Stern v. Ritz Carlton Chicago

Annotate this Case
SIXTH DIVISION
September 30, 1998

Nos. 1-97-2148
1-97-2451

JUDITH STERN and YVETTE SCHLUMPF,

Plaintiffs-Appellants,

v.

RITZ CARLTON CHICAGO,
SVETLIN TANEV, Indiv., and
ARNOLD VODOVOSOV, Indivi.,

Defendants-Appellees. )
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Appeal from the
Circuit Court of
Cook County

No. 95 L 17244

Honorable
Joseph N. Casciato,
Judge Presiding. JUSTICE QUINN delivered the opinion of the court:
While guests at defendant Ritz Carlton Hotel (the Ritz),
plaintiffs Judith Stern (Stern) and Yvette Schlumpf (Schlumpf)
allege that defendants Svetlin Tanev (Tanev) and Arnold Vodovosov
(Vodovosov) sexually assaulted them during the course of each
plaintiff's massage. Plaintiffs filed a three-count complaint
against the Ritz and Tanev and Vodovosov, individually. The Ritz
filed a motion for summary judgment, which the trial court granted.
On appeal, plaintiffs contend that the trial court erred in
granting summary judgment in favor of the Ritz because Tanev and
Vodovosov's conduct was within the scope of their employment. For
the reasons that follow, we affirm.
Plaintiff Stern alleges that on September 15, 1995, while she
and her husband were guests at the Ritz, Stern made arrangements to
receive a massage. A female attendant took Stern to a small room
with a table and told her to disrobe and recline on the table under
a sheet. After the attendant left the room, Tanev entered, made
small talk with Stern, and began the massage.[FN1] Tanev massaged
Stern's shoulders, back and legs while she laid on her abdomen.
Tanev then asked Stern to turn onto her back and exposed her
abdomen and legs to the groin. Tanev massaged her legs and
abdomen. While rubbing her lower abdomen, he said "you like?" He
then proceeded to place his fingers in her pubic hair, by the
vaginal opening, and touched the side of her vagina. Stern
objected and ordered Tanev out of the room.
Stern immediately informed a hotel manager of the incident.
The manager told Stern that he would "look into" making an
investigation. Stern discussed the incident with her husband and
then notified the police. After a police investigation, Tanev was
charged with battery and sexual assault. Tanev was subsequently
convicted of battery and sentenced to one year of social service
supervision.
Plaintiff Schlumpf alleges that on February 4, 1995, while a
guest at the Ritz, she made arrangements to receive a massage. A
female attendant led Schlumpf to a small room where she reclined on
a table under a large towel. Vodovosov, director of the spa at the
Ritz, entered the room, made small talk with Schlumpf and began the
massage. He first massaged her arms, shoulders and neck. He then
asked her if she wanted her chest massaged and she answered "yes."
Whereupon he exposed her breasts by folding the towel down and
began to massage them. She became uncomfortable and said "no thank
you" and Vodovosov partially recovered her breasts and moved on to
massage other parts of her body. At Vodovosov's suggestion, she
removed herself from the massage table, stood up and took off her
panties. She was completely naked after taking off her panties.
She then reclined on the table and Vodovosov massaged her abdomen,
legs and thighs. While massaging her lower abdomen Vodovosov also
massaged her pubic area and while doing so, he inserted a finger
into her vagina. He entered her vagina two times, once from each
side of the table. Each time she said "no thank you" and he
stopped without comment and moved on to another phase of the
massage.
After the massage, Schlumpf paid for it and made no complaint
to hotel management at the time. Later, Schlumpf informed her
husband of what happened during the course of the massage.
Schlumpf's husband contacted the hotel manager and informed the
manager of what happened to his wife. After talking with Schlumpf,
the managers at the Ritz promised that they would conduct an
investigation. The following month, Schlumpf discovered that
Vodovosov was not terminated or otherwise disciplined. Two and
one-half months later, Schlumpf reported the incident to the police
and filed battery and sexual assault charges against Vodovosov. At
Vodovosov's trial, the court granted a motion for directed verdict
in his favor.
