Bozarth v. Harper Creek Board of Education , 94 Mich. App. 351 ( 1979 )

94 Mich. App. 351 (1979) 288 N.W.2d 424

BOZARTH
v.
HARPER CREEK BOARD OF EDUCATION

Docket No. 78-5025.

Michigan Court of Appeals.

Decided December 18, 1979.

Starr & Cornell, for plaintiff.

Dilley, Dewey & Waddell (by Jonathan S. Damon), for defendant Harper Creek Board of Education.

Before: CYNAR, P.J., D.F. WALSH and L.B. BEBEAU,^[*] JJ.

D.F. WALSH, J.

Plaintiff June Lower Bozarth, acting individually and on behalf of her minor son, appeals entry of summary judgment in favor of defendant Harper Creek Board of Education. We have carefully considered the arguments raised on appeal and find no error in the dismissal of counts I and II of plaintiff's complaint.

Plaintiff's complaint arose out of alleged homosexual assaults by a teacher, defendant Mixson, on plaintiff's son. Count I alleged defendant school board's negligence in the hiring and supervision of Mr. Mixson. Count II alleged the board's vicarious liability for Mixson's conduct under the doctrine of respondeat superior.^[1] The trial court found that the defense of governmental immunity barred count I and that plaintiff had not stated a claim under the respondeat superior doctrine.

The trial court's determination that the defense of governmental immunity defeats the claim stated in count I of plaintiff's complaint was correct. The screening, hiring and supervision of teachers is a governmental function. Galli v Kirkeby, 398 Mich. 527; 248 NW2d 149 (1976).

A homosexual assault by a teacher on a student is clearly outside the scope of the teacher's employment. See Galli v Kirkeby, supra, 542-543 (dissenting opinion of COLEMAN, J.). The respondeat superior doctrine, therefore, does not apply in such a situation to subject the governing school board to liability. 1 Restatement Agency, 2d, § 219, p 481. McCann v State of Michigan, 398 Mich. 65, 71; 247 NW2d 521 (1976) (opinion of KAVANAGH, C.J.).

By brief and oral argument, plaintiff has focused on the following language, taken from the Restatement on Agency, and found in Justice KAVANAGH'S opinion in McCann, supra, 71:

"The employer is also liable for the torts of his employee if ``the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation'. 1 Restatement Agency, 2d, § 219(2)(d), p 481." (Emphasis added.)

It is plaintiff's argument that a jury must be allowed to determine whether Mixson "was aided in accomplishing the tort by the existence of the agency relation".

Plaintiff has cited no cases in which this subsection of the Restatement has been applied as now urged by plaintiff. In our view, proper application of the principle of liability enunciated in the subsection is limited to situations where, from the viewpoint of the person being harmed, the agent appears to have been acting within the scope of his employment.^[2] Justice KAVANAGH so framed the issue in McCann:

"The issue in this case thus becomes whether these employees of the State of Michigan were acting within the apparent scope of their employment." (Emphasis added.) 398 Mich. 65, 71-72.

"The complaint in this case alleges that the tortious conduct of the individual defendants was ``made possible by their positions with the State Hospital, which parties purportedly acted on behalf of said hospital, vested with apparent authority to do so * * *'. * * * I am satisfied that as a matter of law the complaint in this case contains allegations which, if proven, would properly allow the fact finder to determine that the torts were committed by employees of the State of Michigan who were acting within the apparent scope of their authority." (Emphasis added.) 398 Mich. 65, 72.

We are not persuaded that any factual development of plaintiff's allegations under count II could justify recovery against defendant school board under the doctrine of respondeat superior. A teacher's homosexual assaults on his student constitute conduct clearly outside the scope of the teacher's employment and outside the teacher's apparent authority. The mere fact that an employee's employment situation may offer an opportunity for tortious activity does not make the employer liable to the victim of that activity. Summary judgment on count II was, therefore, properly entered in favor of defendant school board.

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] In count Ii, plaintiff alleged, inter alia, as follows:

"19. That Defendant Mixson was an agent of Defendant Board and while so employed by Defendant Board did commit homosexual assaults on Jessy Lower, forcing him to submit to and commit acts of indignity and human revulsion, all too repulsive to fully set forth in this pleading.

"20. Prior to, during, and after the homosexual assaults, Defendant Mixson was a sixth grade teacher employed by Defendant Harper Creek Board of Education.

"21. Defendant Mixson was acting within the scope of the Defendant Board's employment and in furtherance of its business when the above-mentioned attacks occurred on Jessy Lower."

[2] See 1 Restatement Agency, 2d, § 219, Comment on Subsection (2), pp 484-485, with accompanying cross-reference to 1 Restatement Agency, 2d, § 261, pp 570-571.