Can employers be liable for employee sexual assault under respondeat superior? Burton v. Chen Explained

The Utah Supreme Court’s decision in Burton v. Chen reinforces the traditional boundaries of respondeat superior liability, rejecting calls to expand employer liability for employee sexual misconduct through a foreseeability test.

Background and Facts

Julie Burton was a chronic pain patient at Alta Pain Physicians, where she received treatment from physician assistant Oscar Johnson under Dr. Michael Chen’s supervision. During her appointments, Johnson sexually assaulted Burton and threatened to withhold medication if she refused his advances. After Alta Pain terminated Johnson following similar complaints from other patients, Burton sued both Chen and Alta Pain under respondeat superior principles, seeking to hold them vicariously liable for Johnson’s intentional torts including sexual assault, sexual battery, and intentional infliction of emotional distress.

Key Legal Issues

The case presented three main issues: (1) whether Johnson’s conduct fell within the scope of employment under existing respondeat superior doctrine; (2) whether the Utah Physician Assistant Act imposed statutory liability on supervising physicians; and (3) whether Utah should abandon its current test and adopt a foreseeability standard for vicarious liability.

Court’s Analysis and Holding

Applying the M.J. v. Wisan test, the court affirmed summary judgment because Johnson’s sexual assaults were not “of the general kind” he was hired to perform. Unlike the unique circumstances in Wisan involving FLDS practices, Johnson was expressly hired with the expectation he would not engage in improprieties with patients. The court distinguished cases from other jurisdictions decided at the pleading stage and relied on its binding precedent in J.H. ex rel. D.H. v. West Valley City. The court also rejected Burton’s statutory interpretation argument, finding the Physician Assistant Act’s “takes responsibility” language insufficient to abrogate common law respondeat superior principles without clear legislative intent. Finally, the court declined to overturn precedent under Eldridge v. Johndrow, finding Burton failed to demonstrate either that the original reasoning was unpersuasive or that the precedent was not firmly established.

Practice Implications

This decision maintains predictable boundaries for vicarious liability in Utah, requiring plaintiffs to prove employee misconduct was within the scope of employment under traditional agency principles. Practitioners should note that while respondeat superior claims may fail, direct negligence claims for negligent hiring or supervision remain viable alternatives. The court’s detailed stare decisis analysis also provides guidance for future attempts to overturn established precedent, emphasizing the heavy burden required under the Eldridge standard.