                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-2041
                              Filed January 14, 2015

SONNI M. GIUDICESSI,
    Plaintiff-Appellee,

vs.

STATE OF IOWA,
     Defendant-Appellant,

and

SERGIO PARADISO, M.D., PH.D.,
     Defendant.
________________________________________________________________

       Appeal from the Iowa District Court for Johnson County, Douglas S.

Russell, Judge.

       The State appeals the court’s denial of its motion for summary judgment

finding material issues exist concerning the liability of a state hospital under the

doctrine of respondeat superior for the relationship between a doctor and his

former patient. REVERSED AND REMANDED.

       Thomas J. Miller, Attorney General, and Anne Updegraff, Assistant

Attorney General, for appellant.

       Michael J. Carroll of Coppola, McConville, Coppola, Carroll, Hockenberg &

Scalise, P.C., West Des Moines, and Kodi A. Brotherson of Becker & Brotherson

Law Firm, Sac City, and David H. Goldman of Babich Goldman, P.C., Des

Moines, for appellee.

       Sergio Paradiso, Coralville, defendant pro se.

       Heard by Mullins, P.J., and Bower and McDonald, JJ.
                                        2



BOWER, J.

        The State of Iowa appeals the court’s denial of its motion for summary

judgment finding material issues exist concerning the liability of the State, under

the doctrine of respondeat superior, for the sexual relationship between

University of Iowa psychiatrist Dr. Sergio Paradiso and his former patient Sonni

Giudicessi. Limiting our inquiry on the intent of Paradiso, we find Paradiso’s acts

were “so far removed” from the scope of his employment the State cannot be

held liable. We find the district court erred in finding the existence of a general

issue of material fact. We reverse and remand.

I.      BACKGROUND FACTS AND PROCEEDINGS

        Sonni Giudicessi was a patient at the University of Iowa Hospitals and

Clinics (UIHC) Eating Disorder Program on three occasions from 2008 through

2009. She received inpatient and out-patient treatment for anorexia nervosa-

restricting type, alcohol abuse, and depression. Dr. Paradiso was a psychiatrist

employed by the State of Iowa at UIHC, and was one of several psychiatrists

who provided care to Giudicessi during two of her stays at UIHC.         Paradiso

conducted one-on-one counseling sessions with Giudicessi where she disclosed

personal details about her past, including her alcohol abuse and sexual

relationships. Paradiso’s last session with Giudicessi occurred on December 7,

2009.

        Giudicessi was discharged from the program in early December 2009. In

February 2010, Giudicessi contacted Paradiso through an internet social

network.    Paradiso responded by sending Giudicessi an email, through his
                                        3



private email account, congratulating her on her new job and inquiring about her

current residence. The two corresponded further, and eventually met in person

on March 3, 2010, when Giudicessi told Paradiso to stop at a bar for an event

she planned on attending. Paradiso complied and met her at the bar, and spent

most of the evening with her. Paradiso arranged the next meeting for March 10

to take place in Grinnell. At that meeting, Paradiso told Giudicessi details about

his personal life, including information about his son who was recently diagnosed

with multiple sclerosis. At the end of the meeting, Paradiso stated he did not

think meeting again was a good idea. He later told Giudicessi they could be

friends and talk over the telephone and by email.       Paradiso emphasized to

Giudicessi they could not be seen together in public or tell anyone about their

relationship, including her new psychiatrist in Des Moines.

      The two began talking over the telephone every day. Paradiso mentioned

moving to Italy where they could live together. The two met in Iowa City on

March 19 at Paradiso’s house. As they drank a bottle of wine, Paradiso again

mentioned he could not do “this,” and he talked about leaving the country.

