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21 Ohio N.U. L. Rev. 1147 (1994-1995)
Patient Assaults: Health Care Providers Owe a Non-Delegable Duty to Their Patients and Should Be Held Strictly Liable for Employee Assaults Whether or Not within the Scope of Employment

handle is hein.journals/onulr21 and id is 1157 raw text is: Patient Assaults: Health Care Providers Owe a Non-Delegable Duty to Their Patients and Should be Held Strictly Liable for Employee Assaults Whether or Not Within the Scope of Employment ADAM A. MnAN* David Stropes, 14, was placed in a nursing home (Heritage) as a ward of the Welfare Department to assure his maintenance, se- curity, and well-being.' Diagnosed with both cerebral palsy and severe mental retardation, he had the mental capacity of a five-month. old infant and was without the verbal and motor skills necessary to perform or assist in even the simplest tasks associated with his own sustenance or sanitation. On February 28, 1986, Robert Griffin, a nurses' aide employed by Heritage, entered David's room to change the boy's bedding and clothes for the day. After Griffin stripped off the sheets, he got into bed with David and performed oral and anal sex upon him. Griffin stopped the assault when David made a sound indicating that he was in pain, then finished changing the boy's clothes.2 David's guardian sued Heritage, arguing that, by virtue of the nature of its business, Heritage had assumed a non-delegable duty to care for and protect David. This duty, the guardian argued, went beyond the traditonal principle of respondeat superior, which holds that employers are not liable for torts commited outside the scope of an employee's employment. Under the non-delegable duty principle, Heritage should be subject to the extraordinary standard of care which renders common carriers liable for injuries inflicted on passen- * Visiting Associate Professor of Law, University of Illinois. B.A., University of Notre Dame, 1988; J.D., Duke University, 1991. This article was written while the author was an associate at Barnes & Thornburg in South Bend, Indiana, and he wishes to thank Douglas D. Small, Mark D. Boveri and M. Patricia Hackett of that firm for whom he did research which served as its genesis. He would also like to thank Peter Budetti, M.D., J.D.; Sara Rosenbaum, J.D.; and Julie S. Darnell, M.P.H. of the Center for Health Policy Research at George Washington University for their helpful comments. The views and arguments expressed in this article are the author's own and do not necessarily reflect the views of either his current or former employer or those who reviewed the article. 1. Stropes v. Heritage House Children's Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 245 (Ind. 1989). 2. Id. 1147

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