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Sebastian v. District of Columbia

January 31, 1994

ANTOINETTE SEBASTIAN, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Richard A. Levie, Trial Judge)

Before Schwelb, Farrell, and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: The plaintiff in the trial court appeals the dismissal of two counts of a seven count complaint against the District of Columbia ("District"), setting forth claims stemming from a sexual assault committed upon her by an ambulance attendant employed by the District. She urges this court to hold the District vicariously liable for intentional torts by an employee, for acts committed outside the scope of employment, under a theory of "breach of non-delegable duty of protective care." We decline to do so and accordingly affirm.

I.

On June 2, 1988, appellant, seriously injured in an automobile accident, was transported in a District of Columbia owned and operated ambulance for emergency treatment at D.C. General Hospital. Claiming that during the ride to the hospital the ambulance attendant, David Joy, sexually molested her, she filed a seven count complaint against the District. *fn1 The only count considered by the jury was Count I, alleging that the government was negligent in the hiring, training, supervision, and duty assignment of Joy. The jury returned a verdict in favor of the District of Columbia on that count. Prior to trial, the trial court had dismissed the other counts, including Counts VI and VII, which alleged breach of implied contract of safe carriage and breach of non-delegable duty to provide safe carriage, ruling that the "public duty doctrine" barred recovery. Only the trial court's ruling as to those two counts is challenged in this appeal.

The District argues here, for the first time, that appellant's claims are barred by the statute of limitations. Alternatively, it contends that dismissal was proper because the rule of respondeat superior does not apply to intentional torts committed by employees acting outside the scope of employment. *fn2 With respect to the latter contention, appellant maintains that vicarious liability can be imposed on the District on the basis of a breach of a non-delegable duty of protective care. Because we hold that there can be no vicarious liability on the part of the District under these circumstances, we do not address the District's statute of limitations claim. *fn3

II.

Appellant acknowledges that the causes of action asserted by her have not heretofore been recognized in this jurisdiction. She asks this court to fashion new law because, she argues, the District should be held accountable under the circumstances of this case, for the torts of its employees -- even if the tortious act is beyond the scope of employment -- under a theory of breach of non-delegable duty of protective care. Appellant claims that "the better reasoned case law, the RESTATEMENT (SECOND) OF AGENCY and sound public policy all support the proposition that the District of Columbia should be held accountable for the subsequent conduct of its ambulance attendant." After reviewing the material presented, we decline to accept appellant's invitation because we are of the view that such an expansion of tort liability invokes significant public policy concerns that are better left to the legislature to resolve.

III.

It is well settled that "under the doctrine of respondeat superior, an employer may be held liable for the acts of his employees committed within the scope of their employment." Boykin v. District of Columbia, 484 A.2d 560, 561 (D.C. 1984) (citation omitted). Boykin involved a sexual assault on a school child by a District employee. At trial, Boykin contended that "the District was liable for damages either vicariously, based on the theory of respondeat superior, or directly, for negligence in hiring or supervising [the employee]." Id. The trial court granted the District's motion for summary judgment, finding that the District could not be held liable on the respondeat superior ground because the employee's act was outside the scope of his employment. Id. at 564. In affirming the decision of the trial court, we observed that while the victim had suggested that the government could be held liable for acts committed beyond the scope of employment, there appeared to be no "authority that would authorize imposition of vicarious liability" for such acts. Id. at 564 n.3. In declining to "pass upon the issue" whether liability should be extended to include acts committed by employees outside the scope of employment, we observed that such broadened liability has usually been limited to common carriers, innkeepers, and hospitals. Id.

Appellant now asks us to do what the Boykin court declined to do, at least on the facts of Boykin, i.e., extend tort liability to acts committed by employees outside the scope of their employment. This extension of vicarious liability could be based, argues appellant, on either of two grounds: (1) that the District's ambulance service is a common carrier and common carriers are subject to a broader scope of liability than are others, or (2) a special relationship is created between the ambulance service and an ambulance passenger, who surrenders control over his or her safety, which imposes a special duty upon the ambulance service to protect the passenger from harm whatever the source. For the reasons set forth below we reject both grounds as bases for recovery.

A. Common Carrier

Appellant urges us to find liability on the part of the District, under the facts presented here, by adopting the so-called "common carrier" doctrine which essentially imposes "no-fault" liability, and by extending that liability to include ambulance services. Because under our precedents, unlike the rule in a handful of other jurisdictions, common carriers are not subject to a wider scope of liability than others, we find no need to reach the question of whether an ambulance is a common carrier for those purposes.

In one jurisdiction that recognizes broad common carrier liability, the highest court has observed that "common carriers . . . are held liable for the negligence or the wilful wrongs of their employees, under the rule that a carrier is under an obligation to use a very high degree of care to prevent injuries that might be caused by the wilful misconduct of others." Worcester Ins. Co. v. Fells Acres Day Sch. Inc., 408 Mass. 393, 558 N.E.2d 958, 967 (Mass. 1990) (citations and internal punctuation and quotations omitted). *fn4 In addition, other jurisdictions hold common carriers liable for the misconduct of their employees regardless of whether or not the tortious conduct is within the scope of employment. See, e.g., Rabon v. Guardsmark, Inc., 571 F.2d 1277, 1280 (4th Cir. 1978) (observing that "South Carolina has recognized the non-delegable duty exception to the general rule of respondeat superior " for cases involving common carriers); Commodore Cruise Line, Ltd. v. Kormendi, 344 So. 2d 896, 898 (Fla. Dist. Ct. App. 1977) ("common carrier is liable to a passenger for the wrongful acts of his or her employees . . . notwithstanding the fact that said acts are not within the scope of the employees employment"); Co-Op Cab Co. v. Singleton, 66 Ga. App. 874, 19 S.E.2d 541, 542 (Ga. Ct. App. 1942) (cab company held liable for rape of passenger by cab driver because passengers are "entitled to be protected against the wanton and wilful act of violence wrongfully committed . . . by the servant of the ...


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