Paradiso and Giudicessi slept together, but did not have sex. The next day,

Paradiso attempted to have sex with Giudicessi.           Giudicessi refused his

advances. Paradiso went on to share personal details concerning the end of his

relationship with a former girlfriend and the fact he missed having sex. The two

continued to talk and arranged another meeting in Grinnell on March 29.
                                           4



       A sexual relationship began on March 29, 2010, and ended in June.1

UIHC was not aware of the relationship and only learned about the relationship

after Giudicessi’s Des Moines-based psychiatrist, who was not associated with

UIHC, reported the relationship to UIHC in July.

       Paradiso worked in the psychiatry department at UIHC as a staff doctor

from 1997 through his departure in July 2010. UIHC psychiatry resident doctors

are trained it is inappropriate to have sexual relationships with their patients. Dr.

Winokur, the department head of psychiatry, distributes a list of commandments

to all residents and fellows in the department. The first commandment is: “Thou

shalt not sleep with any UI Psychiatry Hospital patient unless it be thy spouse.”

The American Psychiatric Association Code of Ethics prohibits relations between

current and former patients.        UIHC and University of Iowa policies prohibit

sexual harassment.

       During their three-month relationship, Paradiso mentioned to Giudicessi

on multiple occasions he could get in trouble for seeing her outside the clinical

setting. He emphasized the need to keep the relationship a secret. Giudicessi

was also aware the relationship was improper.           During the affair, Giudicessi

continued to refer to Paradiso as “Doctor,” and continued to regard Paradiso as

her treating psychiatrist. However, the doctor/patient relationship was not shared

by Paradiso. The relations were conducted off University property, usually at

Paradiso’s residence or in hotels. In mid-June Paradiso sent Giudicessi an email




1
 For the purposes of this appeal, we find it unnecessary to delve into the details of the
multiple sexual encounters between Paradiso and Giudicessi.
                                          5



ending the relationship.    Giudicessi responded, they have not communicated

since.

         On July 22, 2011, Giudicessi filed an anonymous petition at law and jury

demand against the State of Iowa, UIHC, and Paradiso. The claims against the

State and UIHC included: medical negligence under a respondeat superior

theory; negligent hiring, supervision, and retention of Dr. Paradiso; and breach of

contract. On October 28, the court entered an order requiring Giudicessi to file

an amended petition including her name and dismissing the UIHC. She complied

and filed an amended petition.       The State filed an answer to the amended

petition, affirmative defenses, and jury demand on December 12, 2011. The

State filed a motion for summary judgment on April 23, 2013. The court found

issues of material fact in existence and denied the State’s motion. The State

filed a motion to enlarge and amend the summary judgment ruling, which the

court also denied. The State then filed an interlocutory appeal with our supreme

court. The interlocutory appeal was granted and assigned to this court.

         On appeal, the State claims: there are no genuine issues of material fact

concerning the State’s liability under the theory of respondeat superior, the court

erred in considering Giudicessi’s belief of continued treatment by Paradiso after

her discharge a fact issue, the court erred in considering the theory of

transference a fact issue, and the court erred in considering the foreseeability of

a psychiatrist-patient sexual relationship a fact issue.
                                             6



II.    STANDARD OF REVIEW

       We review rulings on motions for summary judgment for the correction of

errors at law. City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 675

(Iowa 2005). “Summary judgment is appropriate only when the entire record

demonstrates that no genuine issue of material fact exists and the moving party

is entitled to judgment as a matter of law.” Stevens v. Iowa Newspapers, Inc.,

728 N.W.2d 823, 827 (Iowa 2007). We examine the record in the light most

favorable to the nonmoving party and draw all legitimate inferences the evidence

bears in order to establish the existence of questions of fact. Mason v. Vision

Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005). “A party resisting a motion for

summary judgment cannot rely on the mere assertions in [her] pleadings but

must come forward with evidence to demonstrate that a genuine issue of fact is

presented.” Stevens, 728 N.W.2d at 827.