As part of their contracts, massage therapists at the Ritz
were obligated to follow the code of ethics of the American Massage
Therapy Association, which instructs massage therapists to refrain
from the type of conduct alleged by plaintiffs. Both Vodovosov and
Tanev have denied plaintiffs' allegations.
Plaintiffs filed a three-count complaint against the Ritz,
Tanev and Vodovosov. In counts I and II, plaintiffs allege that
Tanev and Vodovosov, acting individually and in their capacity as
agents and servants of the Ritz, made harmful and offensive contact
by touching plaintiffs' sexual organs without permission. In count
III, plaintiffs allege that the Ritz negligently supervised the
conduct and operations of the masseurs at the Ritz, negligently
hired these masseurs without investigating their backgrounds and
failed to provide reasonable safeguards to protect women who were
receiving massages from offensive and unwelcome contact. Count III
remains pending in the trial court and is not at issue in this
appeal.
The Ritz filed a motion for summary judgment as to count I and
count II contending that it was not liable for the conduct of Tanev
or Vodovosov because their actions fell outside the scope of their
employment. The trial court granted summary judgment in favor of
the Ritz and plaintiffs' appeal immediately followed.
Initially, we note that a reviewing court conducts a de novo
review of the evidence in summary judgment cases. Espinoza v.
Elgin, Joliet & Easter Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). The reviewing court must construe all evidence
strictly against the movant and liberally in favor of the nonmoving
party. Espinoza, 165 Ill. 2d 107 at 113. Where the pleadings,
depositions and affidavits show that there is no genuine issue of
material fact, the moving party is entitled to judgment as a matter
of law. Quirke v. City of Harvey, 266 Ill. App. 3d 664, 668, 639 N.E.2d 1355 (1994). If reasonable persons could draw different
inferences from undisputed facts, summary judgment should be
denied. Smith v. Armor Plus Co., 248 Ill. App. 3d 831, 839, 617 N.E.2d 1346 (1993).
Plaintiffs contend that both Vodovosov and Tanev were acting
within the scope of their employment with the Ritz at the time
plaintiffs were assaulted. Generally, summary judgment is
inappropriate in scope-of-employment cases. Pyne v. Witmer, 129 Ill. 2d 351, 359, 543 N.E.2d 1304 (1989). "Only if no reasonable
person could conclude from the evidence that an employee was acting
within the course of employment should a court hold as a matter of
law that the employee was not so acting." Pyne, 129 Ill. 2d at
359.
In the context of respondeat superior liability, an employer
may be liable for the "'negligent, wilful, malicious or even
criminal acts of its employees when such acts are committed in the
course of employment and in furtherance of the business of the
employer.'" Deloney v. Board of Education, 281 Ill. App. 3d 775,
784, 666 N.E.2d 792 (1996), quoting Webb v. Jewel Companies, Inc.,
137 Ill. App. 3d 1004, 1006, 485 N.E.2d 409 (1985). The burden is
on the plaintiff to show the contemporaneous relationship between
the tortious act and scope of employment. Pyne, 129 Ill. 2d at
360.
Plaintiffs specifically argue that summary judgment is too
drastic and arbitrary a measure for a scope-of-employment issue
where the deviations from job duties are slight and transient.
Plaintiffs urge this court to characterize the alleged intentional
conduct of Tanev and Vodovosov as a detour. Illinois courts have
long recognized the distinction between "detour" and "frolic." A
detour occurs where the employee's deviation for personal reasons
is seen as sufficiently related to the employment. Laird v. Baxter
Health Care Corp., 272 Ill. App. 3d 280, 288, 650 N.E.2d 215
(1995). A frolic occurs where the employee's personal business is
seen as unrelated to employment. Laird, 272 Ill. App. 3d at 288.
"'Where an employee's deviation from the course of employment is
slight and not unusual, a court may find as a matter of law that
the employee was still executing the employer's business.
