On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-961-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Waugh.
Fourteen-year-old D.T. performed volunteer work at defendant Hunterdon Medical Center (HMC), a full service hospital, near her home. In February 2003, D.T. and J.H., a nineteen-year-old employee, began a flirtatious relationship; by late summer or fall 2003, they were engaged in a sexual relationship that continued until October 2004. J.H. was arrested, indicted and pled guilty to one count of second degree sexual assault for which he received a three-year term of imprisonment subject to a one-year period of parole ineligibility. D.T. and her parents filed a complaint against J.H. and HMC in which they asserted twelve causes of action, including negligent hiring, supervision and retention of J.H.; sexual abuse; common law assault; common law battery; negligent infliction of emotional distress; and intentional infliction of emotional distress. Generally, plaintiffs alleged that HMC had a non-delegable duty to protect its minor volunteers from the actions of adult employees. We review an order granting summary judgment in favor of HMC. We affirm.
The facts viewed in the light most favorable to plaintiffs reveal that HMC has a formal volunteer program in which approximately 300 adults and 150 teenagers not less than fourteen years of age participate. Every volunteer is required to participate in a training program that includes instruction about hospital policies, including its policy against any form of sexual harassment. Every participant also receives a handbook and is required to take a multiple-choice test on HMC policies.
D.T. applied to serve as a volunteer at HMC, and commenced her volunteer work in Spring 2002. D.T. also received instruction in patient care and transportation of patients.
HMC hired J.H. on October 21, 2002, as a transporter at a pay rate of $9.14 an hour. He was nineteen when he commenced his employment at HMC. He had no criminal history and good references. As a transporter, he moved patients and patient-related items throughout the hospital. According to his job description, he reported to the supervisor/dispatcher and shipping/receiving/supply distribution technicians, and directed adult and teen volunteers.
On a typical day, between 8:00 a.m. and 5:00 p.m., eight transporters were on duty. Each transporter received an assignment from the transport dispatcher and was expected to return to the dispatcher after completion of each assignment. After 5:00 p.m., a nurse supervised the transporters from a remote location. Usually two transporters remained on duty until 7:00 p.m.; one would stay until 10:30 p.m. At some point, J.H. switched to the night shift, working from 2:00 p.m. to 10:30 p.m.
D.T. chose to volunteer in the transport department because a friend volunteered there as well. She usually worked during late afternoons and early evenings. She met J.H. while assigned to the transport department. Between January 2003 and February 2003, D.T. and J.H. began exchanging emails and text messages. She admitted that the two flirted, and she may have given him the impression that she liked him.
D.T. testified that her first sexual encounter with J.H. occurred in a stairwell at the hospital on a Saturday night in February 2003. At the request of J.H., she went to the hospital that night even though she was not scheduled to work that evening, and she did not report to the volunteer office when she arrived. J.H. approached her from behind in a stairwell, put his hand on her waist, and started to touch her. In a certification in opposition to defendant's motion for summary judgment, D.T. stated J.H. "repeatedly groped [her] intimate parts, breasts, and/or buttocks."
Although she testified at her deposition that she felt confused by this encounter, the couple engaged in other sexual acts on and off hospital premises. To facilitate further contact with her, J.H. asked D.T.'s supervisor to assign D.T. and her friend to different shifts. The request was declined. In Summer or Fall 2003, D.T. and J.H. engaged in their first act of sexual penetration. This encounter did not occur at the hospital. Rather, D.T. sneaked out of her house and met J.H. on a local soccer field.
The sexual relationship between D.T. and J.H. continued until October 2004. During this time, they had sexual relations on and off hospital premises. She knew the relationship was against hospital policy, and both tried and succeeded in keeping the relationship secret, until D.T. told her mother in October 2004. At that time, D.T. was sixteen. She admitted that J.H. once showed her and other volunteers a gun he carried in the trunk of his car, but D.T. insisted J.H. never threatened her with the gun.
D.T.'s parents reported the relationship to the police. J.H. was arrested at work in December 2004.*fn1 HMC suspended J.H. from his employment and he resigned on January 24, 2005. Although he had attendance issues and occasionally disappeared for periods of time during a shift, his absences were reported to supervisors, and he was considered a "likeable guy."