III.   ANALYSIS

       A.      Respondeat Superior

       Giudicessi claims issues of material fact exist concerning whether or not

the State is liable, under the doctrine of respondeat superior, for its psychiatrist-

employee’s sexual relationship with a former patient.2 The State responds the

trial court erred in finding issues of fact existed on the State’s liability for




2
  Giudicessi also asserts we should impose a standard of strict liability due to the special
relationship between psychiatrists and their patients. Giudicessi raised this issue for the
first time on appeal; therefore error has not been preserved. See Duck Creek Tire Serv.,
Inc. v. Goodyear Corners, L.C., 796 N.W.2d 886, 892 (Iowa 2011) (noting a party
ordinarily must raise an issue and the district court must rule on that issue to ensure
preservation for appellate review).
                                        7



Paradiso’s relations with Giudicessi, because the relations occurred outside the

scope of his employment with the hospital.

      Our supreme court provided an extensive discussion of the doctrine of

respondeat superior:

              The well-established rule is that under the doctrine of
      respondeat superior, an employer is liable for the negligence of an
      employee committed while the employee is acting within the scope
      of his or her employment. Jones v. Blair, 387 N.W.2d 349, 355
      (Iowa 1986); Sandman v. Hagan, 154 N.W.2d 113, 117 (Iowa
      1967). Thus, “[a] claim of vicarious liability under the doctrine of
      respondeat superior rests on two elements: proof of an
      employer/employee relationship, and proof that the injury occurred
      within the scope of that employment.” Biddle v. Sartori Mem’l
      Hosp., 518 N.W.2d 795, 797 (Iowa 1994); see also Vlotho v. Hardin
      County, 509 N.W.2d 350, 354 (Iowa 1993).
              We have said that for an act to be within the scope of
      employment the conduct complained of “must be of the same
      general nature as that authorized or incidental to the conduct
      authorized.” Sandman, 154 N.W.2d at 117. Thus, an act is
      deemed to be within the scope of one’s employment “where such
      act is necessary to accomplish the purpose of the employment and
      is intended for such purpose.” Id. The question, therefore, is
      whether the employee’s conduct “is so unlike that authorized that it
      is ‘substantially different.’” Id. Said another way, “a deviation from
      the employer’s business or interest to pursue the employee’s own
      business or interest must be substantial in nature to relieve the
      employer from liability.” Id. at 118.
              Section 229(2) of the Restatement (Second) of Agency
      (1957) lists the following factors to be considered in determining
      whether conduct of an employee may be characterized as
      occurring within the scope of the employee’s employment:
              (a) whether or not the act is one commonly done by
              such servants;
              (b) the time, place and purpose of the act;
              (c) the previous relations between the master and the
              servant;
              (d) the extent to which the business of the master is
              apportioned between different servants;
              (e) whether or not the act is outside the enterprise of
              the master or, if within the enterprise, has not been
              entrusted to any servant;
                                       8



             (f) whether or not the master has reason to expect
             that such an act will be done;
             (g) the similarity in quality of the act done to the act
             authorized;
             (h) whether or not the instrumentality by which the
             harm is done has been furnished by the master to the
             servant;
             (i) the extent of departure from the normal method of
             accomplishing an authorized result; and
             (j) whether or not the act is seriously criminal.
                     Comment a, concerning subsection (2),
             explains that the ultimate question in determining
             whether an employee’s conduct falls within the scope
             of employment is whether or not it is just that the loss
             resulting from the servant’s acts should be considered
             as one of the normal risks to be borne by the
             business in which the servant is employed.
             Restatement (Second) of Agency § 229 cmt. a.
      “Although the question of whether an act is within the scope of
      employment is ordinarily a jury question, depending on the
      surrounding facts and circumstances, the question as to whether
      the act which departs markedly from the employer’s business is still
      within the scope of employment may well be for the court.”
      Sandman, 154 N.W.2d at 118 (deciding that question whether
      employee was acting within scope of employment was properly a
      question for the court, not jury); cf. Mary KK v. Jack LL, 203 A.D.2d
      840 (N.Y. App. Div. 1994) (noting that “scope of employment” is
      usually a jury question, but summary judgment is appropriate where
      there is no conflicting evidence or the facts are undisputed).

