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Jury should have heard scope of employment issue

Where the trial court ruled, without hearing any evidence on the matter, that a nursing assistant was within the scope of his employment when he molested and raped an elderly nursing home resident, the trial court erred by removing this issue from the jury.

The jury’s $1.75 million verdict is reversed and the case is remanded for further proceedings.


The administrator of Gertrude Austin’s estate sued a nursing assistant, Martin, and his employer, Our Lady of Peace, a nursing home where Austin resided. The complaint alleged that while in the scope of his employment, Martin molested and raped Austin. The complaint alleged, in part, that Our Lady of Peace was vicariously liable under respondeat superior principles for Martin’s actions.

Our Lady of Peace responded with a plea in bar challenging the respondeat superior allegations. At a hearing, the executive director offered no “evidence describing any factual aspect of Martin’s molestation and rape of Austin.” The estate did not provide evidence or testimony either. It argued that once it alleged that Martin’s acts were within the scope of his employment, the burden shifted to Our Lady of Peace to show that he was outside the scope of employment and that a jury should decide the issue.

The trial court took the plea in bar under advisement and denied it in a letter opinion issued four months later. In the opinion letter, the court stated that “Martin’s willful and malicious acts were committed while he was performing duties at Our Lady of Peace and in execution of those services for which he was employed[.]” The order proffered by the estate stated “As to that Plea in Bar, the [c]ourt heard evidence and argument and finds that Mr. Martin’s acts were committed while he was performing duties of Our Lady of Peace and in execution of those services for which he was employed.” The court crossed out language stating that the court found that “Martin was in the course and scope of his employment when he committed the rape of Mrs. Austin.”

Later, the court granted the estate’s motion in limine to prevent Our Lady of Peace from presenting any evidence that challenged the respondeat superior finding. The estate argued that it was “disingenuous” for Our Lady of Peace to claim there was a jury issue “‘simply because it disagrees with the [c]ourt’s ruling on the matter.’ … The Estate did not explain how the trial court could have decided the scope-of-employment issue without having heard any evidence on it.”

The trial court, in granting the motion, stated that it found “on the merits, and as a clarification of its prior ruling, that … Martin’s acts were committed within the course and scope of his employment with [Our Lady of Peace].’ … Like the Estate, however, 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.”

At trial, the court instructed the jury that the matter of vicarious liability had been previously decided and that the court had determined Martin was Our Lady of Peace’s employee and was acting in the scope of his employment.

The jury found both defendants liable and awarded the estate $1.75 million. Our Lady of Peace’s appeal petition was granted.


“At the plea-in-bar hearing, neither party presented evidence on what specific acts Martin 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.

“By deciding the scope-of-employment issue before trial and instructing the jury that the issue had already been decided against Our Lady of Peace, the trial court effectively directed a verdict against Our Lady of Peace on the vicarious liability claims without hearing a single witness on the subject. …

“Needless to say, factual findings cannot be made based solely upon allegations in a complaint. The trial court thus erred by issuing its plea-in-bar ‘clarification’ order, … which granted the Estate’s motion in limine and precluded Our Lady of Peace from introducing any evidence regarding vicarious liability, and further erred by instructing the jurors that this disputed issue was not their concern. …

“[W]e reverse the trial court’s final judgment and remand this case for further proceedings consistent with this opinion.”

Our Lady of Peace, Inc. v. Morgan. Record No. 180736 (Kelsey; McCullough, joined by McClanahan, concurring; Mims, joined by Powell, concurring in part and dissenting in part) Aug. 30, 2019 (Appeal from Albemarle Circuit Court). William Axon Marr Jr., Tiago Duncan Bezerra, James Jeffrey Knicely for Appellants. Maria Jordan Diaz, Kara Lynne Tappan for Appellee. VLW 019-6-072, 30 pp.