[Citation.] Conversely, when a deviation is exceedingly marked and
unusual, as a matter of law the employee may be found to be outside
the scope of employment.'" Laird, 272 Ill. App. 3d at 288, quoting
Pyne, 129 Ill. 2d at 361.
Plaintiffs rely on St. Paul Fire & Marine Insurance Co., v.
Downs, 247 Ill. App. 3d 382, 617 N.E.2d 338 (1993), to support
their contention that the sexual assault was a detour committed
within the scope of employment and therefore created respondeat
superior liability for the employer. In St. Paul, a psychotherapist
engaged in sexual intercourse with a client allegedly as part of
therapy. The client filed a complaint against the psychotherapist's
employer alleging, inter alia, that the employer was vicariously
liable for the acts of the psychotherapist. The plaintiff, St.
Paul, issued a professional liability insurance policy to the
employer and filed a declaratory judgment action seeking a
determination that no coverage existed under the professional
liability policy for the sexual misconduct of the psychotherapist
because it was outside the scope of employment. St. Paul, 247 Ill.
App. 3d at 383. The trial court applied the doctrine of collateral
estoppel to prohibit relitigation of the issue of whether the
psychotherapist was acting within the scope of his employment at
the time he allegedly engaged in sexual misconduct with the client.
In an underlying action, another court had earlier determined that
the employer was not liable for the psychotherapist's actions under
the doctrine of respondeat superior. This court affirmed the grant
of summary judgment, holding that collateral estoppel was properly
invoked. St. Paul, 247 Ill. App. 3d at 390.
This court also considered St. Paul's alternative contention
that summary judgment was proper even if collateral estoppel did
not apply because, as a matter of law, the alleged sexual
misconduct was not within the scope of employment. In so doing,
this court compared the circumstances in the case to other sexual
misconduct cases and found that the nature of the work performed by
a psychotherapist was substantially different because of the
phenomenon of "transference," which occurs when a patient transfers
feelings toward everyone else to the psychotherapist, who must then
ensure that any emotional involvement with the patient is avoided.
St. Paul, 247 Ill. App. 3d at 391. If the psychotherapist
mishandles the phenomenon, it may result in sexual relations with
the patient. St. Paul, 247 Ill. App. 3d at 391. Thus, "the sexual
misconduct of a therapist could be viewed as inside the scope of
treatment under the guise of therapy." St. Paul, 247 Ill. App. 3d
at 392.
We find that plaintiffs' reliance on St. Paul is misplaced.
Plaintiffs urge us to find that, similar to the psychotherapist in
St. Paul, the masseur's conduct could be considered therapy and
therefore within the scope of employment. We first note that the
portion of the holding in St. Paul dealing with the scope of
treatment was not directly connected with the holding and was
therefore dicta and, thus, lacks the authoritative force of
precedent. Bernabei v. County of La Salle, 258 Ill. App. 3d 799,
801, 630 N.E.2d 538 (1994). Further, we fail to see how the
sexual assault of a client during a massage is similar to the
sexual misconduct of a psychotherapist as a result of the
phenomenon of transference.
In Hoover v. University of Chicago Hospitals, 51 Ill. App. 3d
263, 366 N.E.2d 925 (1977), this court affirmed the dismissal of
a complaint for failing to state a cause of action where the
plaintiff had alleged that a physician had sexually assaulted her.
The assault took place in an examining room in the defendant
hospital and the physician was employed by the defendant hospital
at the time of the assault. This court held that the intentional
sexual assault could not be interpreted as an act in furtherance of
the hospital's business therefore, the hospital could not be held
liable under the theory of respondeat superior. Hoover, 51 Ill.
App. 3d at 266.
Plaintiffs also rely on Sunseri v. Puccia, 97 Ill. App. 3d
488, 422 N.E.2d 925 (1981), to support their assertion that
intentional acts of an outrageous nature may still be within the
scope of employment if the employee acted with a dual purpose. In
Sunseri, a bouncer at a tavern assaulted a bar patron after an
argument between the two men. The trial court directed a verdict
in favor of the defendants. This court reversed, holding that the
jury should have been permitted to determine whether the bouncer's
actions had been within the scope of his employment based upon the
conflicting evidence presented and the foreseeability of the
assault. Sunseri, 97 Ill. App. 3d at 494. The court noted that,
in cases involving an assault by a bartender, liability often
attaches to the employer because it is expected that a bouncer will
be required to use force in doing his job, even though the force
used may be unnecessary or excessive. Sunseri, 97 Ill. App. 3d at
493.