Godar v. Edwards, 588 N.W.2d 701, 705–06 (Iowa 1999).

      In Godar, heard on appeal from a directed verdict motion, our supreme

court found a curriculum counselor acted outside the scope of his employment

when he allegedly abused a special needs student.        Id. at 706.   The court

reasoned the abuse was not “of the same general nature” as authorized by the

school in connection with his role as curriculum counselor. Id. at 706–07. The

court also noted even though the abuse occurred on school property, the school

was not automatically liable for the abuse. Id. The court found no evidence to
                                          9



support the fact the alleged abuse was “expected, foreseeable, or sanctioned by

the school district.” Id. at 707. “We do not believe that sexual abuse by a

teacher is a ‘normal’ risk associated with the objectives of educating students

such that it should be a risk that should be borne by the school district.” Id.

       Similarly, in Riniker v. Wilson, an employee claimed respondeat superior

liability against an employer for the abuse of the employee’s wife where the

employee’s job security was used as blackmail. 623 N.W.2d 220, 232 (Iowa Ct.

App. 2000).     We held alleged sexual abuse by one employee of another

employee’s wife was not committed in the scope of his employment, because the

alleged acts were a “substantial deviation from his duties . . . and were not

necessary to accomplish the purpose of employment.” Riniker, 623 N.W.2d at

232. Echoing Godar, we also reasoned that just because the acts occurred on

company property, the company was not automatically liable for the acts. Id. We

concluded the acts were so far removed from the employee’s job duties the

company could not be held liable. Id.

       In Weems v. Federated Mutual Insurance Company, the Northern District

of Iowa, while ruling on a motion for summary judgment, found the assault of an

employee by a supervisor generated a genuine issue of material fact. 220 F.

Supp. 2d 979, 994 (N.D. Iowa 2002). The assault occurred when the employee

confronted a supervisor about a hostile work environment claim. Id. at 992. The

employee’s act of recording the conversation angered the supervisor, and the

supervisor attempted to forcibly remove the recording device from the employee.

Id. at 992–93. The court found the supervisor’s act could fall within the scope of
                                          10



his employment, due to the fact the role of supervisor could “encompass

potentially heated interactions” with his subordinates. Id. at 993.

       Although Iowa jurisprudence has addressed respondeat superior in

multiple circumstances, our case law has yet to address the applicability of this

doctrine on the unique relationship between a mental health professional and a

former patient.

       In Block v. Gomez, the Wisconsin Court of Appeals evaluated a

respondeat superior claim in the context of a sexual relationship between a

counselor and a patient. 549 N.W.2d 783, 785 (Wis. Ct. App. 1996). The sexual

relationship began two months into the counseling relationship.            Id.   The

relationship occurred both in and out of the clinical setting; eventually the patient

moved in with the counselor.        Id.   Ultimately, the counseling and sexual

relationship ended. Id.

       The patient filed suit against the counselor and the clinic alleging the

counselor was acting within the scope of his employment and therefore the clinic

was liable under respondeat superior.          Id.   The patient presented expert

testimony demonstrating, pursuant to transference phenomenon, it was

impossible to separate the sexual and the therapeutic relationship. Id. at 785–

86. The counselor testified he had received training on transference. Id. at 785.

The counselor’s supervisor testified the clinic’s employee manual forbade sexual

relationships with patients, and it was against ethical guidelines. Id. The court

found the counselor was acting for his own personal interest, and not the interest

of or service to the clinic, when he initiated the sexual relationship with the
                                        11



patient. Id. at 788. “We reject [the patient’s] contention that the ‘transference

phenomenon’ makes [the counselor’s] sexual relationship with [the patient]

inseparable from his therapeutic relationship with [the patient] for purposes of the

Clinic’s vicarious liability.   ‘Therapist-patient sex arises not out of the

transference, which is essential to the therapy, but the intentional abuse of the

transference.’” Id. (citation omitted). The court reasoned the therapist’s intent

“must be considered when determining whether the conduct was in the scope of

the employment.” Id. Though, “if the employee fully steps aside from conducting

the employer’s business to procure a predominantly personal benefit, the

conduct falls outside the scope of employment.” Id.

