COOPER (CHARLENE), ET AL. VS. UNTHANK (GARY), ET AL.
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RENDERED: OCTOBER 16, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002576-MR
CHARLENE COOPER; JIM COOPER
AND M.C.
v.
APPELLANTS
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 06-CI-01599
GARY UNTHANK, JR.; COMMUNITY
PENTECOSTAL CHURCH, INC. AND
COMMUNITY CHRISTIAN ACADEMY
APPELLEES
AND
NO. 2007-CA-002596-MR
LORI EUBANKS AND A.T.
v.
APPELLANTS
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 06-CI-01513
GARY UNTHANK, JR.; COMMUNITY
PENTECOSTAL CHURCH, INC. AND
COMMUNITY CHRISTIAN ACADEMY
APPELLEES
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: KELLER, MOORE AND THOMPSON, JUDGES.
THOMPSON, JUDGE: The appellants, Lori Eubanks, individually and on behalf
of her daughter, A.T., and Charlene Cooper, individually and on behalf of her
daughter, M.C., filed actions against the Community Pentecostal Church, Inc.,
Community Christian Academy and Gary Unthank.1 The claims were filed after
A.T. had sexual intercourse with Gary Unthank, a volunteer girls’ basketball coach
at the Community Christian Academy, and after Unthank allegedly assaulted M.C.
The circuit court concluded, as a matter of law, that Unthank’s acts
were not foreseeable or known to the appellees and granted summary judgment to
the appellees. The court held that the appellants were not vicariously liable for
Unthank’s acts because he was not acting within the scope of his duties as a coach
when he committed the acts; that the appellants could not sustain a cause of action
for loss of parental consortium; and that the facts alleged were insufficient to
sustain a cause of action for the tort of outrage.
On appeal, only the issues of negligent retention/hiring and the tort of
outrage are pursued. Because appellants presented sufficient evidence to create a
1
Summary judgment was entered against Unthank and that portion of the case was held in
abeyance pending the outcome of this appeal.
2
genuine issue of material fact as to whether the appellees knew or should have
foreseen that Unthank would commit the acts alleged by appellants, we reverse.
Otherwise, the judgment is affirmed.
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR 56.03.
“[T]he proper function for a summary judgment . . . is to terminate litigation when,
as a matter of law, it appears that it would be impossible for the respondent to
produce evidence at the trial warranting a judgment in his favor.” Paintsville
Hospital Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). (internal quotations
omitted). “The records must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). With the standard of review as our guide, we recite the facts presented by
the appellants in response to the summary judgment motion.
In November 2005, the principal of the Community Christian
Academy, Tara Bates, appointed twenty-three year old Unthank as the girls’
basketball team coach. The Academy was a ministry of the Community
Pentecostal Church of which Unthank was a member. Pursuant to the Academy’s
policy, a criminal background check was performed prior to Unthank’s
appointment.
3
Although Unthank previously resided in Ohio, only a Kentucky
background check was performed which did not reveal any criminal history.
However, Unthank had drug-related charges in March 2000, June 2000, and June
2003, and various traffic related offenses. Prior to his appointment, he told
members of the congregation, including Bates, about his prior drug use and
numerous church members confirmed that Unthank “testified” in church regarding
his drug use.
A.T. and M.C. were members of the girls’ basketball team. After his
appointment as coach, Unthank began telephoning A.T. and providing her rides to
her residence. Upon learning of the contact between her daughter and Unthank, on
January 13, 2006, A.T.’s mother, Lori Eubanks, informed Bates about the late
night phone calls A.T. received from Unthank and stated that she found his
conduct inappropriate. Eubanks recalled that Bates was concerned that if she
removed Unthank as coach, the team would be disassembled but assured Eubanks
that Unthank would be supervised. Subsequently, Bates met with Unthank and the
boys’ basketball coach, Junior Philpot. Philpot recalled that Bates told Unthank to
stop calling A.T. and giving her rides in his car.
Despite the admonition given by Bates, on January 21, 2006, Unthank
had sexual intercourse with fourteen-year old A.T. On January 28, 2006, Unthank
again had sexual intercourse with A.T. Subsequently, Unthank pleaded guilty to
third-degree rape.
4
M.C. testified that Unthank’s assault on her occurred on January 23,
2006. Unthank was permitted by the appellees to drive the Academy van to an
away basketball game. During the girls’ game, M.C. was struck by a basketball
causing her to leave the game. Following the girls’ game and after the boys’ game
begun, Unthank approached M.C. and asked her to walk to the van with him.
M.C. followed Unthank into the van where he grabbed her legs and began rubbing
her arm. M.C. testified that Unthank ceased his sexual advances because other
team members came to the van. Unthank denies that he assaulted M.C.
