Opinion
Civil Action CV-20-06
11-21-2023
HELEN MCDONALD, Plaintiff, v. NORTHERN LIGHT INLAND HOSPITAL, INC. d/b/a NORTHERN LIGHT INLAND HOSPITAL, and JESUS RUBEN PEREZ, Defendants.
ORDER ON SUMMARY JUDGMENT MOTIONS
Julia M. Lipez Justice, Superior Court.
This case arises from events that occurred at Defendant Northern Light Inland Hospital ("NLIH" or "the hospital"), where Defendant Jesus Ruben Perez- then an employee of NLIH-allegedly sexually assaulted the plaintiff during several ultrasound procedures. In her complaint, the plaintiff asserts claims of medical malpractice (Count I), assault and battery (Count II), and intentional infliction of emotional distress (Count III) against Mr. Perez and against NLIH under a theory of vicarious liability. She also brings direct claims of negligent hiring (Count IV) and negligent supervision (Count V) against NLIH.
Pending before the court are (1) NLIH's motion for summary judgment on all counts, as well as (2) the plaintiffs cross-motion for summary judgment on the assault and battery, negligent hiring, and negligent supervision claims against the hospital. For the reasons discussed below, NLIH's motion is granted in part and denied in part, and the plaintiffs cross-motion is denied.
STANDARD OF REVIEW
"Summary judgment is appropriate when review of the parties' statements of material facts and the referenced record evidence indicates no genuine issue of material fact that is in dispute, and, accordingly, the moving party is entitled to judgment as a matter of law." Dyer v. DOT, 2008 ME 106, ¶ 14, 951 A.2d 821; M.R. Civ. P. 56(c). "A fact is material if it has the potential to affect the outcome of the suit, and a genuine issue of material fact exists when a fact-finder must choose between competing versions of the truth, even if one party's version appears more credible or persuasive." Angell v. Hallee, 2014 ME 72, ¶ 17, 92 A.3d 1154 (quotation marks omitted). "In addition to the specific facts set forth by the parties, [the court] will consider any reasonable inferences that a fact-finder could draw from the given facts." Curtis v. Porter, 2001 ME 158, ¶ 9, 784 A.2d 18. Although the court will not speculate, it "accord[s] the nonmoving party the full benefit of all favorable inferences that may be drawn from the facts presented." Id. (quotation marks omitted).
"When the defendant is the moving party, he must establish that there is no genuine dispute of fact and that the undisputed facts would entitle him to judgment as a matter of law." Estate of Cabatit v. Canders, 2014 ME 133, ¶ 8, 105 A.3d 439. If the defendant satisfies this burden, it then becomes the plaintiffs burden to make out a prima facie case for each element of the cause of action that the defendant challenges and to demonstrate that there are disputed facts. Id.-, Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 9, 742 A.2d 933. When the plaintiff is the moving party, "the plaintiff has the burden to demonstrate that each element of its claim is established without dispute as to material fact within the summary judgment record." Cach, LLC v. Kulas, 2011 ME 70, ¶ 8, 21 A.3d 1015 (quotation marks omitted).
Both the movant and the party opposing summary judgment must file a statement of material facts, with appropriate record references. Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 6, 770 A.2d 653; M.R. Civ. P. 56(h). Facts contained in a statement of material facts, if supported by record citations as required by Rule 56, "shall be deemed admitted unless properly controverted." M.R. Civ. P. 56(h)(4). Denials or qualifications of fact must be supported by a record citation that refers to evidence that is of a quality that would be admissible at trial. See M.R. Civ. P. 56(h)(2), (4); HSBC Mortg. Services, Inc. v. Murphy, 2011 ME 59, ¶ 9, 19 A.3d 815; Levine, 2001 ME 77, ¶ 6, 770 A.2d 653.
In this case, as a preliminary matter, NLIH challenges the adequacy of the plaintiffs opposing statement of material facts. The court agrees that the plaintiffs opposing statement of material facts is deficient for failing to comply with the standards just described. Consistent with these standards, the court (1) deems as admitted all facts that the plaintiff "qualified" or "denied" without proper citations to the record and (2) disregards any facts the plaintiff cites that were not included in her opposing statement of material facts. Moreover, as discussed later in this order, the court disregards record citations to inadmissible evidence that is the subject of a proper objection by NLIH. See infra, n. 7.
FACTS
The following facts are drawn from the summary judgment record and are not disputed by the parties for the purposes of the cross-motions. In early 2019, the plaintiff developed pain and a lump in the lower left quadrant of her abdomen and was referred to NLIH to undergo an ultrasound. Def.'s S.M.F. ¶ 1. Defendant Perez, who had been employed by NLIH since 2007, served as the plaintiffs sonographer. Id. ¶¶ 3-5, 10.
