Respondeat Superior – Summary Judgment Procedure

Madasu v. Shoals Radiology Associates, P.C., [Ms. 1210334, Dec. 22, 2022] __ So. 3d __ (Ala. 2022). The Court (Mitchell, J.; Parker, C.J., and Bolin, Shaw, and Wise, JJ., concur; Bryan, Sellers, Mendheim, and Stewart, JJ., concur in the result) affirms the Lauderdale Circuit Court’s summary judgment dismissing claims asserted by Sunitha Madasu against Shoals Radiology Associates, P.C. (“Shoals”) alleging that Shoals was vicariously liable for Dr. Donald Bowling’s alleged negligent misinterpretation of a CT scan. At the time he interpreted the CT scan, Dr. Bowling was working for Lauderdale Radiology Group, LLP (“Lauderdale”). Ms. *3.

Although Madasu acknowledged that Dr. Bowling was not acting in the line and scope of his employment with Shoals while he was working for Lauderdale, “she argues that she can satisfy the furtherance-of-business test because, she says, Dr. Bowling’s work for Lauderdale conferred a benefit on Shoals.” Ms. *7. The Court first explains “the furtherance-of-business test is a subjective test, not an objective one. When courts ask whether an employee acted to ‘benefit his employer’ for purposes of respondeat superior, we are asking whether the employee possessed the ‘intention to perform’ the action ‘as a part of or incident to a service on account of which he [wa]s employed.’ 1 Restatement (Second) of Agency § 235 (Am. L. Inst. 1958). The mere fact that an employee’s independently motivated action happened to ‘result in an incidental benefit to the employer’ is not enough to trigger respondeat superior liability.” Ms. *10. The Court holds “[w]hen an employee is performing duties assigned to him by one employer and not another, the most reasonable assumption is generally that the employee intends to act only for the benefit of the employer for whom he is working at the time. ... That assumption can, of course, be overcome by contrary evidence, but only if that contrary evidence is reflected in the record. Madasu does not point to any such evidence here.” Ms. *12, internal citation omitted.

The Court also explains “[w]hen witness testimony is the only evidence in the record on a particular point, disbelief of that testimony ‘is not proof that the opposite of the witness’s statements is true.’ Estate of Logan v. City of S. Bend, 50 F.4th 614, 615 (7th Cir. 2022). Rather, “disbelief would mean that the record is empty, and on an empty record, the plaintiff loses, because the plaintiff has the burdens of production and persuasion.” Id. (collecting cases); .... It is possible that all the witnesses are lying and that Lauderdale and Shoals really did have a secret shift-coverage agreement. But a plaintiff at the summary-judgment stage must do more than raise the mere possibility that the facts could favor her.” Ms. *14.

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