I recently read the sad story in a newspaper of a patient at Kaweah Delta hospital who was raped by a hospital employee. The employee pled guilty to this rape and to the rape of another patient. He will likely be sentenced to 25 years for the crimes.
The patient is now suing the rapist and the hospital. Of course, the focus of the litigation will be on the employer with the deep pocket. This raises the question -- when is an employer liable for the acts of its employees? Two different theories of liability are used to impose liability on an employer because of the bad acts of employees.
Liability attaches if the employee is acting in the scope of employment when (s)he engages in the wrongful act. This is called vicarious liability. It literally means the employer stands in the shoes of its employee.
It might be difficult for the patient to win on this theory. Raping or engaging in any criminal act is not within the scope of employment for a hospital employee. There are several reported cases in California where employers are not liable for the criminal acts of their employees, even in the setting of a hopsital or policing, where abuse can more easily occur. So I have my doubts that Kaweah Delta will be held vicariously liable for the acts of the rapist.
An employer can also be liable for the acts of its employee when the employer's behavior contributed to the incident. We typically refer to this as negligent hiring, supervision or retention. Rather than vicarious liability, the employer is liable for its own actions in creating a dangerous situation where harm occurred.
This is probably the theory on which the victim's case will rest. The victim's lawyer claims that at least two other people were raped at the hospital during the time the perpetrator was employed. The lawyer predicted he would find a "swath of women" who have been sexually assualted.
But it won't be enough for the plaintiff to show that attacks occurred. The plaintiff must show that the hospital was negligent in its hiring or supervision of the perpetrator. There must be some action, or inaction, on the part of the hospital to impose liability.
It will be fascinating to see how the evidence develops in the case and what will happen if the case goes to trial.