To support its statement of material facts, NLIH relies on the plaintiffs deposition testimony that was taken as part of the medical malpractice screening panel proceedings. The plaintiff, as the party who made the challenged statements, has not objected to use of her panel deposition testimony. See 24 M.R.S. § 2857(1)(A)(2) (deeming statements made before the panel inadmissible, "except that. . . [t]he party who made the statement or presented the evidence may agree to the submission, use or disclosure of that statement or evidence."). Instead, the plaintiff has admitted many of the factual assertions that rely on her testimony. See M.R. Civ. P. 56(h)(2). The court will therefore consider the cited portions of the plaintiffs deposition testimony as part of the summary judgment record and decide the motions based on the undisputed facts.
A number of NLIH policies applied to sonographers, some of which governed endovaginal ultrasounds included as part of the pelvic ultrasound process. Id. ¶¶ 14, 37-38. For instance, NLIH had a policy in place that required a male sonographer to use a chaperone when conducting an endovaginal and/or transvaginal examination. Id. ¶ 14. As an NLIH employee, Perez signed a document acknowledging that all employees were to "maintain a safe environment which includes knowing and understanding hospital and departmental policies and procedures." Id. ¶ 12. Moreover, like other hospital employees, Perez was required to undergo annual sexual harassment training. Id. ¶ 13.
On February 28, 2019, the plaintiff presented to the NLIH radiology department to undergo an abdominal ultrasound administered by Mr. Perez. Id. ¶¶ 2-3. According to the plaintiff, Mr. Perez's voice became "very low" and "very sensual" during the visit, and she challenged what Mr. Perez was doing early in the examination. Id. ¶¶ 19, 21. At various points, the plaintiff had to direct Mr. Perez to where the lump was "because he was often not where he was supposed to be." Id. ¶24.
The plaintiff had undergone ultrasounds before and testified that Perez did "things [she] had never seen ... in an ultrasound." Id. ¶¶ 17-18, 22. During the procedure, Mr. Perez used his fingers to apply a gel to her labia and clitoris, and after the gel was applied, the plaintiff lost consciousness. Id. ¶¶ 23, 25, 29. She regained consciousness once the gel was removed. Id. ¶ 29. Mr. Perez then pushed her pelvis upward and released it in a manner that "felt very sexual." Id. When the examination concluded, Mr. Perez walked the plaintiff to the reception window, after which she left the hospital. Id. ¶ 30. In the weeks following the ultrasound procedure, the plaintiff, who was dealing with other medical issues, "wasn't even thinking back to that date" and "did not give the [visit] any further thought." Id. ¶ 33.
Mr. Perez was not authorized to prescribe drugs, and there were no analgesic or sedative drugs indicated or prescribed for the examination. Id. ¶¶ 26-27.
Without resolution of the pain and lump, a doctor ordered that the plaintiff undergo a complete pelvic ultrasound. Id. ¶¶ 34, 36. The "indication" in the doctor's order was "left lower abdominal/inguinal swelling and mass . . . [and] [a]bdominal pain." Id. ¶ 39.
On April 3, 2019, the plaintiff returned to NLIH for a second ultrasound with Mr. Perez. Id. ¶ 41. During the visit, Mr. Perez captured ultrasound images of the plaintiffs hernia defect and copied those images to a disc for the plaintiff to take home. Id. ¶¶ 43-44. Perez also touched the plaintiff in a way that she felt "was not called for." Id. ¶¶ 45-48. According to the plaintiff, Mr. Perez placed his hand under her right buttock for approximately five minutes, which caused her to react. Id. ¶ 45. Mr. Perez responded by informing the plaintiff that he placed his hand on her buttocks to keep her from falling off the table, but the plaintiff "didn't believe that for one moment." Id. ¶ 46. She also testified that Perez "fondl[ed]" the area around her vagina, prompting her to draw an ink circle around the lump to focus Perez's attention on the bodily area at issue. Id. ¶ 47. Moreover, as in the first visit, the plaintiff lost consciousness during the April 3 ultrasound. Id. ¶ 49.
At some point, Mr. Perez instructed the plaintiff to return the next day so he could push her hernia back in, though he lacked authority to do so. Id. ¶¶ 50-51, 53. To facilitate this upcoming visit, Perez told an individual in the reception room that the plaintiff would be returning the following day (April 4) and could bypass the check-in process. Id. ¶ 52. No doctor was aware of, contacted regarding, or prescribed an ultrasound for April 4. Id. ¶ 53.
As instructed, the plaintiff returned to NLIH on April 4 to meet with Mr. Perez. Id. ¶¶ 54-58. During this visit, Mr. Perez stroked the plaintiffs vagina with his bare hand; his conduct on this day did not serve any medical or treatment-related purpose. Id. ¶¶ 54-55. When it ultimately came time to leave, Perez kept watch of the hallway outside the ultrasound room and did not exit the room until the hallway was free of people. Id. ¶¶ 56-57. Before the plaintiff left, Mr. Perez told the plaintiff, "you are so, so beautiful, you are so beautiful... I picked you ... I picked you when I saw you sitting in the waiting room." Id. ¶ 58.