D.T. and her parents filed a twelve count complaint seeking compensatory and punitive damages against HMC and J.H. In general, they alleged that D.T. had a reasonable expectation that she would be working in a safe environment and free from becoming a victim of a crime or sexual harassment. Specifically, they alleged HMC breached their trust by negligently hiring, supervising, and retaining J.H. (Count I); HMC and J.H. engaged in extreme and outrageous conduct intended to produce emotional distress or acted recklessly in deliberate disregard of a high degree of probability that emotional distress would occur (Count V); and HMC and J.H. acted negligently with a high probability that D.T. would suffer emotional distress (Count VI). Plaintiffs also alleged HMC had a non-delegable duty to protect D.T. from the sexual conduct in which she engaged with J.H., and HMC was vicariously liable for the acts of its agent, J.H., even those acts were beyond the scope of his employment (Count VII); HMC had a "special non-parental relationship" with D.T., and it failed to exercise reasonable care to protect her from "unreasonable risk of injury" (Count VIII); HMC requested D.T. "to assist voluntarily in performing tasks" for its benefit and failed to exercise reasonable care under the circumstances (Count IX); and HMC and J.H. engaged in a pattern of racketeering activity contrary to N.J.S.A. 2C:41-1(a)(d) and (e) and N.J.S.A. 2C:34:3(b)(2) (Count X). D.T.'s parents also asserted a Portee*fn2 claim (Count XI) and a loss of consortium claim (Count XII) against HMC.*fn3 By order dated January 8, 2008, Judge Accurso granted a motion to dismiss the negligent hiring claim of Count I, Count V (intentional infliction of emotional distress), Count IX (negligent taskmaster), Count X (RICO), and Count XI (the Portee claim). Following discovery, HMC filed a motion for summary judgment.
Judge Edward M. Coleman granted summary judgment in favor of HMC. In his written opinion, the judge commenced his discussion with those claims founded on a respondeat superior theory of liability for the actions of J.H. The judge noted that to support liability plaintiffs must prove that a master-servant relationship existed between HMC and J.H. and that the actions of J.H. occurred during the course of his employment. Judge Coleman held that J.H. was not acting within the scope of his employment when he engaged in a sexual relationship with D.T. The judge found J.H. was not hired to perform this kind of conduct and his employer did not condone this type of conduct. Furthermore, the conduct was not authorized by HMC, it was illegal, and "a major departure from the work J.H. was hired to perform." J.H.'s conduct did not benefit HMC, and the relationship was not commenced by a purpose to serve the interests of HMC. The judge also emphasized that the conduct did not occur solely on HMC's premises.
Judge Coleman also rejected the contention that HMC could be considered liable for conduct beyond the scope of J.H.'s employment on the basis that J.H.'s conduct created a hostile work environment. The judge noted such liability is dependent on the actor being a supervisor and J.H. could not be considered a supervisor of D.T. or any other employee. The judge found J.H. had no authority to fire anyone, assign any volunteer to a department or shift, and the sexual misconduct was not due to any supervisory power J.H. exercised over D.T. Rather, the judge found D.T. readily admitted she viewed the relationship as a romantic relationship not anything foisted on her. In fact, the judge noted D.T. never alleged sexual harassment by J.H.
Judge Coleman also found no basis to extend liability pursuant to Hardwicke v. American Boychoir School, 188 N.J. 69 (2006), for actions outside the scope of employment based on an in loco parentis position of defendant HMC. The judge noted HMC cannot be considered a boarding school, as in Hardwicke, and did not occupy an in loco parentis position to D.T.
Judge Coleman also found no basis in law to support liability of HMC due to negligent or reckless conduct by it as an employer. According to plaintiffs, alleged negligent or reckless conduct created an unsafe place to work or permitted the sexual relationship between one of its employees and one of its teenage volunteers to progress undetected. The judge, however, found liability due to sexual harassment program failures unfounded because J.H. did not use any authority granted by HMC to commit any unlawful acts against D.T. Highlighting that an employer may be liable for co-worker harassment only when employer negligence prevents detection of the harassment or prevents remedial action, Judge Coleman found the record contained no evidence of negligence by HMC. He emphasized that D.T. encouraged the admittedly illegal acts by J.H., and "the two teenagers were doing everything in their power to hide the relationship."
Furthermore, D.T.'s status as an invitee on the HMC premises did not create an absolute duty by HMC to provide a safe workplace. The judge noted the record contained no evidence that HMC knew or should have known from experience that there was a likelihood of harm to D.T., or anyone else on their premises, by J.H. Furthermore, HMC took proactive measures by establishing policies to prevent employees from suffering unwanted attention from other employees.
Judge Coleman also granted summary judgment on the remaining claims asserted in Count I: negligent supervision and negligent retention. The judge found the record contained no evidence that J.H. engaged in violent or aggressive behavior. Plaintiffs failed to adduce any evidence that HMC knew or had reason to know of any particular threat of harm to others by J.H. He had no prior criminal history. The prosecutor considered his risk of recidivism low. The only negative performance information obtained by plaintiffs about J.H. related to tardy responses to some pages by his supervisors and some attendance issues. Nothing suggested he would engage in criminal sexual behavior with a teenage volunteer. Therefore, the harm alleged by D.T. was not reasonably foreseeable by J.H.'s employer.
Judge Coleman also dismissed the negligent infliction of emotional distress claim (Count VI). The judge found no amount of security, such as additional security officers or cameras, would have prevented D.T. and J.H. from engaging in a sexual relationship. He emphasized that the sexual conduct occurred on and off the HMC premises.
The judge also found no basis for a special relationship between D.T. and HMC. Without such a relationship, the judge held that the child left unsupervised by non-parent claim (Count
VIII) must fail. Finally, the judge dismissed the loss of consortium claim (Count XII) because it was a derivative claim and all underlying ...