Legal Memorandum: Requisites for Respondeat Superior in VA

Issue: Under Virginia law, what is required to establish respondeat superior?

Virginia recognizes respondeat superior.  In Plummer v. Center Psychiatrists, the defendant-clinic sought to avoid liability by arguing that the defendant-psychologist’s sexual abuse of the plaintiff was intentional, “solely for his own personal interests,” and outside the scope of employment.  252 Va. 233, 235, 476 S.E.2d 172, 173 (1996).  Once an employer-employee relationship has been established, the employer bears the burden to prove the employee was acting outside the scope of employment—and if it is an issue, it is factual question for the jury.  Id. at 235-36, 173-74 (quoting Kensington Associates v. West, 234 Va. 430, 432-33, 362 S.E.2d 900, 901 (1987)).  Virginia courts apply the modern view which tests “. . . not the motive of the employee committing the act complained of, but whether the act was within the scope of the duties of employment and in the execution of the service for which he was engaged.”  Id. at 236-37, 174 (quoting Commercial Business Systems v. BellSouth, 249 Va. 39, 45 453 S.E.2d 261, 266 (1995)).  The court concluded that plaintiff had sufficiently alleged that the psychologist’s sexual acts were within the scope of his duties in the execution of the service for which he had been engaged.

Where a client has engaged pastoral counseling services, the employing entity may be liable.   See id.  Furthermore, a church may not be able to avoid liability by claiming religious freedom because a plaintiff’s claim can be decided on “references to neutral principles of law, without references to issues of […]