The plaintiff did not report her allegations against Mr. Perez prior to April 4, 2019. Id. ¶ 59. In a letter to law enforcement, the plaintiff wrote that Mr. Perez's acts "betray[ed] . . . his employer," and Perez "drove the ultrasound test away from medical purposes to sexual ones .... The doing, decision-making, and planning was the heinous work of [Perez]." Id. ¶¶ 60-61.
PROCEDURAL HISTORY
In April 2021, the plaintiff filed a five-count complaint naming Mr. Perez and NLIH as defendants. In Count I, the plaintiff asserts a claim of medical malpractice against Mr. Perez and seeks to hold NLIH vicariously liable under the doctrines of respondeat superior and apparent authority. See Pl.'s Compl. ¶¶ 4, 72-77. Counts II and III assert claims of assault and battery and intentional infliction of emotional distress ("IIED") against Perez and allege that NLIH is also vicariously liable for these torts under theories of respondeat superior and apparent authority. See id. ¶¶ 78-95. Counts IV and V pursue direct claims against NLIH for negligent hiring and negligent supervision. See id. ¶¶ 96-132. NLIH's motion for summary judgment and the plaintiffs cross-motion for summary judgment followed. The court held oral argument on September 20, 2023.
DISCUSSION
I. NLIH's Motion for Summary Judgment
In its motion, NLIH asks the court to enter summary judgment in its favor on all counts, both those predicated on a theory of vicarious liability, see infra Part A, as well as the plaintiffs direct claims of negligent hiring and negligent supervision, see infra Part B.
A. NLIH's Vicarious Liability (Counts I-III)
NLIH contends that it cannot be held vicariously liable for Mr. Perez's conduct because he was not acting within the scope of his employment when he committed the torts and because his actions were taken without apparent authority. The court addresses these issues in turn.
1. Whether Mr. Perez's Alleged Conduct Was Within the Scope of His Employment.
Section 7.07 of the Restatement (Third) of Agency provides the standard for determining whether an employer is subject to vicarious liability for a tort committed by its employee "acting within the scope of employment." See Picher v. Roman Catholic Bishop of Portland, 2009 ME 67, ¶ 32, 974 A.2d 286; see also Canney v. Strathglass Holdings, LLC, 2017 ME 64, ¶ 12, 159 A.3d 330. That section states in relevant part:
An employee acts 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. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
Restatement (Third) of Agency § 7.07(2) (2006).
Under this standard, "[i]f an employee undertakes a course of work-related conduct for the sole purpose of furthering the employee's interests . . ., the employee's conduct will often lie beyond the employer's effective control," and "it is neither fair nor true-to-life to characterize the employee's action as that of a representative of the employer." Id. cmt. b; Mahar v. Stone Wood Transp., 2003 ME 63, ¶ 14, 823 A.2d 540. In such a case, "[t]he employee's intention severs the basis for treating the employee's act as that of the employer in the employee's interaction with the third party." Restatement (Third) of Agency § 7.07, cmt. b (2006).
In assessing an employee's intent, "the character, extreme nature, or other circumstances accompanying an employee's actions may demonstrate that the employee's course of conduct is independent of performing work assigned by the employer and intended solely to further the employee's own purposes." Id. cmt. c (emphasis added). Thus, the Law Court consistently has deemed "serious intentional wrongdoing" to be outside the lawful scope of employment. Mahar, 2003 ME 63, ¶ 14, 823 A.2d 540 (quotation marks omitted). Indeed, while an employer may reasonably anticipate that an employee will commit "minor crimes" while working, "serious criminal activity . . . [is] unexpected and different from what is expected from [employees] in a lawful occupation." Id. ¶ 16.
In Mahar v. Stonewood Transport, for instance, the Law Court held that an employee-truck driver's actions were "well outside the scope of his employment" where he blocked the road with his truck and approached the plaintiffs in a threatening manner while brandishing a metal pipe. Id. ¶¶ 3-4, 17. Because the employee's conduct was "unanticipated" and "not authorized," and it was "clear that [the employee's] motive for assaulting and harassing the [plaintiffs] was unrelated to any interest of [his employer]," the Law Court affirmed the trial court's entry of summary judgment in favor of the employer. Id. ¶¶ 7, 17, 27.
Similarly, in Dragomir v. Spring Harbor Hospital, the Law Court concluded that a hospital social worker who had a sexual relationship with a patient-conduct that resulted in the employee's conviction of gross sexual assault with a mental health patient-was acting outside the scope of his employment. 2009 ME 51, ¶¶ 2-4, 11-14, 970 A.2d 310. The Court observed that the employee's sexual relationship with the plaintiff-patient "was not the kind of conduct he was employed to perform." Id. ¶ 13. Instead, his actions were "entirely different in kind from that authorized by [the hospital]." Id.
Here, as in Mahar and Dragomir, the summary judgment record describes serious criminal conduct that falls outside the scope of Mr. Perez's duties as a hospital sonographer. The undisputed facts reveal not only that Perez touched the plaintiffin a "sexual" manner during the first two visits, see Def.'s S.M.F. ¶¶ 19, 23, 29, 47, 54, but also that he may have engaged in the unauthorized administration of sedative drugs that allowed him to further his sexual purposes. Id. ¶¶ 25-29, 49.
