NELDA JO EMERY, Appellant v. K-C AVIATION, INC., Appellee

Affirmed and Opinion issued December 15, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00349-CV
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NELDA JO EMERY, Appellant
V.
K-C AVIATION, INC., Appellee
 
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On Appeal from the 101st District Court
Dallas County, Texas
Trial Court Cause No. 87-11327-E
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O P I N I O N
Before Chief Justice Enoch and Justices Carver FN:1 and Bissett FN:2
Opinion By Justice Carver
        Nelda Jo Emery appeals from a summary judgment concluding that K-C Aviation, Inc., as an employer, owed Emery no duty to supervise its employees, Emery's husband and Kimberly Adams, while off duty and off premises, so as to prevent their mutual and multiple seductions, to the harm of Emery's family interests. We affirm.
        Emery argues that the "duty" upon which she relies was established by the opinion of our Supreme Court in Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex. 1971), and that her case falls squarely within that holding. We cannot agree. The "duty" established in Kelsey-Seybold vested on the undisputed facts that (1) Maclay had a family interest with his wife; (2) Maclay entrusted his wife's health care to a physician, also a partner, in the clinic; (3) the physician/partner, while on duty, on premises, and while purportedly acting as the clinic's representative, seduced Maclay's wife; and (4) the seduction harmed Maclay's family interests. Resting on these facts the Supreme Court found a "duty" described, and limited, in these terms:
        [T]he Clinic owed a duty to the families of its patients to exercise ordinary care to prevent a tortious interference with family relations. It was not required to maintain constant surveillance over personnel on duty or to inquire into and regulate the personal conduct of partners and employees while engaged in their private affairs. But if and when the partnership received information from which it knew or should have known that there might be a need to take action, it was under a duty to use reasonable means at its disposal to prevent any partner or employee from improperly using his position with the Clinic to work a tortious invasion of legally protected family interests. This duty relates only to conduct of a partner or employee on the premises of the clinic or while purportedly acting as a representative of the clinic elsewhere.
Kelsey-Seybold, 466 S.W.2d at 720 (emphasis added).
        The summary judgment record reflects no seductions on the premises of K-C; no seductions while the two employees were on duty for K-C; and no seductions while either employee was purportedly acting as a representative of K-C. Emery points out that on some occasions, the seductions took place between the two employees when they traveled at K-C's expense to present K-C's offerings to prospective customers. We do so find in the summary judgment record; however, the record does not indicate the seduction occurred coincident in any way with K-C's presentations, but only after the presentations were completed and the employees' private lives were resumed. Since the seductions were in private while the employees were off duty to their employer and off the employer's premises, we conclude the trial court correctly held that Emery's case failed to squarely fit the rule in Kelsey-Seybold.
        Our view that Emery's claim of a "duty" has not been shown is confirmed by a study of Morris v. Mooney, 288 S.C. 447, 343 S.E.2d 442 (S.C. 1986), an opinion by the Supreme Court of South Carolina. In Morris, the plaintiff's wife was an employee of a doctor, and she committed adultery with a different doctor, also an employee, resulting in a subsequent divorce from plaintiff. Plaintiff sued the employer-doctor urging that the employer was negligent in failing to supervise his two employees so as to prevent the adultery and the resulting divorce suffered by the plaintiff. The court in Morris held:
        In our opinion, appellants owed no legal duty to the respondent to investigate or prevent the consensual sexual relationship. To hold otherwise would place an intolerable burden on employers. Since no legal duty was owed, appellants could not be guilty of any actionable negligence.
Morris, 343 S.E.2d at 443-44. We find Morris consistent with the undisputed facts in our record and not inconsistent with Kelsey-Seybold.
        Emery also argues that while K-C may not have been under a duty to "maintain constant surveillance" or to "regulate . . . employees while engaged in their private affairs"; still there was a duty, which arose when K-C "knew or should have known that there might be a need to take action," requiring K-C "to use reasonable means at its disposal to prevent any . . . employee from improperly using his position . . . to work a tortious invasion of legally protected family interests." Emery points out that the summary judgment record reflects that numerous employees of K-C knew, suspected, or had heard rumors and gossip to the effect that there was an ongoing affair between Emery's husband and Adams; moreover, Emery's own affidavit reflects that she, herself, told the company president of the affair. We do not dispute that such facts so appear, but the crucial condition to imposition of a duty upon the employer under Kelsey-Seybold is not the affair itself, as an isolated fact, but an affair on duty, on premises, or elsewhere while purportedly acting as a representative of K-C.
        We conclude the trial court correctly applied the Kelsey-Seybold rule to conclude that no duty upon the employer had been shown by the summary judgment record; consequently, Emery could not show a negligent breach of duty at trial. The trial court's summary judgment disposition of Emery's claim as patently unmeritorious, under rule 166A of the Texas Rules of Civil Procedure, was correct.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          SPENCER CARVER
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 90
 
890349F.U05
 
FN:1 The Honorable Spencer Carver, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Gerald T. Bissett, Justice, retired, Court of Appeals, Thirteenth District of Texas at Corpus Christi, sitting by assignment.
File Date[12-13-89]
File Name[890349F]