During discovery, there was testimony offered by several team
members that Unthank made sexual advances toward the girls and that he was
“weird” and “creepy.” There was also testimony that prior to Unthank’s statutory
rape of A.T. and alleged assault on M.C., a student who knew of Unthank’s calls to
A.T. suspected a possible sexual relationship between the two and informed Bates
regarding his suspicions. Unthank had also been removed from the Church youth
ministry because he engaged in drug-related activity.
In their appeals, appellants do not pursue their claims asserted against
the appellees on the basis of respondeat superior, apparently conceding that
Unthank’s criminal acts were not in furtherance of the interest of the Academy or
the church. See Patterson v. Blair, 172 S.W.3d 361 (Ky. 2005). They instead
argue that the facts presented created a jury question on their claims for negligent
hiring/retention.
5
Negligent hiring/retention claims were expressly recognized in
Oakley v. Flor-Shin Inc., 964 S.W.2d 438 (Ky.App. 1998), where the Court held
that liability can be imposed on an employer who knew or should have known that
the employee was unfit for the job in which he was employed and that his
placement or retention in that job created an unreasonable risk of harm. Id. at 442.
Negligent hiring/retention claims differ from liability based upon respondeat
superior in that the law imposes a duty upon the employer to use reasonable care in
the selection or retention of its employees. Ten Broeck Dupont, Inc. v. Brooks, 283
S.W.3d 705 (Ky. 2009). Although under the doctrine of respondeat superior the
employer is strictly liable for the act, under the theory of negligent hiring/retention
the employer's liability may only be predicated upon its own negligence in failing
to exercise reasonable care in the selection or retention of its employees. Id. at
732. Thus, the focus is on the employer’s conduct and requires that the traditional
negligence elements of a negligence claim be established --- duty, breach, and
consequent injury. Grubbs ex rel. Grubbs v. Barbourville Family Health Center,
P.S.C., 120 S.W.3d 682, 687 (Ky. 2003). Generally, duty presents a question of
law, while breach and injury are questions of fact for the jury to decide. Pathways,
Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky.App. 2003).
The imposition of a duty upon the employer in a negligent
hiring/retention claim arises from the special relationship between the tortfeasor
and the defendant.
6
The Second Restatement provides that a special
relationship exists between master and servant only if the
servant is using an instrumentality of the employment
relationship to cause harm, i.e., either the master's chattel
or premises entered by virtue of the employment
relationship. Restatement (Second) of Torts § 317
(1965). The proposed Third Restatement puts this
requirement more succinctly: “Special relationships
giving rise to the duty provided in [§ 41(a) ] include: ...
(3) an employer with employees when the employment
facilitates the employee's causing harm to third parties.”
Restatement (Third) of Torts: Liability for Physical Harm
§ 41(b)(3) (Proposed Final Draft No. 1, 2005) (emphasis
added). See also Marusa v. Dist. of Columbia, 484 F.2d
828, 831 (D.C.Cir.1973) (city had duty of reasonable
care in training and supervision of police officer who
caused off-duty injury with service revolver); Ponticas v.
K.M.S. Investments, 331 N.W.2d 907, 911 (Minn.1983)
(apartment owner had duty to exercise reasonable care in
hiring employee who later used passkey issued by
apartment owner to rape tenant); McCrink v. City of New
York, 296 N.Y. 99, 71 N.E.2d 419, 422 (1947) (city had
duty of reasonable care in retention of police officer who,
while off-duty, shot and killed plaintiff's decedent with
service revolver); Hutchison ex rel. Hutchison v. Luddy,
560 Pa. 51, 742 A.2d 1052, 1060 (1999) (evidence
sufficient to support negligent supervision and retention
claim against employer where employee used his status
as such to enter minor's motel room where sexual abuse
occurred). Again, the common thread through the abovedescribed employment relationships is that the employer
has a real means of control over the employee which, if
exercised, would meaningfully reduce the risk of harm.
See Weaver v. African Methodist Episcopal Church, Inc.,
54 S.W.3d 575, 582-83 (Mo.Ct.App. 2001) (“Such
limitations serve to restrict the master's liability for a
servant's purely personal conduct which has no
relationship to the servant's employment and the master's
ability to control the servant's conduct or prevent
harm.”).
7
Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 852 (Ky.
2005). We conclude that the requisite special relationship exists between a school
and its students to impose liability on a school for negligent retention/hiring.