Sunseri is distinguishable from the case at bar. Here, it is
not expected that a masseur will sexually assault a client during
the course of a massage. Although a massage involves physical
contact with the client, it cannot reasonably be said that sexual
assault by masseurs at the Ritz was encompassed in their duties,
was similar to those duties, or was reasonably foreseeable by the
Ritz.
Deloney v. Board of Education, 281 Ill. App. 3d 775, 666 N.E.2d 792 (1996), provides an exhaustive review of cases involving
"scope of employment" as a basis for determining whether employers
are vicariously liable for sexual assaults committed by their
employees. In Deloney, a truant officer employed by a school board
allegedly committed aggravated criminal sexual abuse of a 16-year-
old girl. This court held that "in Illinois the cases are clear
that as a matter of law acts of sexual assault are not within the
scope of employment." Deloney, 281 Ill. App. 3d at 786.
Specifically, "the allegations of sexual misconduct *** had no
relation to Deloney's job as a truant officer and were committed
solely for his personal benefit. As a matter of law, his alleged
actions were outside the scope of employment ***." Deloney, 281
Ill. App. 3d at 786. This court further found that although the
truant officer's "employment provided the opportunity for his
misconduct, by no stretch of the imagination could his actions be
deemed an extension, albeit unlawful, of his functions or
responsibilities as a truant officer." Deloney, 281 Ill. App. 3d
at 788. Deloney held that criminal sexual assault, by its very
nature, precludes a conclusion that it was committed within the
scope of employment under the doctrine of respondeat superior.
Deloney, 281 Ill. App. 3d at 783-86.
As pointed out in Deloney, in Webb v. Jewel Cos., 137 Ill.
App. 3d 1004, 485 N.E.2d 409 (1985), the plaintiff filed a
complaint against the defendant supermarket and its employee, a
security guard, seeking damages for injuries that resulted from an
alleged sexual molestation committed at the supermarket by the
security guard during his search of the plaintiff. This court
affirmed the trial court's dismissal of the complaint against the
employer supermarket because "the sexual molestation of a young
girl by a security guard is nonetheless a deviation having no
relation to the business of the [supermarket] or the furtherance
thereof." Webb, 137 Ill. App. 3d at 1008.
Similarly, in Randi F. v. High Ridge YMCA, 170 Ill. App. 3d
962, 524 N.E.2d 966 (1988), a teacher's aide sexually assaulted
a three-year-old girl at a day care center operated by defendant.
In their complaint, plaintiffs alleged, inter alia, that the acts
against the child were committed during the course of the teacher's
employment at the day care center, which included "the care,
custody, control, supervision and discipline" of the minor and
other children. Randi F., 170 Ill. App. 3d at 963. Defendant
moved to dismiss plaintiff's complaint for failure to state a cause
of action. Defendant argued that it could not be liable under the
doctrine of respondeat superior for the acts of the teacher's aide
because those acts were done outside the scope of her employment.
The circuit court dismissed plaintiff's complaint. On appeal, this
court affirmed the trial court's ruling, holding that the sexual
molestation by the teacher's aide was a deviation from the scope of
her employment and had no relation to the business of the day care
center. Randi F., 170 Ill. App. 3d at 967.
In the instant case, plaintiffs have not explained how, in
sexually assaulting Schlumpf and Stern, Tanev and Vodovosov were
furthering the interests of the Ritz. We find as a matter of law
that the Ritz was not liable for the actions of Tanev and Vodovosov
where those actions were not within the scope of their employment.
The sexual assault of plaintiffs during the course of each massage
could in no way be interpreted as an act in furtherance of the
business interests of the Ritz. The actions of Tanev and Vodovosov
were not foreseeable and the trial court properly granted summary
judgment in favor of the Ritz.