Mr. Perez then invited the plaintiff to return for a third examination without the hospital's authorization and behaved inappropriately at that visit as well. Id. ¶¶ 50-51, 53-55, 58.
Although the events took place in the hospital setting and some degree of touching may be incidental to certain sonogram procedures, the record before the court makes plain that Mr. Perez's actions were not motivated by a desire to serve his employer; rather, the undisputed facts suggest Perez's actions were personal in nature. See Restatement (Third) of Agency § 7.07(2) (2006); Picker, 2009 ME 67, ¶ 32, 974 A.2d 286. Mr. Perez's conduct also was not of the type he was hired to perform. See Mahar, 2003 ME 63, ¶ 17, 823 A.2d 540; Dragomir, 2009 ME 51, ¶ 13, 970 A.2d310.
To the extent the complaint alleges Perez was negligent in other ways, such as in failing to obtain the plaintiffs informed consent and in administering drugs that induced unconsciousness, see Pl.'s Compl. ¶ 74, the court concludes that these alternative theories of negligence "relate back" to the sexual conduct alleged. Dragomir, 2009 ME 51, ¶ 14, 970 A.2d 310. In Dragomir, the Law Court concluded that the hospital could not be held vicariously liable on a theory that "the therapy itself was negligent" because the plaintiffs claims "regarding negligent treatment all relate[d] back to the sexual relationship." Id. ¶ 14. Similarly, here, the plaintiff has failed to produce sufficient evidence to defeat summary judgment on a standalone claim of negligence that is separate and apart from his claims regarding Mr. Perez's assaultive behavior. See id.
In sum, the plaintiffs attempts to hold the hospital vicariously liable under a theory that Mr. Perez acted within the "scope of his employment" must fail and NLIH is entitled to summary judgment on this theory.
2. Apparent Authority
The plaintiff argues that regardless of whether Mr. Perez was acting within the scope of his employment, the hospital may be held vicariously liable under the agency theory of apparent authority. Pl.'s Opp. Br. 13-15. NLIH contends that it is not subject to liability under such a theory because the undisputed facts demonstrate that it was unreasonable for the plaintiff to believe that Mr. Perez was acting on the hospital's behalf. Def.'s Br. 10-12.
"Apparent authority is authority which, though not actually granted, the principal knowingly permits the agent to exercise or which he holds him out as possessing." Gniadek v. Camp Sunshine at Sebago Lake, Inc., 2011 ME 11, ¶ 33, 11 A.3d 308 (quotation marks omitted). Apparent authority exists only "when the conduct of the principal leads a third party to believe that a given party is [its] agent." Id. (emphasis omitted) (quotation marks omitted). A principal may be held liable for acts done by an agent with apparent authority even if "the agent acts solely to benefit himself." Am. Soc. of Meeh. Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 566 (1982).
The Restatement (Third) of Agency § 7.08 (2006) provides the relevant analytical framework. Gniadek, 2011 ME 11, ¶¶ 32-36, 11 A.3d 308; Picher, 2009 ME 67, ¶ 32, 974 A.2d 286. That section states:
A principal is subject to vicarious liability for a tort committed by an agent in dealing or communicating with a third party on or purportedly on behalf of the principal when actions taken by the agent with apparent authority constitute the tort or enable the agent to conceal its commission.
Restatement (Third) of Agency § 7.08 (2006). For a principal to be liable under this section, "there must be a 'close link between an agent's tortious conduct and the agent's apparent authority.'" Gniadek, 2011 ME 11, ¶ 34, 11 A.3d 308 (quoting Restatement (Third) of Agency § 7.08, cmt. b (2006)). "'[A] principal is not subject to liability when actions that an agent takes with apparent authority, although connected in some way to the agent's tortious conduct, do not themselves constitute the tort or enable the agent to mask its commission.'" Id.
Apparent authority does not necessarily end when actual authority terminates. Gniadek, 2011 ME 11, ¶ 33, 11 A.3d 308. Rather, "apparent authority ceases when it becomes unreasonable for the third party to believe that the agent continues to act with actual authority." Id. The existence and extent of apparent authority and the reasonable reliance thereon present questions of fact. Steelstone Indus., Inc. v. N. Ridge Ltd. P'ship, 1999 ME 132, ¶ 12, 735 A.2d 980; MacQuinn v. Patterson, 85 A.2d 183, 186-87 (Me. 1951).
In this case, the summary judgment record generates genuine issues of material fact regarding (1) the extent of Mr. Perez's apparent authority and when that authority ceased, and (2) whether the cloak of apparent authority enabled Perez to conceal the commission of the alleged sexual assault. NLIH does not contend that all of Perez's acts were devoid of apparent authority. Indeed, because the hospital hired Mr. Perez as a sonographer and charged him with conducting ultrasounds on the hospital's behalf, the plaintiff could reasonably assume that Perez had the authority to perform acts consistent with his role, such as performing pelvic ultrasounds. Steelstone Indus., Inc., 1999 ME 132, ¶ 13, 735 A.2d 980 ("A principal. . . creates apparent authority 'by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.'"); Restatement (Third) of Agency, § 3.03, cmt. b (2006) ("A principal may [] make a manifestation [of apparent authority] by placing an agent in a defined position in an organization or by placing an agent in charge of a transaction or situation.").
