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A hospital, even if it cannot be held vicariously liable for the criminal conduct of an employee in committing sexual assault, must still face a jury trial on the question of inadequate supervision, a federal judge has ruled. Senior U.S. District Judge for the Eastern District of Pennsylvania John P. Fullam, ruling in a suit brought by the mother of a mentally ill teenager who allegedly was sexually assaulted by a staff member at a mental health hospital, dismissed a negligence claim against the hospital after finding that it cannot be held “vicariously liable” for the employee’s alleged criminal conduct. But he refused to dismiss the plaintiff’s claim of negligent supervision, saying a jury could conclude that the hospital ignored warning signs and should have monitored the employee’s conduct more closely. In his five-page opinion in Vellafane v. Foundations Behavioral Health, Fullam concluded that the plaintiff’s evidence showed that the employee, during his few months of work, had been cited twice for inappropriate “horseplay” with female patients. As a result, Fullam concluded that the evidence “would permit the conclusion that Foundations did not adequately supervise its employee and should have noticed something was amiss.” According to court papers, Kristina Vellafane was 14 years old in October 2001 when she was placed in a mental health facility operated by Foundations. While there, the suit alleges that Vellafane was sexually assaulted by Sam Craft, a mental health technician. Craft later pleaded guilty to charges of assaulting Vellafane and three other patients. In a motion for summary judgment, defense attorney Jeffrey L. Pettit of Phelan Pettit & Biedrzycki argued that the hospital could not be held vicariously liable for Craft’s assaults because he was acting “outside the scope” of his job. But plaintiffs attorneys Samuel C. Totaro Jr. and Edward H. Rubenstone of Lamm Rubenstone Totaro & David in Bensalem, Pa., argued that they should be allowed to pursue the vicarious liability claim on the grounds that the hospital had extensive policies that were designed to control the contact between staff members and patients. By instituting such policies, they argued, the hospital “recognizes the fact that [it] realized that there was a substantial risk of sexual contact between its staff and the patients, particularly amongst male staff members and young minor female patients.” And a violation of the policy, they argued, “would necessarily become a violation of the employee’s duties, and therefore would fall within the scope of his employment.” But Fullam sided with the defense, finding that, under Pennsylvania law, the hospital “is not vicariously liable for the despicable actions of Craft.” Fullam quoted a Pennsylvania Commonwealth Court 1994 decision in Sanchez v. Montanez rejecting a vicarious liability claim on the grounds that “the employee’s actions were conducted for personal reasons only and were utterly outrageous in manner.” Petit also argued in his summary judgment motion that the hospital could not be held liable on a negligent hiring claim because the evidence showed that it “obtained all the necessary background clearances prior to Craft’s hire and had no reason to believe that he was capable of being a sexual predator.” The summary judgment motion also said “during his brief period of employment with Foundations, Craft exhibited no conduct that would have indicated he was capable of engaging in sexual relations with patients. If, in fact, these sexual encounters occurred, Craft violated very clear policies promulgated by Foundations concerning relationships with patients and evaded close supervision of both staff members and patients.” Fullam apparently agreed with the first half of Petit’s argument, but rejected the second half. “If the amended complaint rested solely on a hiring claim, judgment might be appropriate,” Fullam wrote. “However, there is sufficient evidence for a finder of fact to conclude that Foundations failed to train and supervise Craft properly.” The plaintiffs lawyers argued in their brief that Craft “was disciplined within weeks of his hiring for inappropriate contact with a female patient. Clearly this should have raised a red flag to his superiors to watch him more closely.” Fullam agreed and concluded that a jury must decide whether the hospital was negligent in its supervision of Craft. “Especially given the troubled and vulnerable nature of the patients at Foundations, it would not be unreasonable for a jury to conclude that Foundations should have supervised a new employee more carefully or ensured that he was not left alone with patients,” Fullam wrote. Fullam also chided the hospital and its lawyer for making an argument that effectively accused Vellafane of sharing some of the blame for Craft’s assaults. Petit argued in his brief that the hospital should not be held liable for negligent supervision because both Craft and Vellafane fabricated stories in order not to be noticed when they spent time alone. “Vellafane and Craft concocted the subterfuge that she had lost a ring in the family room,” Petit wrote. Given that story, there was no reason for other technicians to suspect that Craft and Vellafane were there to have sex.” In another incident, Petit said, Vellafane “complained of a headache so that she could accompany Craft to the quiet room adjoined by the nurses’ station.” Fullam was apparently perturbed by what he perceived as a blame-the-victim argument. “For Foundations to argue, as it does, that [Vellafane], a 14-year-old girl diagnosed as depressed and with possible suicidal ideation, contributed to the abuse by using subterfuge to be with Craft, evinces a disturbing attitude toward the patients in its care,” Fullam wrote.

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