October 7, 2019

In its opinion filed on August 30, 2019, the Virginia Supreme Court held that the trial court had made erroneous evidentiary rulings regarding the admissibility of expert testimony in a nursing home negligence case where the plaintiff contended that the defendant nursing assistant molested and raped an 85-year-old resident (“plaintiff”) at the defendant nursing home. The administrator of the resident’s estate had sued the nursing assistant and the nursing home, and the jury returned a verdict against both defendants in the amount of $1,750,000.

The Underlying Facts

The defendant nursing assistant’s duties included, among other things, undressing residents, changing their undergarments and diapers, as well as bathing them. To perform these tasks, he had access to the residents’ rooms and could pull a privacy curtain around a resident while performing his duties.

The Estate alleged that one morning in August 2013, the defendant nursing assistant entered the plaintiff’s room and undertook to provide care to her with the door closed and the privacy curtains drawn, with no one else present in the room except a disabled roommate. At that time, the plaintiff was bedridden, non-communicative, and nourished by a feeding tube. The Estate alleged that while the defendant nursing assistant was performing his duties in the course and scope of his employment, he engaged in wrongful conduct that included, but was not limited to, raping the plaintiff as she lay incapacitated on her bed. The plaintiff further alleged that in addition to rape, the defendant nursing assistant’s wrongful conduct included acts of touching, sexually abusing, and molesting the plaintiff. At some point, another employee entered the room, briefly observed some aspect of this conduct, and later (how long was in dispute) reported what she saw to an on-call supervisor.

The defendant nursing home challenged the Estate’s contention of respondeat superior liability for the defendant nursing assistant’s molestation and rape of the plaintiff. The trial court issued an order that stated, in part, “As to that Plea in Bar, the [c]ourt heard evidence and argument and finds that [the defendant nursing assistant’s] acts were committed while he was performing duties of [the defendant nursing home] and in execution of those services for which he was employed.” The trial court subsequently barred the defendant nursing home from presenting any evidence at trial suggesting that the defendant nursing assistant had acted outside the scope of his employment when he molested and raped the plaintiff. Interestingly, during jury deliberations, the jurors presented a handwritten question to the court: “Is an employer equally liable as the employee when the employee engages in a criminal act?”

The Virginia Supreme Court stated, “the court never explained how it could have decided a dispute concerning vicarious liability on the merits by relying solely on the allegations of a complaint.” The Virginia Supreme Court further stated: “At the plea-in-bar hearing, neither party presented evidence on what specific acts [the defendant nursing assistant] had committed, when he had committed them, what duties or services he had allegedly been engaged in while committing those acts, or what his motives had been. The trial court could not have made a factual finding on these issues without such facts. As the Estate argued at the plea-in-bar hearing (a position later silenced by the court’s letter opinion), all disputed factual issues should have been decided at trial by the jury.”

The Virginia Supreme Court held: “Our prior precedent, however, dictates that we hold that the specificity of the original complaint, coupled with the unique pleading presumption applicable to respondeat superior claims, precludes a finding at the pleading stage of this case that, as a matter of law, the rape was outside the scope of the defendant nursing assistant’s employment.”

Source Our Lady of Peace v. Morgan, Record No. 180736.

If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Virginia or in another U.S. state due to nursing home neglect, nursing home negligence, nursing home abuse, nursing home understaffing, nursing home resident-on-resident attack, nursing home sexual abuse, nursing home rape, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.

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