On June 20, 1986 this court granted a motion for summary judgment brought by defendants County of Somerset and Richard Hall Community Mental Health Center dismissing plaintiff's complaint and defendant Lawrence's crossclaims against Somerset County and the community mental health center which alleged that these defendants were vicariously liable for defendant Lawrence's conduct under the doctrine of respondeat superior. On August 15, 1986, this Court granted the motions of plaintiff and defendant Lawrence for reconsideration pursuant to R. 4:50-1(f). This opinion supplements the court's oral decision.
The issue presented, whether the sexual relationship between a therapist and a patient falls within the scope of employment so as to subject the therapist's employer to vicarious liability, is one of first impression in New Jersey. The few courts which have considered the question have arrived at conflicting results. For the reasons expressed herein, this court finds that such conduct is not within the scope of employment so as to subject the employer to respondeat superior liability as a matter of law.
Defendant, H. David Lawrence, was a social worker-therapist employed by defendants, County of Somerset and Richard Hall Community Mental Health Center. Plaintiff, Ann E. Cosgrove, was under his care and treatment from November 1978 to June 1983. A sexual relationship developed between therapist and patient in March 1982 and continued until the therapy ceased. The initial physical contact which led to the sexual relationship allegedly began as a method to relax plaintiff when she began to exhibit suicidal tendencies during a "depressive crisis."
The experts in this case basically agree that the sexual relationship began as a result, in part, of the mishandling of "transference," a universal psychotherapeutic phenomenon and that defendant Lawrence fell prey to a foreseeable occupational hazard. Defendant Lawrence asserts that he engaged in sexual relations for the purpose of therapy only and that he never looked forward to engaging in sexual relations with plaintiff. It is further asserted that plaintiff's specific personality disorder is the type which "lends itself to the kind of inappropriate sexual behavior" admitted to here. Plaintiff and defendant engaged in sexual intercourse, at numerous times and places, including defendant's office at the Richard Hall Community Health Center, defendant's home and public parks. It is conceded by all parties that this conduct is in violation of guidelines set forth in the code of ethics of the National Association of Social Workers.
The gravamen of plaintiff's complaint is that defendant Lawrence deviated from accepted standards of practice by seducing and violating her. Plaintiff alleges that the county and the mental health center are liable to her under the doctrine of respondeat superior. Plaintiff also alleges that the county and the health center are liable for the negligent hiring and supervision of defendant Lawrence. This court granted the motion for summary judgment brought by the county and the health center on the respondeat superior claims, holding that such conduct was not authorized, specifically prohibited and too little actuated by a purpose to serve the master. See Restatement,
Agency 2d, § 228 at 504 (1958). The claims based on negligent hiring and supervision of defendant Lawrence were not dismissed.
Plaintiff and defendant Lawrence assert that summary judgment is inappropriate because there is a fact question as to whether defendant Lawrence acted within the scope of his employment as he characterizes his actions as solely in pursuit of his employer's ends. They correctly point out that summary judgment should not be granted even if the evidence opposing the claimed fact is incredible, and that summary judgment is especially difficult to sustain where willfulness, intent or good faith are at issue. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75-76 (1975). See also Marley v. Palmyra Bor., 193 N.J. Super. 271 (Law Div.1983) (issue of whether employee acted within scope of employment for jury).
The doctrine of respondeat superior renders an employer liable for the torts of an employee only when the latter was acting within the scope of his or her employment. DiCosala v. Kay, 91 N.J. 159 (1982). In Comm'l Union Ins. Co. v. Burt Thomas-Aitken Constr. Co., 49 N.J. 389, 392, n. 1 (1967), the New Jersey Supreme Court adopted the Restatement definition of "scope of employment." That definition is set forth in § 228 of Restatement, Agency 2d (1958) as follows:
(1) Conduct of a servant is within the scope of employment ...