## Facts

- Katrina Q. Plummer received therapy and counseling from Dr. Roque Gerald, a licensed clinical psychologist employed by Center Psychiatrists, Ltd.
- Plummer was depressed, had suicidal ideation, and had previously attempted suicide; Gerald knew of this history.
- During a counseling session at the employer’s office on February 8, 1989, Gerald had sexual intercourse with Plummer.
- Plummer alleged the intercourse constituted assault and battery because Gerald used his professional training and knowledge of her condition to overcome her will so she could not act with volition.
- Plummer sued Center Psychiatrists under respondeat superior, alleging Gerald was acting within the scope of his employment when the assault and battery occurred.
- The trial court sustained the employer’s demurrer and dismissed, ruling the conduct was outside the scope of employment as a matter of law.

## Issues

1. Whether, on demurrer, the allegations permitted only the legal conclusion that a psychologist’s sexual intercourse with a patient during a therapy session was outside the scope of employment, barring respondeat superior.

## Decision

- Reversed and remanded.
- The allegations, taken as true with reasonable inferences, were sufficient to create a fact issue for the jury on whether Gerald acted within the scope of employment.
- The court did not decide that Gerald acted within the scope of employment; it held only that the question could not be resolved against Plummer as a matter of law at the pleading stage.

## Legal Principles

- An employer is vicariously liable for an employee’s torts committed while performing the employer’s business and acting within the scope of employment.
- On demurrer, the court accepts as true all properly pleaded material facts, implied allegations, and reasonable inferences.
- Once an employment relationship is shown, the employer bears the burden to prove the employee was not acting within the scope of employment; if the matter is left in doubt, it is for the jury.
- Scope of employment commonly presents a fact question when allegations permit competing inferences about the connection between the wrongful act and the employee’s job duties and setting.

## Conclusion

Because the complaint alleged that the wrongful conduct occurred during a counseling session at the employer’s office and involved exploitation of the therapeutic relationship and information gained through treatment, the employer’s nonliability could not be determined on demurrer; a jury could be required to decide scope of employment for respondeat superior purposes.


Plummer v. Ctr. Psychiatrists, Ltd., 476 S.E.2d 172 (Va. 1996)