       Here, the sexual relationship between Paradiso and Giudicessi began four

months after her discharge from any treatment by the UIHC. Paradiso knew the

relationship was wrong, as did Giudicessi. Paradiso also knew his actions were

far outside the scope of his employment duties with UIHC. He actively tried to

keep the relationship a secret, as did Giudicessi. There is no evidence in the

record showing Paradiso represented to Giudicessi the sexual relationship was a

continuation of their prior counseling relationship.       Paradiso pursued the

relationship for his own personal interest and not the interests of UIHC. While it

is possible Giudicessi thought the sexual relationship was a continuation of the

counseling relationship, our inquiry focuses on the intent of the employee,

Paradiso, and whether or not he was acting within the scope of his employment.

Godar, 588 N.W.2d at 705–06. Paradiso’s acts were “so far removed” from his

employment duties the State could not be held liable. Riniker, 623 N.W.2d at
                                             12



232; see also Sandman v. Hagan, 154 N.W.2d 113, 118 (Iowa 1967) (“[T]he

question as to whether the [employee’s] act which departs markedly from the

employer’s business is still within the scope of employment may well be for the

court.”). The record shows Paradiso knew the relationship was inappropriate, but

continued to pursue the relationship for his own gratification. His acts deviated

from the scope of his employment with the UIHC. We find the court erred in

finding a genuine issue of material fact existed regarding the State’s liability for

Paradiso’s relationship with Giudicessi. 3

       B.      Other Issues of Material Fact

       Since we have limited our inquiry only to the intent of the employee and

the scope of his employment, for the reasons stated above, we find no issues of

material fact exist concerning Giudicessi’s belief of continued treatment by




3
   Other courts have reached similar results. See, e.g., Bodin v. Vagshenian, 462 F.3d
481 (5th Cir. 2006) (declining to extend respondeat superior liability to hospital for sexual
abuse of patients by psychiatrist); Newyear v. Church Ins. Co., 155 F.3d 1041 (8th Cir.
1998) (applying respondeat superior and finding alleged acts of sexual misconduct
between priest and parishioner, committed during pastoral counseling, not within the
scope of pastor’s employment); Andrews v. United States, 732 F.2d 366 (4th Cir. 1984)
(finding employer clinic not liable for counselor who acted solely in his own interest when
he convinced a patient to have sex with him as part of her therapy); Piedmont Hosp.,
Inc. v. Palladino, 580 S.E.2d 215 (Ga. 2003) (holding hospital not liable to patient under
respondeat superior for hospital employee’s alleged misconduct in manipulating patient’s
genitals during patient’s stay at hospital); P.S. v. Psychiatric Coverage, Ltd., 887 S.W.2d
622 (Mo. Ct. App. 1994) (holding employer not liable under respondeat superior for
damages resulting from an employee psychiatrist’s involvement in a sexual relationship
with a patient); Buck v. Blum, 130 S.W.3d 285 (Tex. App. 2004) (holding hospital not
liable under respondeat superior for neurologist’s sexual abuse of a patient); Birkner v.
Salt Lake Cnty., 771 P.2d 1053 (Utah 1989) (stating therapist’s sexual conduct with
patient “arose from his own personal impulses, and not from an intention to further his
employer’s goals”); Thompson v. Everett Clinic, 860 P.2d 1054 (Wash Ct. App. 1993)
(finding employer hospital not liable under respondeat superior for doctor who sexually
abused patient because the doctor was acting on personal motives).
                                         13



Paradiso after her discharge or the transference theory, or the foreseeability of a

psychiatrist and patient sexual relationship.

IV.    CONCLUSION

       The district court erred in denying the State’s motion for summary

judgment and finding the existence of material issues of fact.

       REVERSED AND REMANDED.
