16 Trial Lawyer • Winter 2022 employment. 2. Whether the employee was motivated, at least partially, to serve the employer. 3. Whether the act was of a kind that the employee was hired to do. 305 Or at 442. In 1999, the court broadened this test to non-“time lag” assault cases to reverse dismissal of vicarious liability claims in two child sexual abuse cases, one against the Boy Scouts for abuse by a volunteer (Lourim v. Swensen, 328 Or 380 (1999)) and the other against the Archdiocese of Portland for abuse by a priest (Fearing). In both cases, the plaintiffs alleged acts within the perpetrator employees’ scope of employment — such as forming close relationships of trust with minors — directly led to the perpetrators abusing them. The Oregon Supreme Court agreed, holding a jury reasonably could infer the assaults were “merely the culmination of a progressive series of actions,” that the authorized actions were a “necessary precursor” to the assaults, and the assaults were a “direct result” of the authorized actions. Lourim, 328 Or at 386-87. In short: the Chesterman three-part test is used to determine whether the employer had the right to control the authorized conduct at issue that directly led to the sexual assault. This ensures that there is a nexus between the employee’s job duties and the employer, so liability is not imposed arbitrarily. Be wary of cases in which a job provided a “mere opportunity” for two people, one of whom later assaults the other, to meet. There has to be more of a nexus between the assailant’s authorized job duties and the assault. For example, Oregon cases have held that vicarious liability was inappropriate when a supervisor of a pizza parlor sexually assaulted one of his employees at his apartment (Minnis v. Or. Mutual Ins. Co., 334 Or 191 (2002) and when a co-worker sexually assaulted another co-worker at a hotel attached to an academic conference they both attended (Johnson v. Or. St. Bd. of Higher Edu., 272 Or App 710, 719 (2015). If a father who is also a church pastor sexually abuses his daughter, it will be difficult to assess vicarious liability against the church, because the father primarily formed the relationship with his daughter through their familial relationship. Evidence to prove course and scope Evidence you want to look for to prove the actions were within the course and scope of employment include documentary evidence such as the employee’s job description and outline of responsibilities, the employment contract, the rules and regulations that applied to the employee (e.g. employee handbooks), and company representations to third parties about the employee. Think creatively and look beyond formal “employment documents.” You can often find good evidence of the right to control fromwebsites (for example, spas advertising massage therapy services), social media sites, newsletters, calendars and other customer-facing marketing materials. Usually, prior to litigation, the employer is happy to reap the benefits of the employee and tout their connections and accomplishments, but when litigation hits, will act like they barely knew the employee from some random person Vicarious Liability Continued from p 15 You can often find good evidence of the right to control from websites (for example, spas advertising massage therapy services), social media sites, newsletters, calendars and other customer-facing marketing materials.
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