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Cosgrove v. Lawrence

Superior Court of New Jersey, Appellate Division
Mar 10, 1987
215 N.J. Super. 561 (App. Div. 1987)

Summary

finding that a therapist's sexual relations with his client were outside the scope of employment because they violated ethics rules, were not an accepted therapy technique, and were prohibited by his employers

Summary of this case from Graham v. Huevel

Opinion

Argued February 4, 1987 —

Decided March 10, 1987.

Appeal from The Superior Court, Law Division, Somerset County, 214 N.J. Super. 670, Arnold, J.S.C.

Before Judges FURMAN, DREIER and STERN.

Karen Ann Kubulak argued the cause for appellants Ann E. Cosgrove and Allen Cosgrove ( Garruto, Galex Cantor, attorneys; Bryan D. Garruto, of counsel).

William W. Voorhees, Jr., argued the cause for appellant H. David Lawrence ( Voorhees Stein, attorneys; William W. Voorhees and Diane M. Acciavatti, on the brief).

Michael S. Feldman argued the cause for respondents County of Somerset and Richard Hall Community Mental Health Center ( Ozzard, Rizzolo, Klein, Mauro, Savo Hogan, attorneys; Michael S. Feldman and Arthur D. Fialk, on the brief).


We affirm substantially for the reasons stated by Judge Arnold in his opinion published at 214 N.J. Super. 670 (1986) (decided Aug. 15, 1986). We differ with Judge Arnold only in that we would rest our decision primarily on defendants' immunity from vicarious liability in accordance with the definition of "scope of employment" in Restatement, Agency 2d § 228(1)(a) at 504 (1958):

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

See DiCosala v. Kay, 91 N.J. 159 , 169 (1982), approving the Restatement definition.

Defendant Lawrence was employed by codefendants, both public entities, to perform therapy as a social worker therapist. He engaged several times in sexual intercourse with plaintiff, his client, over more than a year. Sexual relations between him and plaintiff violated the Code of Ethics of the National Association of Social Workers, were not an accepted therapy technique and were prohibited by his employers. In his deposition Lawrence admitted that sexual relations with his client constituted improper conduct on his part, were "never meant to be part of therapy," could not be justified as part of therapy, and were not used "as a treatment technique in any way." He answered "Nothing" to the question what he thought he would accomplish "by having a sexual relationship with her."

We agree with Judge Arnold that, as a matter of law, sexual relations with plaintiff were not conduct of the kind he was employed to perform within the scope of his employment. In the absence of a prima facie showing of vicarious liability, the issue of immunity under the Tort Claims Act, N.J.S.A. 59:2-10, for "willful misconduct" of a public employee need not be reached.

We do not preclude vicarious liability for sexual relations between an employee therapist and a client upon a showing that sexual relations met prevailing professional standards as an acceptable method of therapy and that the employee therapist intended them to combat depression or even to prevent suicide. No such showing was made in the record on this appeal.

Codefendants have cross-appealed from the denial of their motion for summary judgment dismissing the cause of action against them for negligent supervision of Lawrence. We reject their argument as clearly without merit; a factual issue of primary liability was raised on the record, including the expert opinions of Dr. Willis and Dr. Yaker, see Judson v. Peoples Bank Trust Co. of Westfield, 17 N.J. 67 , 74-75 (1954); DiCosala, supra 91 N.J. at 172.

Affirmed.


Summaries of

Cosgrove v. Lawrence

Superior Court of New Jersey, Appellate Division
Mar 10, 1987
215 N.J. Super. 561 (App. Div. 1987)

finding that a therapist's sexual relations with his client were outside the scope of employment because they violated ethics rules, were not an accepted therapy technique, and were prohibited by his employers

Summary of this case from Graham v. Huevel

affirming trial court's finding that a county-employed therapist who engaged in sexual relations with a client were far outside the scope of his employment and beyond the authorized treatment

Summary of this case from Roe ex rel. Roe v. Rutgers

affirming trial court's finding that a county-employed therapist who engaged in sexual relations with a client were far outside the scope of his employment and beyond the authorized treatment

Summary of this case from Roe ex rel. Roe v. Rutgers

In Cosgrove a social worker therapist employed by the County of Somerset and the Richard Hall Community Mental Health Center, both public entities, engaged in sexual relations with a patient.

Summary of this case from Sharples v. State

discussing immunity from vicarious liability and primary liability based on negligence

Summary of this case from R.L. v. State-Operated Sch. Dist
Case details for

Cosgrove v. Lawrence

Case Details

Full title:ANN E. COSGROVE AND ALLEN COSGROVE, HER HUSBAND, PLAINTIFFS-APPELLANTS, v…

Court:Superior Court of New Jersey, Appellate Division

Date published: Mar 10, 1987

Citations

215 N.J. Super. 561 (App. Div. 1987)
522 A.2d 483

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