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Minnis v. Oregon Mutual Insurance Company6/7/2002
ver, in holding that Winters's bodily injury was caused immediately by Tuck's actions at the restaurant, the Court of Appeals implies that Tuck's actions at his own apartment were not a cause of her injury, an implication I reject. Tuck acted of his own free will at his apartment, not under the influence of a hallucinogenic drug as the employee alleged in Chesterman. However, as explained below, I do not agree with the assumption by the Court of Appeals, the parties on review, and the majority of this court that Tuck could not have been acting within the course and scope of his employment when he assaulted Winters at his apartment.
In my view, in any case involving properly pleaded allegations of sexual harassment by a supervisor, there is a question of fact regarding whether that supervisor was acting within the course and scope of his employment, even if the assaultive conduct occurs in some location other than the workplace and during non-work hours. That is so because, in any supervisor-employee relationship, there is the potential that the power of the relationship extends beyond that traditional venue of the workplace.
Furthermore, having a relationship that is sufficiently powerful to have influence after hours may serve the supervisor's employer too. In other words, the employer specifically may authorize the supervisor to work as the employee's mentor in all things pertaining to the job , and that mentor-student relationship may be one that benefits the employer most if it extends past five o'clock in the afternoon. In such circumstances, the supervisor who sexually assaults an employee, even if the assault occurs at a private residence, may be acting within the course and scope of his employment just as were the employees whose conduct was at issue in Fearing v. Bucher, 328 Or 367, 977 P2d 1163 (1999), and Lourim v. Swensen, 328 Or 380, 977 P2d 1157 (1999).
In this case, we need not reach the question whether, according to the allegations in Winters's complaint, this is such a case. However, I offer this concurring opinion to make clear that such a theory would be supported by our case law concerning the doctrine of respondeat superior in appropriate and properly pleaded circumstances.
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