Doe v. Garcia

JOHNSON, Justice.

This is a negligent hiring and supervision ease. We conclude that there are genuine issues of material fact that preclude summary judgment.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS

Fred Garcia (Garcia) became employed by Sisters of the Holy Cross dba St. Alphonsus Regional Medical Center (the hospital) as a respiratory therapist in September 1987. During the hiring process, the hospital reviewed an application completed by Garcia, contacted one of Garcia’s past employers, and conducted a half hour personal interview. This process revealed nothing out of the ordinary and Garcia was hired. Shortly after Garcia began his employment at the hospital, he was reprimanded for encouraging underage employees to consume alcohol. Also in the fall of 1987, Garcia sought the services of the Employee Assistance Program (EAP) for what he termed “being quite preoccupied with sex.” The staff of EAP was directly employed by the hospital. During one of the counseling sessions Garcia had with EAP, he admitted to a counselor (the EAP counselor) that he had been terminated from St. Mary’s Regional Medical Center (St.Mary’s) in Reno, Nevada, for sexually molesting a patient in December 1985. Neither the EAP counselor nor her supervisor, whom she told of Garcia’s admission, advised any other employees of the hospital about Garcia’s prior sexual conduct with a patient.

John Doe (Doe), a minor, was a patient in the hospital for a period of six weeks beginning on August 1,1988. During his hospitalization, Doe received respiratory therapy from Garcia and formed a personal relationship. Following Doe’s release from the hospital, Garcia continued to develop his relationship with Doe. Garcia was discharged by the hospital in June 1989 for encouraging underage employees to consume alcohol after being warned not to do so. During the summer of 1989 after Garcia left the hospital, Garcia began sexually molesting Doe.

Doe filed suit against Garcia, Garcia’s wife, and the hospital. The hospital requested that the trial court grant summary judgment dismissing Doe’s negligence action. For purposes of this request, the hospital asked the trial court to assume that it was negligent in hiring and supervising Garcia. At the same time, Doe requested further discovery concerning the issues of duty, foreseeability, and breach. The trial court denied the discovery request and granted summary judgment. Doe appealed both rulings, and this Court assigned the ease to the Court of Appeals. The Court of Appeals ruled that the trial court should not have denied the motion requesting further discovery, which necessarily required the vacating of the grant of summary judgment. Doe v. Sisters of the Holy Cross, 126 Idaho 1036, 1044, 895 P.2d 1229, 1237 (Ct.App.1995) (Doe I). The Court of Appeals remanded the case to the trial court to permit further discovery “regarding the hospital’s knowledge of Garcia’s psychiatric history and sexual proclivities----” Id.

Following the completion of all discovery in the case, the hospital again requested summary judgment. This time the hospital did not ask the trial court to assume it was negligent in hiring and supervising Garcia. The trial court again granted summary judgment. Doe appealed.

*580II.

THERE IS A GENUINE ISSUE OF MATERIAL FACT CONCERNING THE HOSPITAL’S NEGLIGENCE IN HIRING GARCIA.

Doe asserts that the trial court should not have granted summary judgment dismissing his negligent hiring claim. We agree.

Before hiring Garcia, the hospital did not inquire about the circumstances of Garcia’s termination at St. Mary’s, the last place at which Garcia was employed as a respiratory therapist. The evidence presented in connection with the hospital’s request for summary judgment indicates that the policy St. Mary’s followed when it received an inquiry concerning a former employee was to release only dates of employment and positions held. St. Mary’s would, however, release an employee’s personnel file to the employee upon written request. Garcia’s personnel file from St. Mary’s contains an indication that the reason for his dismissal was sexual molestation of a patient. For purposes of summary judgment, the reasonable inferences that we must draw in favor of Doe as the nonmoving party are that if the hospital had requested that Garcia obtain his employment file from St. Mary’s, Garcia would have done so and would have provided the file to the hospital for its review. This creates a genuine issue of material fact whether the hospital was negligent in hiring Doe.

III.

THE EAP COUNSELOR HAD A DUTY TO INFORM OTHERS AT THE HOSPITAL OF GARICIA’S SEXUAL PROPENSITIES.

Doe asserts that the EAP counselor had a duty to inform others at the hospital of Garcia’s sexual propensities. We agree.

EAP is a mental health assistance and referral service available to all employees of the hospital. The materials the hospital distributed to its employees concerning EAP indicate the confidential and private nature of EAP services. EAP counselors are employees of the hospital. When Garcia discussed his sexual problem with the EAP counselor in the fall of 1987, he talked in terms of being “preoccupied with sex” and stated that “any partner will do.”

Although the EAP was designed around confidentiality, the evidence presented in connection with the hospital’s request for summary judgment indicates that the EAP counselor would reveal information gained from an employee if “someone was in danger.” The EAP counselor was concerned for the welfare of patients in the hospital after learning of Garcia’s sexual problems. At the time Garcia revealed his sexual propensities to the EAP counselor, no statute or common law precedent in this state made the communication privileged. Therefore, the EAP counselor had a duty to disclose the information to others at the hospital. As the employer of the EAP counselor, the hospital is responsible for the failure of the EAP counselor to do so.