For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
Affirmed.
ZWICK J., concurs.
CAMPBELL P.J., dissents.
PRESIDING JUSTICE CAMPBELL, dissenting:
I agree with the majority that summary judgment is generally
inappropriate in scope of employment cases and that criminal acts
of an employee may fall within the scope of employment. I disagree
that this case is an exception to these rules.
The majority opinion relies on cases holding that an employer
could not be vicariously liable for the sexual misconduct of an
employee. Deloney v. Board of Education, 281 Ill. App. 3d 775, 666 N.E.2d 792 (1996) (truant officer allegedly committed aggravated
criminal sexual assault); Randi F. v. High Ridge YMCA, 170 Ill.
App. 3d 962, 524 N.E.2d 966 (1988)(day care worker beat and fondled
child); Webb v. Jewel Companies, Inc., 137 Ill. App. 3d 1004, 485 N.E.2d 409 (1985)(security guard searched and fondled girl
customer); Hoover v. University of Chicago Hospitals, 51 Ill. App.
3d 263, 366 N.E.2d 925 (1977)(doctor had carnal knowledge of
patient against her will). However, sexual activity is totally
outside the job duties of a truant officer, day care worker or
security guard. While there may be cases where a doctor will touch
the genitals or breasts of a patient, Hoover involved alleged
forced sexual intercourse based on a pretext of treatment. Hoover,
51 Ill. App. 3d at 264, 366 N.E.2d at 927.[FN2] Webb rejected a
distinction between fondling and intercourse, but Webb involved a
security guard, not a masseur.
Plaintiffs cite Metzler v. Layton, 373 Ill. 88, 25 N.E.2d 60
(1939), in which an office manager chased and shot a co-employee
who had robbed the office. The supreme court held that Layton's
private, personal motive for the chase did not exclude the interest
of his employer, as "[t]he pursuit was the continuation of one
transaction." Metzler, 373 Ill. at 92, 25 N.E.2d at 62. The
Metzler court approvingly stated that:
"In the case of Gulf, Colorado & Sante Fe
Railway Co. v. Cobb, Tex. Civ. App., 45 S.W.2d 323, 326, the court said: 'The master is
liable for any such act of the servant which,
if isolated, would not be imputable to the
master, but which is so connected with and
immediately grows out of another act of the
servant imputable to the master, that both
acts are treated as one indivisible tort,
which, for the purposes of the master's
liability, takes its color and quality from
the earlier act.'" Metzler, 373 Ill. at 93,
25 N.E.2d at 62.
The supreme court stated that it could not "presume to separate the
acts of Layton as a servant from the acts of Layton as an
individual where the entire occurrence was within such a very short
space of time." Metzler, 373 Ill. at 93, 25 N.E.2d at 62. The
court concluded that vicarious liability "was a question for the
jury to decide ***." Metzler, 373 Ill. at 93, 25 N.E.2d at 62.
Similarly, in this case, the improper massage is connected with and
immediately grows out of the massage authorized by the hotel and
raises a question of fact. A jury should be allowed to decide
whether the acts are divisible.
The Ritz Carlton claims that the misconduct here was not in
furtherance of its business. However, in Pyne v. Witmer, 129 Ill. 2d 351, 543 N.E.2d 1304 (1989), a case involving an allegedly
intoxicated driver, the supreme court did not use the term
"furtherance" as a touchstone of analysis; instead, it appears in
the dissent. Pyne, 129 Ill. 2d at 372, 543 N.E.2d at 1314 (Ryan,
J., dissenting)(citing Hoover and Webb). Moreover, the Ritz
Carlton benefits from the provision of massage services to its
guests. The provision of these services created the opportunity
for the misconduct alleged here.
In addition, the defendant in this case is a hotel.
