clarifying that Oregon’s Fearing test for “scope of employment” is an alternative test only for allegations of intentional torts
How later courts described this case
- clarifying that Oregon’s Fearing test for “scope of employment” is an alternative test only for allegations of intentional torts
- examining whether the allegations in the complaint would permit a jury to find that plaintiff met the claim in question
- "[W]e have recognized that the term usually means actions that are unforeseen, unexpected, unintended or the like." (Internal quotation marks omitted.)
- employer liable in tort for acts of employees when acting within the scope of employment
Written by the judges who cited it.
The opinion
RIGGS, J.,
specially concurring.
I agree with the majority that, according to the terms of the insurance policy and the allegations of Winters’s *208 complaint, defendant did not have a duty to defend Little John’s. Accordingly, I concur in the result. I write separately, however, because I disagree with the majority’s reasoning.
I would hold that defendant did not have a duty to defend Little John’s because the “intentional acts” exclusion of the insurance policy excluded Tuck’s actions from coverage. Accordingly, I would not address the question whether Winters’s bodily injury was caused by actions taken by Tuck during the course and scope of his employment.
Regarding the majority’s conclusion that Winters’s injury was not caused by any of Tuck’s actions during the course and scope of his employment, I agree with the majority that this is not a “time-lag” case. Therefore, the Court of Appeals was incorrect to apply the reasoning of this court’s decision in Chesterman v. Barmon, 305 Or 439 , 753 P2d 404 (1988). Moreover, 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 nonwork 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 *209 that mentor-student relationship may be one that benefits the employer most if it extends past 5:00 p.m. 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.