Nursing Assistant Rapes 16-Year-Old Patient in Her Room
	Employer Held Liable For the Acts of Employee Tortuous Conduct Connected to Job Duties

When an employee commits a misdeed during the course of his employment employer may be held liable for his tortuous conduct. In this case, the Court of Appeals of Louisiana spelled out some of the factors that would be considered in determining whether the employer is liable.

Facts : At the age of 16, Rachelle Harris was committed to the psychiatric unit of Baptist Hospital following a suicide attempt on July 4, 1988. On July 16, 1988, Ms. Harris was raped after midnight by a hospital nursing assistant who was a full-time employee in the psychiatric unit.

Ms. Harris testified that the nursing assistant, Raymond Steward was touching her when she woke up. He persisted although she cried and told him she was a virgin. Ms. Harris related that she went into the bathroom to try to get away from him and she washed up. Ms. Harris stated that fifteen minutes later Mr. Steward came into the bathroom which had no lock and he sexually attacked her. After Mr. Steward left the bathroom, Ms. Harris went to the nurse's station and asked to use the phone. Ms. Harris then went to the room of another patient, Rozanna Moore, and told her she had been raped. Ms. Moore testified that Rachelle was shaking, upset and in hysterics.

While Ms. Harris went to give a specimen, Mr. Stewart went into Ms. Moore's room. He showed Ms. Moore pictures of his wife and children in his wallet and asked her to calm Ms. Harris down. Ms. Moore asked him to get her a phone, which he put outside Ms. Moore's door. Ms. Moore called her mother who called Ms. Harris's mother. Meanwhile, Mr. Steward disappeared from the floor. His employment terminated on July 6, 1988 for abandoning his job without notice.

Ms. Harris's mother, Ernestine Samuels, finally spoke to Ms. Harris and went to the hospital and found her daughter with a nurse. Dr. Isabelle L. Ochsner performed a rape examination in the emergency room around 6:30 a.m. She found no evidence of physical trauma but testified that Rachelle Harris was hysterical and had to be sedated.

The specimen from the police crime lab examination of Ms. Harris's clothing tested positive for male sperm. A few weeks later Ms. Harris was transferred to Coliseum Medical Center. Ernestine and Leotha Samuels, joint tutrixes of Rachelle Harris, filed suit against Raymond Stewart, Baptist and its insurer on November 18, 1988.

In January, 1989 Raymond Stewart entered a plea of guilty to simple rape in Orleans Criminal District Court. Prior to trial, Raymond Stewart was dismissed as a defendant in the present civil action.

After a jury trial on October 17 and 18, 1989, the trial court entered an award in favor of Rachelle Harris for $ 450,000. On appeal, defendants contend that they are not vicariously liable for the intentional actions of Raymond Steward.

Court Decision: Baptist argues that it is not vicariously liable for the actions of its employee whose duties did not include sexually-oriented activity. Baptist maintains that there was no relationship between the employee's act and the employer's business; the employee was performing personal activity outside the tasks of a nursing assistant; and there could be no reasonable expectation that the employee would commit an act of rape.

Employers are answerable for the damage caused by their employees in the exercise of the functions in which they are employed. When determining whether the employer is liable for the acts of an employee, factors to be considered are whether the tortuous act was: (1) primarily employment rooted; (2) reasonably incidental to the performance of the employee's duties; (3) occurred on the employer's premises; and (4) occurred during hours of employment. It is not necessary that all factors be met in order to find liability, and each case must be decided on its merits.

In the present case Brody Smith, Personnel Director of Baptist, testified that Baptist
had performed a background check of Raymond Steward, which showed no criminal record and no unfavorable responses from former employees. The employee's background included an honorable discharge from the United States Army. Further, the employee had not been involved in any other unfavorable incidents during his employment by Baptist from February 9, 1988 until the date of the assault in July, 1988. Baptist was not negligent for employing Stewart as a nursing assistant in the psychiatric unit. However, vicarious liability is imposed upon the employer without regard to his own negligence or fault; it is a consequence of the employment relationship.

The sexual assault occurred on the premises in the psychiatric unit while Stewart was on duty from 11:00 p.m. until 7:00 a.m. Ensuring a patient's well-being from others, including staff, while the patient is helpless in a locked environment is part of the hospital's normal business. Taking care of the patient's well-being is part of the duties of a nursing assistant.

The tortuous conduct committed by Stewart was reasonably incidental to the performance of his duties as a nurse's assistant although totally unauthorized by the employer and motivated by the employee's personal interest. Further, Stewart's actions were closely connected to his employment duties so that the risk of harm faced by the young female victim was fairly attributable to his employer, who placed the employee in his capacity as a nurse's assistant and in a position of authority and contact with the victim.

The Court affirmed the decision of the trial court determining that Stewart was acting within the scope of his employment and that Baptist was vicariously liable.

Harris v. Southern Baptist Hospital 594 So. 2d 571; 1992 La. App. 

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