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Minnis v. Oregon Mutual Insurance Company6/7/2002
ng within the course and scope of his employment when he was at his own apartment. Little John's argues, instead, that it was Tuck's actions at the workplace -- his "two-month pattern of sexual intimidation and harassment," as the Court of Appeals described it -- that resulted in Winters's injury. 162 Or App at 208. Because that conduct was undertaken within the course and scope of Tuck's employment, Little John's argues, it could be vicariously liable for the resulting injury to Winters. We agree with defendant, as explained below.
In most instances, the relevant act for respondeat superior analysis is the act that was the immediate cause of the harm. See Stroud v. Denny's Restaurant, 271 Or 430, 437, 532 P2d 790 (1975) (respondeat superior analysis is made as of time injury occurred). However, this court has held that that rule is inappropriate in cases in which "there is a 'time-lag' between the act allegedly producing the harm and the resulting harm." Chesterman, 305 Or at 444. In those cases, " he focus should be on the act on which vicarious liability is based and not on when the act results in injury." Id. So, for example, if an employee ingests a drug during the course and scope of employment that causes that employee to hallucinate and to commit a sexual assault on his way from one job site to another, the "act," for purposes of the first requirement of the respondeat superior test, is the act of ingesting the drug, not the assaultive conduct that was the immediate cause of injury to the victim of the sexual assault. Id. at 443. Vicarious liability may be imposed if acts that were within the course and scope of employment "resulted in the acts which led to injury" at issue. Id. (emphasis added).
Implicitly recognizing that Tuck was not acting within the course and scope of his employment when he assaulted Winters at his apartment, Little John's argues that this court should use the "time-lag" standard described in Chesterman. However, reading Winters's complaint with that standard in mind reveals that her allegations do not describe the requisite causal connection between the workplace harassment and the sexual assault at the apartment.
Winters does not allege that the workplace harassment that preceded the episode at the apartment -- the explicit sexual comments set out above --"resulted in" the sexual assault at the apartment. She alleges instead that the episode at the apartment was one of several episodes in a series. From those allegations, a reasonable juror could not have inferred that one example of Tuck's misconduct resulted in or caused another. The sexual harassment at the workplace and the sexual abuse at the apartment were related to each other only as examples of Tuck's pattern, not as "cause" and "effect." Accordingly, the Chesterman "time-lag" standard does not apply to Winters's allegations.
In this case, the act that resulted in Winters's injury at Tuck's apartment was Tuck's abusive conduct at his apartment. Therefore, that is the conduct to which we apply the traditional respondeat superior test. In regard to the application of that test to Tuck's conduct at the apartment, Little John's does not argue that Tuck was then acting within the course and scope of his employment and, in our view, could not persuasively do so: Winters's allegations do not suggest that Tuck's assaultive conduct at the apartment "occurred substantially within the time and space limits authorized by the employment" as required under Chesterman, 305 Or at 442. Accordingly, Winters's allegations could not have imposed vicarious liability on Little John's for Tuck's actions at his apartment. Because any other bodily injury Winters suffered was excluded from coverage, we h
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