concurring in part; dissenting in part. Although I agree with the majority to reverse and remand regarding negligent supervision, I respectfully dissent from the majority regarding the issue of respondeat superior.
When considering if an employer is liable for the acts of its employee, Arkansas follows the doctrine of respondeat superior. See Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997). This doctrine assigns liability to expected acts that are incidental to the employee’s duties, or that benefit the employer. See id. at 136, 948 S.W.2d at 86. In other words, liability attaches when an employee commits a foreseeable act “within the scope of his employment at the time of the incident.” See id. at 137, 948 S.W.2d at 86. The scope of employment includes acts done with the “object and purpose of the enterprise,” and not acts that are strictly personal. See id., 948 S.W.2d at 86.
In Porter, the appellee’s radiology technician unzipped the appellant’s pants, examined around his testicles, and performed oral sex on him during the course of a gallbladder ultrasound. Although Porter urged the court to analyze his case using a common carrier, job-created power, or reasonably incidental theory of liability, the court declined to do so. Instead, it chose to follow the theory of master-servant liability, which has been followed in Arkansas since 1910. See Porter, supra. The court then held that the employer was not Hable because the technician’s act of performing a homosexual assault on a patient was purely personal and not foreseeable. See Porter, supra.
The facts in the instant case are readily distinguishable from the facts presented in Porter. Unlike the radiology technician in Porter, a substantial portion of McConnaughey’s job as a certified nurses’ aide (”CNA”) in appellee’s long term care facility involved providing custodial care to patients, including the assigned duty of regularly washing and cleansing the genital area of female patients. While it is plainly beyond the scope of employment for a radiology technician to touch a male’s genital area with his mouth while performing an ultrasound procedure of the patient’s gallbladder, it is certainly within the scope of employment for a certified nurse’s aide — of any gender — to clean and wash a person’s genitals with his hands while providing custodial care. The factual inquiry is not simply whether such touching of the patient’s genital area is within the scope of employment, but whether, given the plain proof that certified nurses’ aides are charged with doing so, McConnaughey’s conduct was “strictly personal.”
It is also important to note that in Porter, there was no evidence of a custodial relationship. Here it is not disputed that Ms. Elder was an immobile quadriplegic in the complete custody of the defendant. Also, the patient in Porter was only under the control of the clinic momentarily and even then, he remained alert and ambulatory. Here, Ms. Eider was unable to control even her basic movements and was totally dependent on appellee for personal hygiene. While the technician in Porter was an experienced worker who was personally known to the physician and had worked in health care without blemish for over ten years, McConnaughey was a new hire with no health care experience who had previously worked as a janitor and reportedly Hved in his car.
In Life & Cas. Ins. Co. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966), our supreme court held that a master is Hable for the intentional torts of a servant when the servant’s conduct is not unexpectable in light of the servant’s duties. Padgett involved an insurance agent who assaulted and beat a customer with a heavy stick of firewood after attempting to collect insurance premiums. The court held that it was not unforeseeable for a dispute to arise within the scope of the insurance agent’s employment, which included collecting insurance premiums from customers. Here, McConnaughey was a CNA. His primary responsibilities included providing intimate, personal care to immobile patients. Clearly, it is not unforeseeable that a CNA charged by his employer with cleansing the genitalia of patients may abuse that responsibility.
Our supreme court again examined respondeat superior in Gordon v. Planters & Merchants Bankshares, Inc., 326 Ark. 1046, 935 S.W.2d 544 (1996). There, a bank official improperly charged-back a check against his former partner’s account because the official thought he was entitled to half of the check that was made payable to the partnership. Although the bank argued that respondeat superior did not apply because the official acted for his own personal pecuniary interest, our supreme court disagreed and determined that the official used his position at the bank to further his own purpose and acted within the scope of his employment when he caused the charge-back. Because the official was carrying out the “object and purpose of the enterprise,” the court held that respondeat superior applied. It further observed that the president of the bank demonstrated a “conscious indifference” to the employee’s acts by refusing to intervene in the matter and instructing the customer to resolve the matter directly with the employee.
Similar to the rationale expressed in Planters, it is not dispositive that McConnaughey’s act of sexually manipulating Elders with his fingers may have been for his own sexual gratification. Rather, the issue is whether McConnaughey used his position as a CNA to further his purpose so as to warrant a finding that he acted within the scope of his employment when he sexually assaulted Elders under the pretext of cleaning her. The nursing home’s policy of allowing male certified nurses’ aides to attend immobile female patients and the significant lapse of time between Foster reporting the incident and the nursing home’s investigation also raise genuine issues of fact as to whether “conscious indifference” or ratification occurred.
In sum, a genuine issue of fact exists as to whether McCon-naughey’s actions were a foreseeable act incident to his duties as a certified nurse or if they were “strictly personal.” Although the trial court concluded that the affidavits provided by appellee established that McConnaughey’s actions were not within the scope of his duties as a CNA, and that appellee had no knowledge or indication that McConnaughey would act in the manner that he did, appellant met proof with proof with an affidavit by Pamela Taylor Smith, a health care consultant, whose practice focused on the care of elderly and severely disabled persons. Smith noted that it was appellee’s policy to have male aides attend patients alone even while the male aides were still student trainees, and that the appellee’s practice of permitting unaccompanied access to helpless female patients by male aides with little or no previous health care experience was not in keeping with accepted nursing practice. In view of Smith’s affidavit, a genuine issue of material fact arose concerning whether McConnaughey’s actions were foreseeable.
It is certainly foreseeable that a person with such direct and intimate access to helpless patients might act improperly, even if well trained and supervised. It is also foreseeable that the improper conduct could involve sexual misconduct or abuse. Where an employer permits such access by poorly trained, unsupervised, and unmonitored staff as a matter of practice and policy contrary to accepted clinical norms, I see no reason why these facts should not be considered by a trier of fact in determining whether to impose liability under ordinary respondeat superior analysis. We should not reject that conclusion merely because the same or similar facts also create a genuine issue of material fact concerning negligent supervision.
The purpose of a summary judgment hearing is not to try the issues, but rather to determine if there are any issues to try. See Muddiman v. Wall, 33 Ark. App. 175, 803 S.W.2d 945 (1991). We need only decide if the grant of summary judgment was appropriate, considering whether the evidentiary items presented by the moving party in support of the motion left a material question of fact not answered. See Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). Appellant has met proof with proof that genuine issues of material fact remain as to respondeat superior and negligent supervision Therefore, I would reverse the trial court’s decision to grant summary judgment on both theories.
I am authorized to state that Judge PITTMAN joins in this opinion.