Instead, NLIH argues that it did not take any action that would reasonably lead the plaintiff to believe that Mr. Perez was authorized to engage in the assaultive conduct described. See Def.'s Br. 11. While the court generally agrees with the hospital that Mr. Perez lacked apparent authority to commit a sexual assault, this conclusion does not end the analysis. Still remaining is the factually nuanced question of when Perez's apparent authority terminated, i.e., at what point was the plaintiff reasonably on notice that Perez's conduct had crossed the line from that of a sonographer acting on the hospital's behalf to that of someone committing an assault? This issue is material because NLIH may be held vicariously liable for Perez's conduct up to the point that it was no longer reasonable for the plaintiff to believe that Perez was acting as the hospital's agent. Gniadek, 2011 ME 11, ¶ 33, 11 A.3d 308.
The court declines to resolve this issue at the summary judgment stage, as the record gives rise to competing inferences regarding the point at which Perez's conduct, reasonably viewed by someone in the plaintiffs position, would be recognized as assaultive and outside his actual authority. As a useful comparison, this case is readily distinguishable from Gniadek, a case involving an employment situation where any form of genital touching would so obviously be beyond the scope of the employee's authority that there could be no legitimate debate as to whether the employee's conduct could be perceived as a sexual assault. See 2011 ME 11, ¶¶ 6-10, 36, 11 A.3d 308 (involving a sexual assault committed by a children's camp volunteer). In this case, by contrast, the pertinent conduct was undertaken in a hospital setting by a sonographer who was tasked (at least during the first two visits) with performing a pelvic or abdominal ultrasound-a procedure that may entail a transvaginal examination. See Def.'s S.M.F. ¶¶ 36-37, 40. Thus, the type of touching that is plainly assaultive in some contexts might reasonably be viewed as appropriate in the ultrasound setting, where some degree of touching may be incidental to the legitimate medical procedure.
In Gniadek, the Law Court summarily disposed of the plaintiffs claim that the camp volunteer was acting with apparent authority, both because the volunteer no longer worked with the camp and because of the nature of the tortious conduct. 2011 ME 11, ¶ 36, 11 A.3d 308.
NLIH argues that any apparent authority "would have terminated very soon into the first ultrasound examination." Def.'s Br. 11. The summary judgment record, however, is not so clear. While the plaintiff questioned Mr. Perez's behavior as early as the first visit, the evidence suggests that Perez's conduct was ambiguous to the point that she was able to walk away from the first visit without giving it "any further thought." Def.'s S.M.F. ¶ 33. The plaintiff then assented to examinations by Mr. Perez on two subsequent occasions. See id. ¶¶ 34, 41-43, 50-55. When viewed in the plaintiffs favor, this evidence supports an inference that notwithstanding her questions, the plaintiff continued to operate under a reasonable belief that Perez was acting within the scope of his duties as the hospital's sonographer. See Curtis, 2001 ME 158, ¶ 9, 784 A.2d 18 (the court "will consider any reasonable inferences that a fact-finder could draw from the given facts").
Additionally, there are genuine issues of material fact regarding whether Mr. Perez took actions with apparent authority that "'enable[d] [him] to mask'" the commission of a sexual assault. Gniadek, 2011 ME 11, ¶ 34, 11 A.3d 308; Restatement (Third) of Agency § 7.08 (2006). The summary judgment record gives rise to an inference that the gel Mr. Perez applied to the plaintiff might have been linked to the bouts of unconsciousness she experienced during the ultrasound procedures. See Def.'s S.M.F. ¶¶ 25, 29. The record further suggests that Mr. Perez may have exploited those episodes of unconsciousness to further the commission of a sexual assault. Thus, factual issues remain as to whether Mr. Perez took actions with apparent authority-such as applying gel as part of the sonogram procedure- that allowed him to conceal his tortious conduct.
In short, the factual disputes discussed above are material to the issue of the hospital's vicarious liability under the agency theory of apparent authority. Accordingly, NLIH's motion for summary judgment is denied in part as to Counts I, II, and III, and these counts may proceed to trial on an apparent authority theory.
B. NLIH's Direct Liability (Counts IV and V)
1. Negligent Hiring
NLIH contends that it is entitled to summary judgment on Count IV, negligent hiring, because Maine has not recognized this tort in the context of hiring employees. Def.'s Br. 12-13. Alternatively, NLIH argues that the record is devoid of evidence demonstrating causation. Id. at 13-14. The court finds NLIH's contentions persuasive.
