COURT OF APPEALS OF INDIANA
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
JOHN D. CLOUSE R. THOMAS BODKIN
IVAN A. ARNAEZ MICHAEL G. SMITH
Evansville, Indiana Bamberger, Foreman, Oswald and Hahn
L.N.K., A Minor of the age of seventeen years )
By ROBERT KAVANAUGH and )
JENNIFER KAVANAUGH, Parents and next )
Friends; ROBERT KAVANAUGH and )
JENNIFER KAVANAUGH, in their own )
Appellants-Plaintiffs, ) )
vs. ) No. 82A01-0210-CV-417
ST. MARYS MEDICAL CENTER, )
MULBERRY CENTER, )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-0003-CP-239
March 19, 2003
Appellants-plaintiffs L.N.K., Jennifer Kavanaugh, and Robert Kavanaugh (Kavanaughs) appeal the grant of summary
judgment to appellees-defendants St. Marys Medical Center and Mulberry Center (the Center).
Specifically, the Kavanaughs argue that the trial court erroneously found that seduction is
not an actionable tort in Indiana. The Kavanaughs also allege that the
trial court erred in holding that the Center is not vicariously liable for
Sean Lehmans seduction of L.N.K., the Kavanaughs minor daughter who went to the
Center seeking help for drug abuse. Concluding that the Center is not
vicariously liable for Lehmans actions, we affirm.
The facts most favorable to the Kavanaughs reveal that Mulberry Center, which was
owned by Welborn Baptist Hospital at the time the facts constituting this suit
occurred, is an institution offering mental health and addiction treatment to children and
adults on both an inpatient and outpatient basis.
See footnote Sixteen-year-old L.N.K. entered the
Center on an inpatient basis on three separate occasions due to drug addiction:
December 22 through December 29, 1998; February 4 through February 9, 1999;
and February 28 through March 5, 1999. During the first occasion, L.N.K.
was a patient in the Centers lockup unit, which meant that she was
not able to leave the unit. During the following two occasions, L.N.K.
lived at the Center but was able to attend meetings and take part
in supervised activities outside of the Center. On all occasions during which
she was an inpatient, L.N.K. had to abide by the Centers rules, such
as an evening curfew, which was enforced by the Centers nurses. Appellees
App. p. 17.
Sean Lehman was employed at the Center as a Substance Abuse Technician.
His duties were limited to taking patients vital signs, dispensing meals, and coordinating
patient travel to and from treatment meetings. Center policies forbade any physical
contact between staff and patients, and rules expressly prohibited romantic relationships between staff
and patients because such relationships might jeopardize treatment goals.
During L.N.K.s second stint at the Center, she met Lehman. L.N.K. testified
that Lehman started telling me how pretty I was and you have the
prettiest eyes Ive ever seen and youre driving me crazy and all stuff
like that. Appellees App. p. 57. Lehman kissed and hugged her
on several occasions. According to L.N.K., during this time the two discussed
seeing each other romantically after L.N.K. was no longer a patient. Appellees
App. p. 38. L.N.K. stated that Lehman even entered her room one
evening. Appellees App. p. 59.
When L.N.K. returned to the Center the third time, Lehman continued to kiss
and hug her. According to L.N.K., she saw Lehman nearly every day
she was there. Appellees App. p. 30-31. The day after L.N.K.
emerged from her third and final stint as an inpatient at the Center,
she and Lehman went out on a date. Lehman went to L.N.K.s
home that day and met Mr. and Mrs. Kavanaugh. Approximately three days
later, L.N.K. and Lehman engaged in sexual intercourse for the first time.
L.N.K. testified that Lehman was the first man she had ever had sex
with. Appellees App. p. 25.
Even after her discharge from the Centers inpatient services, L.N.K. continued at the
center on an outpatient basis. She would meet with a counselor twice
a week and attend weekly group meetings. L.N.K. usually did not see
Lehman during her counseling visits to the Center because Lehman worked at night
and L.N.K.s visits occurred during the day. However, L.N.K. would attend a
Friday night meeting, and she would meet Lehman at a certain location in
the Center. He would kiss her and sometimes make me go out
to his car and wait for him to get off work and then
we would leave together. Appellees App. p. 14.
During the course of their relationship, Lehman attempted to keep the entire matter
shielded from the Center. According to L.N.K., he didnt want to go
anywhere public like that because he was afraid that, you know, someone might
see and he would lose his job. Appellees App. p. 19.
According to L.N.K., even Mr. and Mrs. Kavanaugh didnt think I was dating
[Lehman]. They thought that he was taking me to meetings to help
me get clean. Appellees App. p. 29.