Plaintiffs note that a hotel owes its guests a duty of care for
their safety. There is a duty to protect others from attack by a
third person where the attack was reasonably foreseeable and the
parties had a special relationship such as carrier-passenger,
innkeeper-guest, business inviter-invitee, or voluntary
custodian-protectee. Morgan v. 253 East Delaware Condominium
Ass'n, 231 Ill. App. 3d 208, 211, 595 N.E.2d 36, 38 (1992). In
Eversole v. Wasson, 80 Ill. App. 3d 94, 398 N.E.2d 1246 (1980),
which plaintiffs cited in opposition to summary judgment, a student
sued a teacher and school district after the teacher assaulted him
in school based on a grievance arising outside of school. This
court reversed a judgment in bar of action against the school
district, based on the in loco parentis relationship of the master
to the victim. Eversole, 80 Ill. App. 3d at 96-97, 398 N.E.2d at
1247-48, citing Prosser, Torts  70 (4th ed. 1971).
Prosser, upon which the Eversole court relied, wrote that
vicarious liability is imposed "even for such entirely personal
torts as *** rape" and applied to innkeepers. Prosser, Torts  70
at 465 (4th ed. 1971). The Restatement (Second) of Agency contains
a similar example: "The chambermaid at a hotel steals the clothes
of a traveler stopping at the hotel. The hotel keeper is subject
to liability although he reasonably believed the chambermaid to be
honest." Restatement (Second) of Agency  214, Illustration 5
(1958). Moreover, in such a case, the fact that the agent "acts
for his own purposes and with no intent to benefit the principal is
immaterial." Restatement (Second) of Agency  214, comment e.
In this case, the hotel's contracts with masseurs require
adherence to the code of ethics of the American Massage Therapy
Association, which forbids the misconduct alleged here. This
requirement may be construed as evidence that the alleged
misconduct was reasonably foreseeable, which may result in
vicarious liability. See Wright, 174 Ill. 2d at 405, 675 N.E.2d at
118; Eversole, 80 Ill. App. 3d at 96-97, 398 N.E.2d at 1247-48;
Restatement (Second) of Agency  245 (use of force). Although the
majority opinion concludes that the masseurs cannot be compared to
psychiatrists, hotel masseurs can be compared to hotel
chambermaids. Given the relationship between the hotel and the
plaintiffs, and the fact that the alleged misconduct here arises
from the employees' job duties, there is a genuine issue of
material fact as to vicariously liability.
Summary judgment is a drastic measure and should only be
allowed when the right of the moving party is clear and free from
doubt. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871
(1986). In this case, the summary judgment is not free from doubt.
Accordingly, I respectfully dissent.
[FN1]The Ritz hired Tanev as an independent contractor. In
their arguments before the trial court, both parties assumed that
Tanev was an employee. Counsel for Tanev requested that the trial
court disregard the issue of whether Tanev was an employee or an
independent contractor for purposes of this lawsuit.
[FN2]The majority opinion also dismisses plaintiffs' reliance on
St. Paul Fire & Marine Ins. Co. v. Downs, 247 Ill. App. 3d 382, 617 N.E.2d 338 (1993) as a misplaced citation of dicta. The majority
also states that Deloney contains an exhaustive review of "scope of
employment" cases. However, the cases cited in Deloney as
rejecting liability in cases involving teachers and day care
workers are from jurisdictions such as California and Minnesota,
both of which impose vicarious liability on hospitals for sexual
misconduct of psychiatrists and doctors. See Richard H. v. Larry
D., 198 Cal. App. 3d 591, 243 Cal. Rptr. 807 (1988); Marston v.
Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306
(1982). See also Interbitzden v. Lane Hospital, 124 Cal. App. 462,
12 P.2d 744 (1932)(implying vicarious liability for medical
students). In Doe v. Samaritan Counselling Center, 791 P.2d 344
(Alaska 1990), the court reversed a summary judgment on a
respondeat superior claim involving sexual conduct by a counsellor.
In Samuels v. Southern Baptist Hospital, 594 So. 2d 571 (La. App.
4th Cir. 1992), the court held there could be vicarious liability
for a sexual assault committed by a nursing assistant. Of course,
not all jurisdictions agree on this point. However, the difference
in opinion demonstrates that the issue is far from clear-cut.

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