In Dexter v. Town of Norway, 1998 ME 195, 715 A.2d 169, the Law Court adopted the Restatement (Second) of Torts § 411, which sets forth "a valid claim pursuant to Maine tort law for the negligent selection of a contractor." Dexter, 1998 ME 195, ¶ 10, 715 A.2d 169 (emphasis added). The Law Court neither recognized a tort for the negligent hiring of an employee nor adopted the sections of the Restatement that govern such a claim. See id; see also Gomes v. Univ, of Maine Sys., 304 F.Supp.2d 117, 133-34 (D. Me. 2004) (finding that the Law Court has recognized the tort of negligent hiring only in the "narrow context" of "negligent selection of a contractor"). Because Count IV is premised on the unrecognized tort of negligent hiring, the claim fails as a matter of law.
As the United States District Court observed in Gomes, the Restatement (Second) of Torts § 307 and Restatement (Second) of Agency § 213(b) provide authority for jurisdictions that have adopted the tort of negligent hiring of an employee. 304 F.Supp.2d at 134. It does not appear that the Law Court has adopted the Restatement (Second) of Torts § 307, and the Restatement (Second) of Agency § 213(b) has been referenced only in connection with the tort of negligent supervision. See Mahar, 2003 ME 63, ¶ 11 & n.4, 823 A.2d 540; Swanson v. Roman Catholic Bishop of Portland, 1997 ME 63, ¶ 10 & n.5, 692 A.2d 441.
To save the claim, the plaintiff argues that "[t]he hospital . . . had duties separate and apart from Maine common law regarding hiring," and cites several statutory provisions, including one requiring that hospitals conduct criminal background checks. Pl.'s Opp. Br. 21 (citing 22 M.R.S. § 1724 and 24 M.R.S. § 2503). These statutory provisions, however, were not set forth in the complaint, and the plaintiff otherwise fails to demonstrate that the statutes give rise to a private right of action against the hospital. See Charlton v. Town of Oxford, 2001 ME 104, ¶ 15, 774 A.2d 366 ("We are hesitant to imply a private right of action where the legislature has not expressly stated that a cause of action exists"). Moreover, 22 M.R.S. § 1724 went into effect in 2010, years after NLIH hired Mr. Perez. Def.'s S.M.F. ¶ 4. Thus, Count IV cannot be sustained on grounds that NLIH had statutory obligations "separate and apart from Maine common law." Pl.'s Opp. Br. 21.
Moreover, even assuming a tort for negligent hiring of an employee exists in Maine, NLIH would nonetheless be entitled to summary judgment on such a claim. Causation is a critical element of any negligence claim. See Murdock v. Thorne, 2017 ME 136, ¶ 11, 166 A.3d 119 ("A prima facie case of negligence requires a plaintiff to establish four elements: duty, breach, causation, and damages.'"); Restatement (Second) of Torts § 411 ("An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor . . . ." (emphasis added)). "To support a finding of proximate cause, there must be some evidence indicating that a foreseeable injury did in fact result from the negligence." Murdock, 2017 ME 136, ¶ 13, 166 A.3d 119 (quotation marks omitted). Here, the summary judgment record is devoid of admissible evidence establishing that the plaintiffs injuries were a foreseeable consequence of NLIH's failure to perform a more comprehensive background investigation of Mr. Perez.
While the plaintiff asserts that there was discoverable information regarding prior allegations of sexual abuse against Perez arising from his conduct at a Virginia hospital and that NLIH was negligent in failing to uncover this material, the plaintiffs opposing statement of material facts contains no factual assertion regarding Mr. Perez's questionable work history. This information is therefore not part of the summary judgment record. See M.R. Civ. P. 56(h)(2); Lubar v. Connelly, 2014 ME 17, ¶ 34, 86 A.3d 642 ("Facts not set forth in the statement of material facts are . . . not in the summary judgment record, and [the court] will disregard facts stated in portions of an affidavit or other record evidence, for example, that are not stated, with citation to the record, in the statement of material facts itself." (quotation marks omitted)).
At oral argument, the plaintiff sought leave to file a supplemental statement of material facts on the theory that she did not fully respond to NLIH's motion for summary judgment because at the time she filed her opposition, the court had yet to rule on NLIH's motion for leave to file a summary judgment motion after the scheduling order deadline. However, when the court began its review of the pending motions, all issues on summary judgment had been fully briefed by the parties. In her opposing brief, the plaintiff did not indicate that her filing was anything less than a full response, nor did she seek to reserve an opportunity to file a supplemental motion if NLIH's motion for leave was granted. Instead, she raised the issue for the first time at oral argument. The court therefore denies the plaintiffs belated request to file a supplemental opposition.