The duty of a school system and its employees to protect students
entrusted to its care and control is one of utmost societal concern and one that must
be adhered to with reverence. When a child is under the control and supervision of
school personnel, the protective custody of their parents is substituted by teachers,
coaches, and other school personnel. As a matter of public policy and morality, a
basic assurance to each student must be that in their vulnerable position as a
student, they will not be subjected to sexual acts by those in supervisory positions.
The school’s duty to protect its children from harm by its personnel applies
whether the tortfeasor is a paid employee or, as in this case, a person placed in
authority over children as a volunteer.
Despite the existence of the school’s general duty to protect the
children in its care, the scope of that duty is limited by the rule that the risk of
injury must be reasonably foreseeable. See, e.g., Lewis and B & R Corporation, 56
S.W.3d 432 (Ky.App. 2001); Fryman v. Harrison, 896 S.W.2d 908 (Ky. 1995);
Standard Oil Co. v. Manis, 433 S.W.2d 856 (Ky. 1968); Commonwealth, Dept. of
Highways v. Widner, 388 S.W.2d 583 (Ky. 1965). “[A]bsent foreseeability, no
duty, the breach of which entails liability, could arise.” Ten Broeck Dupont, Inc.,
283 S.W.3d 705, 732 (Ky. 2009). The circuit court relied upon the lack of
8
foreseeability as the basis for its conclusion that no material facts existed and its
award of summary judgment. We conclude that the trial court erred.
If the appellants’ claims were premised solely on Bates’s failure to
conduct an Ohio background check and the disregard of Unthank’s past drug use,
we would agree with the circuit court. Although a voluntary assumption of a duty
can give rise to tort liability, Unthank’s criminal past did not render it foreseeable
that Unthank would commit criminal sexual acts. See Grand Aerie Fraternal
Order of Eagles, 169 S.W.3d at 847. While arguably Unthank’s drug history and
drug-related convictions did not render him a desirable athletic coach, there was
nothing in his criminal history to suggest that he had a propensity to sexually abuse
children. However, there are additional facts that compel reversal of the circuit
court’s judgment and our conclusion that there is a question of material fact as to
whether it was foreseeable that Unthank would sexually abuse a child.
Bates was warned by students and A.T.’s mother that Unthank had
engaged in inappropriate behavior toward girls at the school. As a result, Bates
verbally reprimanded Unthank and instructed him to cease further contact with
A.T. Furthermore, students informed Bates that they believed Unthank’s conduct
toward female students was inappropriate. Although Bates and other school
personnel may not have known that Unthank would commit or was committing
criminal acts, the law only requires that it be reasonably foreseeable that there was
a risk of harm. Flor-Shin, Inc., 964 S.W.2d at 442. It is not beyond reason for a
jury to conclude that Bates’s knowledge of Unthank’s late night phone calls to
9
female students, providing transportation to A.T. in his private vehicle, and
information gained from A.T.’s mother and other sources, make it foreseeable that
he would commit the acts alleged by the appellants. Therefore, we conclude that
the summary judgment must be reversed.
The remaining issue is appellants’ claim for the tort of outrage. We
agree with the circuit court that under the facts presented, a claim for the tort of
outrage cannot be sustained. An essential element of the tort is that the actor
intended to inflict emotional distress and its infliction was not merely the
consequence of a separate compensable tort. As explained in Rigazio v.
Archdiocese of Louisville, 853 S.W.2d 295, 298-299 (Ky.App. 1993):
Taking into account the history of the tort of outrage, and
its reason for being as a “gap-filler” providing redress for
extreme emotional distress in those instances in which
the traditional common law actions did not, we believe
that § 47 recognizes that where an actor's conduct
amounts to the commission of one of the traditional torts
such as assault, battery, or negligence for which recovery
for emotional distress is allowed, and the conduct was
not intended only to cause extreme emotional distress in
the victim, the tort of outrage will not lie. Recovery for
emotional distress in those instances must be had under
the appropriate traditional common law action. The tort
of outrage was intended to supplement the existing forms
of recovery, not swallow them up.
Even when viewed most favorably to appellants, there is no evidence that the
appellees intended to invade A.T.’s and M.C.’s right to be free from emotional
distress. Id. Therefore, in regard to the claims for intentional infliction of
emotional distress, summary judgment was proper.
10
Based on the foregoing, the summary judgment entered in favor of the
appellees on appellants’ claims for negligent hiring/retention is reversed. In all
other respects, the judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES,
COMMUNITY PENTECOSTAL
CHURCH, INC. AND COMMUNITY
CHRISTIAN ACADEMY:
Eric C. Deters
Independence, Kentucky
Arnold Taylor
Covington, Kentucky
Susanne M. Cetrulo
Edgewood, Kentucky
11
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