Burton v. Chen

1

2023 UT 14

Julie Burton, Appellant, v. Michael Chen, D.O., and Alta Pain Physicians, LLC, Appellees.

No. 20210873

Supreme Court of Utah

June 29, 2023

Heard January 9, 2023

On Appeal of Interlocutory Order Third District, Salt Lake The Honorable Amber M. Mettler No. 190904887

Attorneys:^[1]

Joseph M. Chambers, Josh Chambers, J. Brett Chambers, Logan, for appellant

Troy L. Booher, Beth E. Kennedy, Taylor P. Webb, David C Epperson, Scott H. Epperson, Salt Lake City, for appellees

Associate Chief Justice Pearce authored the opinion of the Court, in which Chief Justice Durrant, Justice Petersen Justice Hagen, and Justice Pohlman joined.

OPINION

Pearce, Associate Chief Justice.

INTRODUCTION

¶1 Julie Burton was a patient at Alta Pain Physicians (Alta Pain). Burton filed an action against the clinic and Oscar Johnson, an Alta Pain physician assistant. She also named Dr. Michael Chen- Johnson's supervising physician-in the suit. Burton alleged that Johnson subjected her to sexual harassment and abuse when she saw him for pain treatment at Alta Pain.

¶2 Burton settled her claims against Johnson. Chen and Alta Pain moved for summary judgment on Burton's claims of sexual assault, sexual battery, and intentional infliction of emotional distress-all of which seek to hold Chen and Alta Pain responsible for Burton's abuse under principles of respondeat superior. The district court granted the motion.

¶3 Burton seeks interlocutory review of that decision. Burton argues that the district court erroneously applied the law to conclude that Chen and Alta Pain are not vicariously liable for Johnson's actions. Burton also contends that if the district court did not misapply the law, the law needs to change, and she urges us to abandon our jurisprudence and adopt a foreseeability test for employer liability.

¶4 The district court did not err when it entered summary judgment on the respondeat superior-based claims. We take Burton's point that a foreseeability test might make it easier for plaintiffs to recover against those who employ abusive employees. But Burton has not met her burden of convincing us that we should depart from stare decisis principles and significantly alter the legal landscape in this area of the law. We affirm.

BACKGROUND

¶5 Alta Pain hired Oscar Johnson as a physician assistant. Dr. Michael Chen served as Johnson's supervising physician.^[2] At that time, Utah law required physician assistants to operate under a "delegation of services agreement." See Utah Code § 58-70a-501(1)(c) (2017). The record before us contains no such agreement.

¶6 Alta Pain terminated its relationship with Johnson after one of his patients complained that Johnson had made inappropriate sexual contact with her during an appointment. Chen and Alta Pain investigated Johnson's conduct and heard from several other patients about similar abuse they alleged Johnson had inflicted on them.

¶7 Julie Burton was one of the patients who reported abuse during Chen and Alta Pain's investigation. Burton was a chronic-pain patient who attended monthly appointments for several years. Burton described in her deposition how Johnson touched her sexually without permission and threatened to withhold medication if she did not perform sexual acts with him. Burton also testified that Johnson threatened to kill people she loved.

¶8 Burton sued Johnson, Alta Pain, and Chen. Burton asserted claims of medical malpractice, sexual assault, sexual battery, intentional infliction of emotional distress, and negligent infliction of emotional distress against Johnson. Burton and Johnson reached a settlement agreement. Burton dismissed her claims against Johnson.

¶9 Burton alleged two types of claims against Chen and Alta Pain. The first category of claims asserted direct liability against the doctor and clinic for negligence and the negligent employment of Johnson. Those claims remain live in the district court and are not the subject of this interlocutory appeal.

¶10 The second category of claims asserted that Chen and Alta Pain were responsible for Johnson's tortious conduct under respondeat superior principles. These causes of action included sexual assault, sexual battery, and intentional infliction of emotional distress. Chen and Alta Pain moved for summary judgment on these claims. The district court granted the motion. Burton sought interlocutory review of the grant of summary judgment.

ISSUES AND STANDARD OF REVIEW

¶11 Burton argues that we should reverse the district court for three reasons. Burton first argues that the district court erred when it concluded that Chen and Alta Pain could not be held vicariously liable for Johnson's conduct. We review a grant of summary judgment "for correctness, granting no deference to the trial court's conclusions, and we view the facts and all reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is appropriate if reasonable jurors, properly instructed, would be able to come to only one conclusion." UMIA Ins. v. Saltz, 2022 UT 21, ¶ 65, 515 P.3d 406 (cleaned up).

