Rodebush Ex Rel. Rodebush v. Oklahoma Nursing Homes, Ltd.

SIMMS, Justice,

dissenting:

I must respectfully dissent. Not only do I believe that the nursing home is not liable for the intentional tort of its employee, but I am also troubled by the majority’s determination that the cap on punitive damages may be lifted pursuant to 23 O.S.Supp.1986, § 9 under the facts of this case. In my estimation, this is, at best, a case of negligent hiring and training, and presents nothing further in the way of tort liability on the part of the nursing home.

I.

RESPONDEAT SUPERIOR LIABILITY

It is settled law that in order to hold an employer liable for the intentional tort of its *1253employee, the plaintiff must show first, that the relation of master and servant existed at the time and second, that the tortious act was committed within the scope of his authority. Allison v. Gilmore, Gardner & Kirk, Inc., 350 P.2d 287, 298 (Okla.1960); Tulsa General Drivers, Warehousemen, and Helpers Union v. Conley, 288 P.2d 750 (Okla.1955). The majority recognizes the general rule that it is not within the scope of employee’s employment to commit an assault on a third party, citing Hill v. McQueen, 204 Okla. 394, 230 P.2d 483 (1951), and Tulsa General Drivers, Warehousemen, and Helpers Union v. Conley, supra.

The majority finds, however, that the facts of this ease place it within the exception that liability will be imposed on the master where the servant commits an assault in “furtherance of’ and “fairly and materially incident to” his master’s business, and in doing so it likens this situation to those in decisions such as Hill v. McQueen, supra, Mistletoe Express Service, Inc. v. Culp, 353 P.2d 9 (Okla.1959), and Russellr-Locke Super-Service Inc. v. Vaughn, 170 Okla. 377, 40 P.2d 1090 (1935).

Those cases however, are clearly distinguishable from the circumstances presented here and raise issues not before us. In Russellr-Locke, for instance, we held the employer, an automotive battery sales and service business, was liable for its employee’s assault because the facts warranted the jury’s finding that the employee had been “acting in behalf and under instructions of’ the employer which had sent him to. the plaintiffs place of business to have plaintiff pay for a battery or retrieve the battery for which plaintiff had failed to pay. When the employee attempted to take the battery out of plaintiffs vehicle, plaintiff pulled him out of the car and a fight ensued. There, the employee was furthering his master’s interest and engaged in following his instruction when the fight occurred which, we held, was therefore incident to performing the master’s business. Noting there that the exception applies only when the employee’s action is within the scope of employment, the Court stated:

“ ‘[A]n act is within the “course of employment” if (1) it be something fairly and naturally incident to the business, and if (2) it be done while the servant was engaged upon the master’s business and be done, although mistakenly or hi 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, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account.’” 40 P.2d at 1094 (quoting Mechem on Agency, § 1960). See also Ada-Konawa Bridge Co. v. Cargo, supra; Brayton v. Carter, 196 Okla. 125, 163 P.2d 960 (1945); Patsy Oil & Gas Co. v. Odom, 186 Okla. 116, 96 P.2d 302 (1939).

The case at bar also differs from Mistletoe Express Service, Inc. v. Culp, 353 P.2d 9 (Okla.1959), in which we found the employer, a common carrier, liable for the intentional tort of its employee, a driver known as “Slugger”, because the employer was aware of the employee’s antagonistic, quarrelsome, pugilistic and hot-tempered nature and deliberately sent him with instructions to return an item which had previously been refused. The evidence showed:

“Mistletoe was expecting bad feelings about its return of the tube; and Mistletoe knowing this deliberately sent [Slugger] with specific instructions into a situation which, because of his known violent nature, was almost certain to trigger his temper and cause the very kind of result produced in this case.” 353 P.2d at 15.

In stating the applicable law, the Court noted:

“In other words, the fact that at the time of the assault upon the third person the employee or agent was about his employer’s business is not sufficient to affix the liability for the resulting damages upon the employer, but it must be shown that the act complained of was done for the purpose of doing the work assigned to him.” 353 P.2d at 16 (Emphasis added).

*1254The same cannot be said for the case at bar, however. The employee was attempting to bathe the patient. Use of such force as slapping was against the policy of the nursing home. This is not a case where the employee was furthering the employer’s interests, or performing under the employer’s instructions. At most, the evidence shows that the employee likely slapped the patient as a personal reaction to the patient’s combativeness. Whatever the cause, the employee was not acting within the scope of his employment and authority when he slapped the patient and the employer cannot be held responsible for the intentional tort. In short, while bathing the patient was within the scope of his employment, slapping him was not.

The nursing home does not contest on appeal that it was negligent in failing to properly investigate potential employees and train this employee. Whether the employee was properly trained in how to handle a combative Alzheimer’s patient or not, there is no evidence to warrant a finding that assaulting the patient was within the scope of the employee’s authority or employment. The employee’s actions here were more in line with those of the employee/bus driver in Oklahoma Ry. Co. v. Sandford, 258 P.2d 604 (Okla.1953), in which the bus driver became angry at the driver of a car, exited from the bus, and assaulted the other driver. In Sandford we determined that the bus driver stepped aside from his employment to do an act which was neither beneficial to nor in the best interests of his employer. As a result, we concluded that the employer/bus line was not liable for the assault upon the automobile driver by the bus driver.

So too, in Allison v. Gilmore, Gardner & Kirk, Inc., 350 P.2d 287, 293 (Okla.1960), an action brought by plaintiff who was assaulted by the employee/driver of defendant when plaintiff attempted to test the temperature of the gasoline in defendant’s truck, this Court concluded “there was nothing connected with the employment of the truck driver, King, whose duties were to drive the truck of the defendant and deliver gasoline, that would warrant his fighting with plaintiff and did not come within the scope of his employment.” See also, Tulsa General Drivers, Warehouse-men, and Helpers Union v. Conley, supra, where we held that a union was not liable for the assault by one of its hired picketers upon a worker for the business being picketed because the picketer’s actions could not “properly be anticipated as an incident to the exercise of ordinary authority to act as a peaceable picketer.”

