On appeal from the Superior Court, Law Division, Somerset County.
Furman, Dreier and Stern.
We affirm substantially for the reasons stated by Judge Arnold in his opinion published at 214 N.J. Super. 670 (1986) (decided Aug. 15, 1986). We differ with Judge Arnold only in that we would rest our decision primarily on defendants' immunity from vicarious liability in accordance with the definition of "scope of employment" in Restatement, Agency 2d § 228(1)(a) at 504 (1958):
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
See DiCosala v. Kay, 91 N.J. 159, 169 (1982), approving the Restatement definition.
Defendant Lawrence was employed by codefendants, both public entities, to perform therapy as a social worker therapist. He engaged several times in sexual intercourse with plaintiff, his client, over more than a year. Sexual relations between him and plaintiff violated the Code of Ethics of the National Association of Social Workers, were not an accepted therapy technique and were prohibited by his employers. In his deposition Lawrence admitted that sexual relations with his client constituted improper conduct on his part, were "never meant to be part of therapy," could not be justified as part of therapy, and were not used "as a treatment technique in any way." He answered "Nothing" to the question what he thought he would accomplish "by having a sexual relationship with her."
We agree with Judge Arnold that, as a matter of law, sexual relations with plaintiff were not conduct of the kind he was employed to perform within the scope of his employment.*fn1 In the absence of a prima facie showing of vicarious liability, the issue of immunity under the Tort Claims Act, N.J.S.A. 59:2-10, for "willful misconduct" of a public employee need not be reached.
Codefendants have cross-appealed from the denial of their motion for summary judgment dismissing the cause of action against them for negligent supervision of Lawrence. We reject their argument as clearly without merit; a factual issue of primary liability was raised on the record, including the expert opinions of Dr. Willis and Dr. Yaker, see Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954); DiCosala, supra 91 N.J. at 172.