¶12 Burton next asserts that the version of the Utah Physician Assistant Act (the Act) in effect when Alta Pain and Chen hired Johnson imposed liability on a supervising physician for all actions within the scope of the delegation of services agreement. See Utah Code § 58-70a-102(2) (2017). Because Chen and Alta Pain did not produce a delegation of services agreement it had with Johnson, Burton argues that they are liable for all of Johnson's actions. Burton maintains that the district court erred when it misinterpreted the Act and reached a contrary result. We review the district court's interpretation of a statute for correctness. State v. Mooers, 2017 UT 36, ¶ 5, 424 P.3d 1.

¶13 Burton last argues that we should abandon our precedent and adopt a foreseeability approach to determine when a principal should be liable for the conduct of an agent. Burton asked the district court to do the same, but the district court concluded that it could not overturn binding precedent. The question of whether Burton has met her burden to convince us to overturn precedent is one we decide in the first instance.

ANALYSIS

I. THE DISTRICT COURT DID NOT ERR WHEN IT GRANTED SUMMARY JUDGMENT ON BURTON'S RESPONDEAT SUPERIOR CLAIMS

¶14 To hold Chen and Alta Pain liable for Johnson's actions under respondeat superior, Burton would need to demonstrate that Johnson's conduct was the general kind he was hired to perform and that Johnson was motivated, at least in part, to serve Chen and Alta Pain's interests. See M.J. v. Wisan, 2016 UT 13, ¶ 54, 371 P.3d 21. The district court concluded that Johnson's sexual misconduct was "indisputably not the general kind of conduct Johnson was hired to perform" and not "closely connected" with his job duties. The court also determined that there was "no indication" that Johnson was in any way trying to further his employer's interests through his actions. It therefore concluded that Burton's respondeat superior-based claims could not survive summary judgment. Burton argues that this was error.

¶15 Respondeat superior is a common law agency doctrine, under which an employer can be held vicariously liable for the torts of her employees. Id. ¶ 50. We recognize that an employer should be liable for an employee's actions that occur "within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control." Id., ¶ 52 (quoting Restatement (Third) of Agency § 7.07(2) (Am. L. Inst. 2006)). We also recognize that an employer should not be liable for an employee's actions that occur within "'an independent course of conduct' not connected to the principal." Id. (quoting Restatement (Third) of Agency § 7.07(2) (Am. L. Inst. 2006)). The complication arises when we try to precisely define the line that separates a course of conduct subject to the employer's control from the employee's independent conduct.

¶16 M.J. v. Wisan provides our most recent attempt to define that boundary. There, we described the inquiry as: (1) "whether the agent's conduct is of the general kind the agent is employed to perform"; and (2) "whether the agent's acts were motivated, at least in part, by the purpose of serving the principal's interest." Id. ¶ 54 (cleaned up).^[3] Because Burton's claim fails the first part of the test, the grant of summary judgment was proper.^[4]

¶17 The district court held that Johnson's assaults were "indisputably not the general kind of conduct Johnson was hired to perform," nor were they "closely connected" with his job duties. Burton contends that the district court erred because Johnson's acts were of the "general kind" he was hired to perform. She uses our holding in Wisan, paired with cases from other states, to argue that "a reasonable jury would find that Johnson's conduct was [']generally directed toward the accomplishment['] of his employer's objective to provide pain relief." (Quoting Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989).)

¶18 To start, Wisan does not provide an apt comparison. In Wisan, the agent, Warren Jeffs, was a trustee of a trust created to benefit the Fundamentalist Church of Jesus Christ of Latter-Day Saints. Wisan, 2016 UT 13, ¶¶ 3-6. We noted that "[f]rom 1998 to 2006 the Trust was operated for the express purpose of furthering the doctrines of the FLDS Church, including the practice of plural marriage involving underage girls." Id. ¶ 6.

¶19 This led us to conclude that as "trustee of the Trust . ., Jeffs was called upon to administer the Trust in accordance with the doctrines and principles of the FLDS Church . . . .[,] includ[ing] the arrangement of plural,...