Although the nursing home may be liable to plaintiffs on the theory that the nursing home negligently failed to investigate its employee’s background to determine whether he had a history of violence, a liability which the nursing home does not dispute, that failure to investigate amounts to negligence only. The defendant cannot be held responsible for the intentional assault upon a patient by its employee where it had no knowledge that the employee had a propensity to violence and where the employee’s conduct was outside the scope of his authority and employment. Tulsa General Drivers, Ware-housemen, and Helpers Union v. Conley, supra.

II.

PUNITIVE DAMAGES

This Court has never considered a case in which the cap on punitive damages was lifted pursuant to the amended provisions of 23 O.S.Supp.1986, § 9, and the case before us is not an appropriate one for allowing limitless punitive damages.

In general, § 9 permits a jury to award punitive damages in tort actions where the jury finds that the defendant was guilty of conduct evincing, inter alia, a wanton or reckless disregard for the rights of another. Punitive damages are, however, limited to the amount of the amount of actual damages awarded in most cases. Only when the trial court finds on the record that clear and convincing evidence shows that the defendant is guilty of such conduct may the cap on punitive damages be lifted. The case before *1255us does not present a situation in which the Legislature intended to apply the § 9 exception to the cap.

When the Legislature chose to limit punitive damages and to provide for the lifting of that limitation under only extreme circumstances, it further provided that the provisions of § 9 “shall be strictly construed.” 23 O.S.Supp.1986, § 9(B). The majority fails to recognize this vital provision.

This Court has long held that because of the highly penal nature of punitive damages, they should not be lightly imposed. Slocum, v. Phillips Petroleum Co., 678 P,2d 716 (Okla.1983). In addressing punitive damages, this Court stated the long-standing law in Oklahoma as follows:

“To entitle a plaintiff to recover exemplary damages in an action sounding in tort, the proof must show some elements of fraud, malice or oppression. The act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must be the result of such gross negligence-such disregard of another’s rights-as is deemed equivalent to such intent.
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Exemplary damages are allowed after the trier of the fact determines the guilt of the transgressor of acts not tolerated by society. Exemplary damages are highly penal and punishment thereof should not be lightly imposed.” 678 P.2d at 719.

In Slocum, we determined that although Phillips Petroleum Company was negligent for failing to ascertain who owned the property across which they were constructing a pipeline, there was no evidence that Phillips’ acts were actuated by or accompanied with an evil intent or the result of gross negligence when it trespassed and constructed the pipeline three feet outside of its valid easement area. Thus, we held the trial court erred in submitting the issue of punitive damages to the jury.

In the case at bar, the jury could have found that the nursing home was negligent in failing to investigate when hiring the employee or in failing to properly train the employee. However, there was not clear and convincing evidence of such recklessness or gross negligence as to warrant the lifting of the cap on punitive damages.

Although the actions of the employee in the case at bar could be characterized as malicious or oppressive, those actions cannot be imputed to the nursing home. As noted in Part I above, the nursing home is not responsible for the actual damages resulting from the nurse aide’s personal attack because he was not acting within the scope of his authority and employment. The simple fact is that the trial judge determined that there was clear and convincing evidence of conduct on the part of the employee which could be described as reckless and wanton, but the majority opinion wrongly allows such conduct to be imputed to the employer.

If there was evidence suggesting the nursing home was liable for punitive damages, such evidence would necessarily be in the form of gross negligence or reckless disregard of another’s rights, and the record simply does not contain clear and convincing evidence of such. Thus, the trial court erred in allowing the jury to award punitive damages over the amount of actual damages awarded.

Additionally, the majority has refused to consider a crucial issue concerning the verdict forms utilized on the basis of the parties failure to raise it. See footnote 2 of the majority opinion. A cursory review of the record discloses that there is error apparent on its face, and I believe the matter constitutes fundamental error. The verdict form shows that the jury found for plaintiff on the negligent hiring and training theory (Count 1) and on the intentional tort theory (Count 2). However, it is unclear whether the $50,-000.00 awarded was for Count 1 or Count 2.1 This is crucial because punitive damages may *1256only be given when actual damages have been awarded. Moore v. Metropolitan Utilities Co., 477 P.2d 692 (Okla.1970); Phillips Machinery Co. v. LeBlond, Inc., 494 F.Supp. 318 (N.D.Okla.1980).

The verdict form itself states that a punitive damage award may not be based upon a finding for plaintiff on Count 1. Therefore, if the $50,000.00 was awarded as damages for Count 1, the punitive damages award cannot stand. Only if all or a portion of the $50,-000.00 actual damages are awarded for Count 2 may the jury even consider punitive damages. There is nothing in the record to indicate whether any of the actual damages were awarded for Count 2. The parties and this Court must resort to speculation in order to determine upon which Count the punitive damages award was based, and this Court has long held that a verdict cannot be based upon mere speculation and conjecture. Elms v. Chicago, Rock Island, and Pacific Railroad Co., 375 P.2d 886 (Okla.1962). Because the verdict form is unclear as to which Count the punitive damages are based upon, the verdict and judgment cannot stand. I would reverse the judgment of the district court and remand this cause for retrial.

. The jury awarded $50,000.00 as actual damages to the plaintiff, despite the parties stipulat*1256ing and the patient’s physician determining that medical treatment was not necessary. The jury then awarded $1,200,000.00 in punitive damages.