Three months after leaving the Centers inpatient program for the third time, L.N.K.
became pregnant. She did not tell anyone at the Center for fear
that Lehman would lose his job. Lehman asked L.N.K. to marry him
after she became pregnant, but a marriage never occurred. During her pregnancy,
L.N.K. was unable to help her mother around the house as she normally
did and was hospitalized twelve times due to pregnancy complications. She went
into labor prematurely six times. Finally, she delivered a son. Three
days after L.N.K.s son was born, Lehman went to the hospital to see
the baby. During the following three weeks, Lehman sporadically visited L.N.K. at
her home. After this time, Lehman left and was not seen again.
On May 18, 2001, the Kavanaughs filed their amended complaint against the Center.
L.N.K. claimed injury for her seduction and argued that the Center was
vicariously responsible for Lehmans actions. Appellants App. p. 12. Mr. and
Mrs. Kavanaugh claimed injury for the loss of L.N.K.s love, affection, performance of
chores and all other things children do for parents. Appellants App. p.
12. On March 19, 2002, the Center filed its motion for summary
judgment. Following a hearing, the trial court granted the Centers motion for
summary judgment on August 26, 2002. The Kavanaughs now appeal.
DISCUSSION AND DECISION
We first note that we are presented with two issues. One of
the Centers grounds for summary judgmentand one of the trial courts findingsis that
seduction is not an actionable tort in Indiana. The second issue we
consider is whether the Center may be vicariously liable for the seduction of
L.N.K. by one of its employees.
I. Standard of Review
When this court reviews a trial courts ruling on summary judgment, it applies
the same standards in deciding whether to affirm or reverse summary judgment.
Creel v. I.C.E. & Assoc., Inc., 771 N.E.2d 1276, 1279 (Ind. Ct. App.
2002). We will not weigh evidence but construe the facts in the
light most favorable to the nonmoving party. Id. Summary judgment should
be granted only if the designated evidence shows that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. Ind. Trial Rule 56(C).
On appeal, we must determine whether there is a genuine issue of material
fact and whether the trial court has correctly applied the law. Id.
The party appealing the grant of summary judgment has the burden of persuading
this court on appeal that the trial courts ruling was improper. Jordan
v. Deery, 609 N.E.2d 1104, 1107 (Ind. 1993).
The Kavanaughs argue that the trial court erred in holding that Lehmans actions
did not constitute an actionable tort. In its brief, the Center argues
that no such cause of action as seduction of a minor existed at
common law. Appellees Br. p. 9. The Centers position is incorrect.
The Kavanaughs are not without remedy in that a valid cause of
action for seduction of a minor may lie against Lehman.
We first observe that statutes in derogation of the common law are to
be strictly construed.
SLR Plumbing & Sewer, Inc. v. Turk, 757 N.E.2d 193,
199 (Ind. Ct. App. 2001). This is because courts will assume that the
legislature does not intend by a statute to make any change in the
common law beyond what it declares either in express terms or by unmistakable
implication. Indianapolis Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d
669, 673 (Ind. 1991).
At common law, the tort of seduction was based on the concept that
a person entitled to a womans services could bring suit for the loss
of those services. 70 Am. Jur. 2d Seduction § 50 (1987).
Since the theory of seduction was that services were lost by one
who was entitled to them, the woman herself could not bring a seduction
suit at common law. Id. Usually, the elements required to prove
a case of seduction included (1) enticement, persuasion, or solicitation of some nature,
or a promise of marriage; (2) chastity of the female at the time
of the alleged seduction; and (3) sexual intercourse as a result of the
enticement. Id. § 52. Thus, contrary to the Centers position, a
cause of action for seduction did exist at common law.
Our supreme court expanded the remedy for the tort of seduction in 1846,
when it held that a suit for seduction would lie even if the
plaintiffs daughter was not in his service and did not intend to return
to his home.
Boyd v. Byrd, 8 Blackf. 113, 114 (Ind. 1846).
Thus, it seems that damages other than for loss of services, such
as for humiliation, were permitted. In 1852, our General Assembly passed a
statute allowing an unmarried woman to sue for her own seduction. 2
Gavin & Hords Revised Statutes of the State of Indiana § 25, at
Not until 1935 was the cause of action for seduction limited. In
that year, the General Assembly, as part of a collection of anti-heart balm
statutes, abolished the tort of seduction if the woman seduced was twenty-one years
of age or older. Baldwins Ind. Stat. § 2-508 (Banks-Baldwin 1935).