Furthermore, the evidence upon which the plaintiff relies to support her theory of causation-a Department of Health and Human Services Plan of Correction ("POC") and a report from Deb Cohen, Ph.D.-is inadmissible. See HSBC, 2011 ME 59, ¶ 9, 19 A.3d 815. Dr. Cohen's report is unsworn and does not purport to be based on personal knowledge and therefore, is not in a form appropriate for the court's consideration on summary judgment. See M.R. Civ. P. 56(e); see also Bramson v. Richardson, 412 A.2d 381, 383 (Me. 1980) (explaining that unsworn documents "were not actually affidavits" and thus, were not part of the summary judgment record). Additionally, the POC's statements regarding the existence of prior allegations against Perez are offered for the truth of the matter asserted and constitute hearsay that do not fall within a recognized exception. See M.R. Evid. 801, 802. While the POC may be considered a public record under M.R. Evid. 803(8), the "statement of deficiencies" within it, including the statements regarding the prior allegations, are "[f]actual findings resulting from [a] special investigation of a particular complaint, case, or incident" that are expressly excluded from the scope of the public records exception. M.R. Evid. 803(8)(iv); Tiemann v. Santarelli Enterprises, Inc., 486 A.2d 126, 131-32 (Me. 1984).
For all these reasons, NLIH is entitled to summary judgment on Count IV.
2. Negligent Supervision
Finally, NLIH contends that it is entitled to summary judgment on the negligent supervision count because "there is no genuine issue of material fact regarding the absence of a special relationship" between the plaintiff and the hospital. Def.'s Mot. 19. The court agrees.
In Fortin v. Roman Catholic Bishop of Portland, the Law Court recognized the tort of negligent supervision. 2005 ME 57, ¶ 39, 871 A.2d 1208; Dragomir, 2009 ME 51, ¶ 16, 970 A.2d 310. The Court acknowledged the "general rule . . . that an actor has no duty to protect others from harm caused by third parties." Fortin, 2005 ME 57, ¶ 25, 871 A.2d 1208. However, an exception to the rule exists when the parties share a "special relationship"-a principle memorialized in Section 315(b) of the Restatement (Second) of Torts. Id., Dragomir, 2009 ME 51, ¶ 16, 970 A.2d 310. Thus, "if a plaintiff asserts the existence of facts that, if proven, establish a special relationship with a defendant in accordance with section 315(b) of the Restatement (Second) of Torts, an action may be maintained against the defendant for negligent supervision liability in accordance with section 317 of the Restatement." Fortin, 2005 ME 57, ¶ 39, 871 A.2d 1208.
Section 315(b) provides that "[t]here is no duty [ ] to control the conduct of a third person [ ] to prevent him from causing physical harm to another unless ... a special relation exists between the actor and the other which gives to the other a right to protection." Restatement (Second) of Torts § 315(b) (1965).
The Law Court used its opinion in Dragomir to further clarify what qualifies as a "special relationship" in this context. 2009 ME 51, ¶¶ 18-21, 970 A.2d 310. The term as used in Section 315(b) encompasses four kinds of relationships: (1) common carriers and passengers; (2) innkeepers and guests; (3) possessors of land and invitees; and (4) "those who are required by law to take physical custody of another or who voluntarily do so, such as to deprive the other of his normal opportunities for protection." Id. ¶ 18 (quotation marks omitted); Restatement (Second) of Torts §§ 314A, 315 cmt. c. The Court also recognized that "a fiduciary relationship!] in which there exists a great disparity of position and influence between the parties would qualify as a 'special relationship]' pursuant to section 315(b)." Dragomir, 2009 ME 51, ¶ 19, 970 A.2d 310 (quotation marks omitted). "Such a determination must be made on a case-by-case basis, unless the nature of a given relationship is such that there is always certain to be a great disparity of position and influence." Id. The existence of a duty and the scope of that duty are questions of law. Gniadek, 2011 ME 11, ¶ 17, 11 A.3d 308.
The parties point the court to three cases in which the Law Court considered whether a special relationship existed between the parties. In Fortin, the plaintiff, who had been sexually assaulted by his childhood priest, stood in a special relationship with the Diocese as his fiduciary because he had a "prolonged and extensive involvement with the church as a student and alter boy" and was subject to the daily supervision, control, and authority of the Diocese. 2005 ME 57, ¶ 34, 871 A.2d 1208. This type of "particularized involvement" with the church was distinguishable from that of someone who could only assert a "general membership" in the organization. Id. ¶¶ 32, 34. In its analysis, the Law Court also emphasized "that the Diocese knew or should have known of the risk of harm posed by the priest." Id. ¶¶ 37-38.
Likewise, in Dragomir, the plaintiff, a patient who had a sexual relationship with a hospital social worker, stood in a special relationship with the hospital. 2009 ME 51, 970 A.2d 310. The Law Court's decision was predicated on the particular circumstances of the plaintiff, who received in-patient treatment for schizophrenia and substance abuse and was thereafter released to the hospital's "intensive" outpatient program. Id. ¶ 17. As the Court explained:
A hospital's relationship to a psychiatric patient suffering from and being treated for a mental illness or a vulnerable psychological
condition, especially one as serious as schizophrenia, which in this case required inpatient hospitalization followed by intensive outpatient treatment, is certainly one that is marked by a "great disparity of position and influence between the parties."Id. ¶ 21 (quoting Fortin, 2005 ME 57, ¶ 34, 871 A.2d at 1220).