IV.

THERE IS A GENUINE ISSUE OF MATERIAL FACT CONCERNING THE HOSPITAL’S NEGLIGENT SUPERVISION OF GARCIA.

Doe asserts that the trial court should not have granted summary judgment dismissing his claim for negligent supervision. We agree.

Because of the knowledge the hospital had through the EAP counselor of Garcia’s sexual propensities, there is a genuine issue of material fact whether the hospital could have prevented the injuries to Doe by taking action to supervise Garcia in a manner that would have prevented Garcia from establishing a relationship with Doe during Doe’s hospitalization.

V.

THERE ARE GENUINE ISSUES OF MATERIAL FACT CONCERNING THE LIABILITY OF THE HOSPITAL FOR DOE’S INJURIES.

Doe asserts that the trial court should not have dismissed his claim that the hospital *581breached its duty toward him and that the breach was a proximate cause of his injuries. We agree.

This Court follows the rule that “ ‘one owes the duty to every person in our society to use reasonable care to avoid injury to the other person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in such injury.’ ” Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980) (emphasis in original). Furthermore, there is a “general rule that each person has a duty of care to prevent unreasonable, foreseeable risks of harm to others.” Sharp v. W.H. Moore, Inc., 118 Idaho 297, 300, 796 P.2d 506, 509 (1990). In Rife v. Long, 127 Idaho 841, 908 P.2d 143 (1995), the Court said:

Determining whether a duty will arise in a particular instance involves a consideration of policy and the weighing of several factors which include:
[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved (citations omitted).

Id. at 846, 908 P.2d at 148.

In the context of the summary judgment granted by the trial court in the present case, the first question we must ask under Rife is whether there is a genuine issue of material fact concerning whether the hospital could have foreseen injury to others from Garcia. Foreseeability “includes whatever result is likely enough in the setting of modern life that a reasonably prudent person would take such into account in guiding reasonable conduct.” Sharp, 118 Idaho at 301, 796 P.2d at 510 (emphasis added). The genuine issues of material fact concerning the negligent hiring of Garcia and the knowledge the hospital had through the EAP counselor of Garcia’s sexual propensities create a genuine issue of material fact concerning whether the hospital should have foreseen that Garcia would use his position with the hospital to form a relationship with a patient that would develop into sexual molestation of the patient. The hospital does not dispute that this molestation injured Doe.

Concerning the closeness of the connection between the hospital’s conduct and Doe’s injury, Garcia and Doe became acquainted and formed a relationship while Garcia administered respiratory therapy to Doe at the hospital. Although it was several months after the formation of this relationship that Garcia sexually molested Doe, the connection is close enough to place a duty on the hospital not to allow Garcia to form his relationship with Doe that eventually injured Doe.

Concerning moral blame, because there is a genuine issue of material fact whether the hospital could have become aware of Garcia’s dangerous sexual propensities before the hospital allowed Garcia to treat Doe, there is a question about the moral blame to be placed on the hospital for its hiring and supervision practices. Concerning the social policy of preventing future harm, the same analysis indicates there is a question whether the hospital had a duty to prevent harm to Doe by Garcia.

Concerning the burden that would be placed on the hospital if a duty is imposed in this case, the genuine issues of material fact concerning the hiring of Garcia and the knowledge of the hospital through the EAP counselor indicate that there is not a heavy burden placed on the hospital in the exercise of its hiring practices and EAP disclosure procedures and policies.

Concerning insurance availability for the risk, the hospital has not presented any evidence to show that it lacks insurance coverage for the risk involved in this case.

We then turn to the question of proximate cause. This case presents multiple potential causes for the harm ultimately suffered by Doe: (1) the negligence, if any, of the hospital, (2) the negligence, if any, of Doe and his parents, and (3) the intentional eon-*582duct of Garcia. The substantial factor test is the proper proximate cause analysis when there is more than one potential cause of the injuries. Le’Gall v. Lewis County, 129 Idaho 182, 187, 923 P.2d 427, 432 (1996). A “substantial factor” is one that “in natural or probable sequence, produced the damage complained of’ or one “concurring with some other cause acting at the same time, which in combination with it, causes the damage.” Fussell v. St Clair, 120 Idaho 591, 595, 818 P.2d 295, 299 (1991).

For purposes of summary judgment, there is a genuine issue of material fact concerning whether the formation of the relationship between Garcia and Doe while Garcia was an employee of the hospital and Doe was a patient, is a substantial factor in the causation of Doe’s injuries.

VI.

CONCLUSION

We vacate the summary judgment and remand the case for further proceedings.

We award Doe costs, but not attorney fees, on appeal.

TROUT, C. J., and SILAK and WALTERS, JJ., concur.