In 1973, our General Assembly abolished the tort of seduction if the woman
seduced was eighteen years of age or older. Ind. Code § 34-4-4-1
(recodified at Ind. Code § 34-12-2-1). Indianas modern anti-heart balm statute only
prohibits suits for seduction of any female person of at least eighteen (18)
years of age. I.C. § 34-12-2-1(a)(4).
Because the current version of Indiana Code section 34-12-2-1(a)(4) only alters the common
law by barring actions by women who have attained the age of eighteen,
we conclude that women who have not attained that age and their parents
are not prohibited from bringing suits against a tortfeasor for the common law
tort of seduction.
III. Respondeat Superior
The Kavanaughs argue that the trial court erred in finding that the Center
is not vicariously responsible for Lehmans tort. Specifically, the Kavanaughs argue that
the Center owed a non-delegable duty to L.N.K. and is thus responsible for
Under the vicarious liability theory of respondeat superior, an employer is liable for
the acts of its employees which were committed within the course and scope
of their employment. City of Fort Wayne v. Moore, 706 N.E.2d 604,
607 (Ind. Ct. App. 1999). If the act complained of is the
employees idea and is done with no intention to perform it as part
of or incident to the service for which he is employed, then the
employer is generally not responsible. Gomez v. Adams, 462 N.E.2d 212, 223
(Ind. Ct. App. 1985). However, our supreme court has held that in
certain cases, the employer may nevertheless be held responsible for an employees acts
because a non-delegable duty akin to that imposed on common carriers may exist.
Stropes v. Heritage House Childrens Ctr., 547 N.E.2d 244, 250 (Ind. 1989).
In Stropes, the victim was a patient with cerebral palsy and severe mental
retardation. He had been placed in Heritage House Childrens Center, a facility
providing round-the-clock care and supervision. Robert Griffin, a nurses aide, was responsible
for feeding, bathing, and changing bedding for Stropes. Griffin molested Stropes and
pleaded guilty to two sexual offenses. Stropes sued Heritage House, arguing that
Heritage House was vicariously liable for Griffins actions. Our supreme court held,
in reversing both the trial court and this court, that Heritage House owed
a non-delegable duty to Stropes akin to the heightened duty owed by a
common carrier: Liability is predicated on the passengers surrender and the carriers
assumption of the responsibility for the passengers safety, the ability to control his
environment, and his personal autonomy in terms of protecting himself from harm.
Id. at 253. In ordering the case to proceed to trial, our
supreme court stated that given the degree of [Strope]s lack of autonomy and
his dependence on Heritage for care and the degree of Heritages control over
[Stropes] and the circumstances in which he found himself, we find that Heritage
assumed a non-delegable duty to provide protection and care so as to fall
within the common carrier exception. Id. at 254.
In a more recent decision, this court found that the Vigo County Sheriff
may be held liable for the sexual acts of a jailer perpetrated upon
a female inmate. Robins v. Harris, 740 N.E.2d 914, 918 (Ind. Ct.
App. 2001), adopted in relevant part by 769 N.E.2d 586, 587 (Ind. 2002).
The jailer forced the victim to perform fellatio on him while the
victim was an inmate. We found that liability could attach to the
sheriff because the sheriff and his employees maintain extraordinary control over the minutest
details of their prisoners lives. Id. at 918. We noted that
the jailer conducts inspections, supervises feeding, and controls all inmate movement within security
areas. Id. Thus, the sheriff owed the abused inmate the heightened
duty of a common carrier.
Here, the Center did not have the degree of control over L.N.K. that
is required for the heightened duty of a common carrier to apply at
the time the tort of seduction was completed. No acts of sexual
intercourse occurred until L.N.K. was an outpatient, though undoubtedly enticement or persuasion may
have been occurring while she was an inpatient. Appellees App. p. 41.
Both in Stropes and Robins, the torts complained of began and ended
while the plaintiffs were completely dependent on the defendants employees. Once L.N.K.
became a Center outpatient, the rationale underlying Stropes and Robinslack of autonomy and
dependence upon the defendantdisappeared. Once she was an outpatient, L.N.K. was no
longer under the Centers control.
In light of our disposition of the issues set forth above, we conclude
that the trial court erroneously held that seduction is not an actionable tort.
However, the trial court did not err in finding that the Center
was not vicariously liable for Lehmans actions. Consequently, the trial court correctly
granted the Centers motion for summary judgment.
RILEY, J., and MATHIAS, J., concur.
By the time this action was filed, Mulberry Center was
wholly-owned by St. Marys Medical Center. Throughout this opinion, the term the
Center is used to refer to the combined entity of Mulberry Center and