1. Whether a hospital may be found vicariously liable under the doctrine of respondeat superior when a doctor, acting outside of his assigned duties, sexually assaults a patient.

2. Whether a hospital may be found negligent in its duty to protect patients when, despite readily perceivable risks of harm, its staff fails to prevent the harm.

1. No. A sexual assault is neither in furtherance of a hospital's business of health care nor within the scope of a doctor's employment, so a hospital cannot be vicariously liable for sexual assault under respondeat superior.

2. Yes. Where a hospital's staff ignores or fails to notice readily perceivable risks of harm to patients, the hospital may be found negligent in its duty to protect the patients.

Plaintiff underwent surgery at Defendant Cabrini Medical Center's facilities. Plaintiff claimed that a surgical resident of the hospital, not assigned to her care, sexually assaulted her following the surgery while she was still under the effects of anesthesia. The alleged assault occurred while three nurses were observing another patient in an adjacent bed in a small recovery room. The nurses claimed that they noticed the unfamiliar resident enter the room but did not notice his interaction with Plaintiff. After the assault, Plaintiff complained to the nurses, and the doctor later admitted "examining" Plaintiff without hospital-mandated observation by a female witness. The hospital fired the resident after an internal investigation. Plaintiff then sued the hospital claiming negligence and vicarious liability. The trial court denied Defendant's motion for summary judgment on the claims of vicarious liability and negligence. The Appellate Division reversed, finding no vicarious liability because the assault was outside the scope of the doctor's employment and no negligence because the assault was neither reasonably foreseeable nor preventable. The Court of Appeals affirmed as to the issue of vicarious liability but reversed as to the issue of negligence.

The Court of Appeals affirmed the dismissal of Appellant's vicarious liability claim, finding that respondeat superior applies liability to employers only when their employee performs a tortious act "in furtherance of the employer's business," citing Riviello v. Waldron, 47 N.Y.2d 297, 302 (N.Y. 1979). The Court found that the sexual assault was outside the scope of employment because the doctor perpetrated it for purely "personal motives," and, therefore, the assault was not committed "in furtherance of the employer's business." See Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999). The Court reversed and remanded the Appellant's negligence claim. First, the Court stated that a hospital's "sliding scale of duty" to protect patients is limited to reasonably foreseeable risks. The Court found that in this case, questions of fact remained regarding how Defendant's staff failed to recognize risks of harm to Plaintiff, given their immediate proximity to the alleged assault and the suspicious circumstances surrounding the resident's presence in the recovery room. The Court noted that this decision created no new obligation for hospitals to insure patients against risks that are not reasonably perceivable: rather, it mandated only that unusual circumstances which indicate that the patient may be at risk trigger a heightened duty to protect a patient.