To hold Crowne Plaza Hotel vicariously liable for an employee's tortious conduct, plaintiff must plead and prove that the employee acted "within the course and scope of employment." Vinsonhaler v. Quantum Res. Corp., 189 Or. App. 1, 5, 73 P.3d 930, 932 (Or. Ct. App. 2003). To establish that an employee acted within the course and scope of employment, a plaintiff must demonstrate that: (1) the tortious act "occurred substantially within the time and space limits authorized by the employment"; (2) the employee "was motivated, at least partially, by a purpose to serve the employer"; and (3) the act "is of a kind which the employee was hired to perform."
" Harris v. Pameco Corp., 170 Or. App. 164, 173, 12 P.2d 524 (2000) (claims for sex discrimination and battery). See also Vinsonhaler v. Quantum Residential Corp., 189 Or. App. 1, 6, 73 P.2d 930 (2003) ("The focus of the inquiry is not necessarily whether an employee's tortious conduct itself was intended to serve the employer but, rather, whether the employee engaged in conduct that was intended to serve the employer and that conduct resulted in the acts that injured the plaintiff."). Consequently, plaintiffs have sufficiently alleged respondeat superior claims by alleging that a priest acted to serve the Archdiocese when he cultivated a relationship of trust with the plaintiff that led to the abusive conduct, Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), and by alleging a Boy Scout leader cultivated a relationship of trust with the plaintiff Boy Scout and his family which resulted in abuse,Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157 (1999).
To establish that the employee acted within the course and scope of employment requires proof of three things: (1) the tortious act must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the employee's act is of a kind which the employee was hired to perform.Vinsonhaler v. Quantum Residential Corp., 189 Or.App. 1, 5 (2003) (citing Chesterman v. Barmon, 305 Or. 439, 442 (1988)). If the plaintiff fails to establish at least a jury question as to any element of his claim, the defendants are entitled to summary judgment. See Vinsonhaler, 189 Or.App. at 6 (defendant was entitled to summary judgment because plaintiff failed to present any evidence from which a reasonable jury could infer that the employee engaged in conduct of any sort which was intended to serve his employer).
The focus of the court's inquiry for the second and third elements is "whether the employee engaged in conduct that was intended to serve the employer and that the conduct resulted in the acts that injured the plaintiff." Vinsonhaler v. Quantum Residential Corp., 73 P.3d 930, 934 (Or.Ct.App. 2003); see also Minnis, 48 P.3d at 145 (focus directed at the conduct that the employee was hired to perform that arguably resulted in the acts that caused plaintiff's injury). The Oregon Court of Appeals explained this standard in Vinsonhaler, where two assistant resident managers of an apartment complex, who were sexually harassed during the course of their employment by the former resident manager, sought to hold the defendant employer vicariously liable.
To establish that the employee acted "within the course and scope" of employment requires proof of three things: (1) the tortious act must have "occurred substantially within the time and space limits authorized by the employment"; (2) the employee must have been "motivated, at least partially, by a purpose to serve the employer"; and (3) the employee's act "is of a kind which the employee was hired to perform."Vinsonhaler v. Quantum Residential Corp., 189 Or. App. 1, 5, 73 P.3d 930, 932-33 (2003) (quoting Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404, 406 (1988)). In Vinsonhaler, as here, the plaintiffs alleged that they were sexually harassed by their supervisor "during the time and space limits authorized by the employment."
Mr. Thomason was totally dependent upon the deputies for all his basic necessities, including medical treatment. Laughing at an inmate's request for medication, refusing his requests for medical treatment when the detainee is suffering and their condition is deteriorating, as well as isolating the detainee so his cries for help cannot be heard is outrageous and beyond the bounds of socially tolerable conduct. Defendants argue that the actions of the deputies were committed outside the scope of their employment because the acts were not the type the deputies were hired to perform and did not serve the interest of the County, relying on Vinsonhaler v. Quantum Residential Corp., 189 Or. App. 1 (2003). In determining whether an employee was acting within the course and scope of his employment when he committed an intentional tort,
Conversely, the archdiocese contends that no conduct of Frank that was within the scope of his employment "directly caused" or was a "necessary precursor" to the assault; in particular, even assuming that plaintiff subjectively felt compelled to obey Frank by reason of the latter's position as a priest, there is no evidence that Frank used his position to cultivate a relationship of trust with plaintiff. According to the archdiocese, plaintiffs claim in this case therefore suffers from the same deficiencies as the rejected claims of the plaintiffs in Minnis v. Oregon Mutual Ins. Co., 334 Or 191, 48 P3d 137 (2002), and Vinsonhaler v. Quantum Residential Corp., 189 Or App 1, 73 P3d 930 (2003). Conversely, plaintiffs claim is distinguishable from the claim in Bray v. American Property Management Corp., 164 Or App 134, 988 P2d 933 (1999), rev den, 330 Or 331 (2000), in which there was evidence from which the jury could find that the employer's directive to the employee to prevent the plaintiffs decedent from parking in the employer's garage was a necessary precursor to, and directly caused, the employee's tortious action of stabbing and killing the decedent.
In any event, no reasonable jury could find that Office Depot was nonresponsive given that it conducted a prompt investigation and then fired Klesh. Plaintiffs also cannot hold Office Depot vicariously liable under the doctrine of respondeat superior because no reasonable jury could find Klesh acted "within the course and scope of employment" when he harassed Plaintiffs. Vinsonhaler v. Quantum Residential Corp., 189 Or.App. 1, 73 P.3d 930, 932 (2003). Plaintiffs waived their RIED claims because they did not specifically and distinctly argue those claims in their opening brief.
Although this allegation is conclusory, it is reasonable to infer that Lothman's alleged conduct, which consisted of nonconsensual touching, including attempts to touch plaintiff's breasts, declarations of love, falsely informing other TPD employees that he was having an affair with plaintiff, and writing plaintiff notes with statements that Lothman "wanted to grab [p]laintiff and have his way with her," was not motivated by a desire to serve the TPD and was not the kind of conduct that he was hired to perform as a police officer. See Vinsonhaler v. Quantum Residential Corp., 189 Or.App. 1, 5-6, 73 P.3d 930 (2003) (holding that jury could find that defendant employee who committed sexual harassment during the time and space limits of their employment acted outside of the scope of their employment when no evidence suggested that defendants' conduct was intended to serve their employer). Lothman argues, without support, that plaintiff must allege that Lothman was acting outside of the scope of his employment beneath the heading of the relevant claim and cannot, as plaintiff has done, incorporate by references allegations stated earlier in her complaint.
Id. Arias and his actions do not meet parts (2) and (3) of the test and the fact that employment provides the opportunity to engage in the conduct is not enough. See Vinsonhaler v. Quantum Residential Corp., 189 Or.App. 1, 6-7 (2003) (The fact that employment provided an opportunity to engage in tortious conduct is insufficient to establish the requisite nexus with employment as a matter of law). Reckless Infliction of Emotional Distress