By contrast, in Gniadek, where the teenage plaintiff was sexually assaulted by a camp volunteer during the off-season, the Law Court rejected the plaintiffs contention that she stood in a special relationship with her summer camp. 2011 ME 11, ¶¶ 6-10, 19-27, 11 A.3d 308. This was despite the fact that the camp was designed for children with chronic or life-threatening illnesses. Id. ¶¶ 2,6. Finding no "fiduciary relationship," the Law Court emphasized that the plaintiff spent only one week at the camp each year and "her relationship with the [c]amp was indistinguishable from that of other campers." Id. ¶ 22. Although the plaintiffs chronic illness and use of anti-depressants made her "vulnerable," the camp "had a limited presence" in her life and "did not exercise influence over her." Id. ¶ 23.
The Court also rejected the plaintiffs contention that she shared a "custodial relationship" with the camp, as the plaintiff attended the camp with her mother and was not in the camp's custody when the sexual assault occurred. Gniadek, 2011 ME 11, ¶¶ 24-26, 11 A.3d 308.
Here, the plaintiffs relationship with NLIH was not "marked by a great disparity of position and influence between the parties." Dragomir, 2009 ME 51, ¶ 21, 970 A.2d 310. The plaintiff, who visited the hospital for an ultrasound procedure on three occasions, lacked the kind of "extensive involvement" and close connection with the hospital that was critical to the Law Court's analysis in Fortin and Dragomir. Cf. Fortin, 2005 ME 57, ¶¶ 32, 34, 871 A.2d 1208 (noting the plaintiffs "prolonged and extensive involvement with the church"); Dragomir, 2009 ME 51, ¶ 21, 970 A.2d 310. Rather, as in Gniadek, NLIH had a limited presence in the plaintiffs life-a relationship that was no different from that of any other patient who used the hospital's services. 2011 ME 11, ¶¶ 22-23, 11 A.3d 308.
Certainly, as the plaintiff observes, the ultrasound procedure had the potential to be invasive. Pl.'s Opp. Br. 20. However, the summary judgment record reveals that the plaintiff was a competent adult of sound mind who lacked the vulnerability of the minor in Fortin and the schizophrenic patient in Dragomir. See Dragomir, 2009 ME 51, ¶ 21, 970 A.2d 310; Fortin, 2005 ME 57, ¶¶ 3, 34, 871 A.2d 1208. And while the plaintiff asserts that she was "drugged" during the procedure, there is no record evidence that NLIH was aware Perez was "drugging" patients or that administering sedative drugs is otherwise a standard part of an ultrasound procedure. See Def.'s S.M.F. ¶¶ 26-27 (noting that Mr. Perez was not authorized to prescribe drugs, and there were no analgesic or sedative drugs indicated or prescribed for the plaintiffs examination). Additionally, there is no admissible record evidence that the hospital knew or should have known of the risk of harm posed by Perez. Cf. Fortin, 2005 ME 57, ¶ 38, 871 A.2d 1208 ("The duty does not exist simply because of [the plaintiff]'s status as a student and alter boy, but because of the added assertion that the Diocese knew oi' should have known of the risk of harm posed by the priest who abused [the plaintiff]"). Finally, although the plaintiff received care at the hospital, the care was delivered on a limited, outpatient basis; there was no period of "inpatient hospitalization" followed by "intensive outpatient treatment," as was the case in Dragomir. See 2009 ME 51, ¶ 21, 970 A.2d 310.
As noted supra pp. 19-20, the evidence of prior sexual abuse allegations against Perez was not properly made part of the summary judgment record.
In short, there is no "special relationship" between the plaintiff and NLIH that gives rise to a duty under the tort of negligent supervision. Accordingly, NLIH is entitled to summary judgment on Count V.
II. The Plaintiffs Cross-Motion for Summary Judgment
In her motion, the plaintiff asks the court to enter summary judgment in her favor on the negligent hiring, negligent supervision, and assault and battery counts. Having granted NLIH's motion for summary judgment with respect to negligent hiring and negligent supervision, the plaintiffs cross-motion is denied as to those counts. Moreover, the plaintiff has not met her burden of demonstrating, without dispute as to material fact, that the hospital is vicariously liable for assault and battery. Cach, 2011 ME 70, ¶ 8, 21 A.3d 1015 ("When . . . the plaintiff has moved for summary judgment, 'the plaintiff has the burden to demonstrate that each element of its claim is established without dispute as to material fact within the summary judgment record.'"). As noted above, material facts are in dispute regarding NLIH's liability for Perez's alleged conduct.
CONCLUSION
The entry is:
1. NLIH's motion for summary judgment is granted in part and denied in part. Specifically, the motion is:
a. Granted as to Count I (medical malpractice), Count II (assault and battery), and Count III (IIED) on the plaintiffs theory that Mr. Perez was acting within the scope of his employment, but denied as to the plaintiffs theory that Perez was acting with apparent authority. Counts I, II, and III may move forward on a theory of apparent authority only; and
b. Granted as to Count IV (negligent hiring) and Count V (negligent supervision).
2. The plaintiffs cross-motion for summary judgment is denied on all counts. The clerk is directed to incorporate this order on the docket by reference pursuant to M.R. Civ. P. 79(a).