission reflects the Court’s recent trend of considering only whether the employee tortiously

performed a specific job duty within the scope of his employment, rather than looking to

“whether the service itself, in which the tortious act was done, was within the ordinary course of

[the employer’s] business,” in determining whether the alleged tortious act gives rise to vicarious

27 liability. Gina Chin & Assocs., Inc. v. First Union Bank, 260 Va. 533, 543 (2000) (quoting

Davis, 113 Va. at 78). The distinction is subtle, but it has the effect of overruling sub silentio a

sizeable portion of this Court’s respondeat superior precedent.

This Court has traditionally rejected a myopic focus on the particular act the employee

committed and instead considered whether the employer “has put the [employee] in his place to

do that class of acts.” Henry Myers & Co. v. Lewis, 121 Va. 50, 65 (1917) (quoting Barwick v.

English Joint Stock Co., L. R. 2 Exch. 259 (1867)). If so, then the employer is “answerable for

the manner in which the agent has conducted himself in doing the business which it was the act

of the master to place him in.” Id. This approach recognizes the simple truth that when “an

employee commits a willful and wrongful act that results in injury to others . . . such employee

generally does not do so ‘with the intent to further the employer’s interest.’” Gina Chin, 260 Va.

at 541. An employer’s liability “is not limited to those acts of the servant which promote the

object of the employment.” Manuel v. Cassada, 190 Va. 906, 913 (1950). In fact, an employer

may be liable even if “the conduct of the servant . . . be ill-advised or ill-tempered and

detrimental to the interest of the master” as long as “the act is done during the course of the

employment and incident thereto.” Id. “If so, the master is liable though the immediate act goes

beyond the servant’s strict line of duty and authority and be not in the interest of the master.”

Tri-State Coach Corp., 188 Va. at 304–05. In sum, this Court’s respondeat superior precedent

recognizes that “an employee’s tortious act motivated by emotion or passion provoked from the

very performance of the task or function that his or her employer pays him or her to do may

result in the employer’s vicarious liability.” Parker, 296 Va. at 355 (Mims, J., concurring).

The majority’s dicta, however, are more complex than our precedent. Essentially picking

up where the discussion of motive in Parker left off, the majority articulates a “conjoined

28 equation” under which the “persuasive relevance [of an employee’s motive] turns not only on the

nature of the employee’s motive but on the degree to which that motive produces conduct

deviating from the employer’s business.” Ante at 11. Although this approach claims to be an

application of the principles set out in Gina Chin and Parker, the majority’s equation in fact

expands the importance of motive beyond any of our precedent. Furthermore, trial courts

attempting to use the majority’s approach must consider both the employee’s motive and conduct

“in tandem.” The majority provides little direction on how, exactly, courts should perform this

analysis. It cautions against considering motive in isolation but then declares that “the variable

of motive can be decisive in any given case.” Ante at 11. The majority’s conjoined equation

leaves lawyers trying respondeat superior cases, judges deciding those cases, and juries charged

with weighing the two variables of motive and conduct without useful guidance. It is an

equation without a proof.

I fear this approach will only serve to further muddle the already “conceptually

‘vexatious’” and “perplexing” analytical difficulties presented by the scope-of-employment

inquiry. 2

2 This conjoined equation—and indeed, the entire discussion of the job-related service doctrine—was unnecessary to the majority’s resolution of the respondeat superior claim on procedural grounds. Although “dicta are entitled to respect, especially if supported by reason,” Virginia Ry. & Power Co. v. Dressler, 132 Va. 342, 350 (1922), we nevertheless “have always to bear in mind the oft-quoted statement of Chief Justice Marshall in Cohens v. Virginia”:

It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in the subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in

29 Accordingly, for these reasons, I cannot join in or concur with Part II(A) of the majority

opinion.

their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.

Id. at 350–51 (citation omitted) (quoting Cohens v. Virginia, 19 U.S. 264, 399–400 (1821)).