LARRY HICKS, District Judge
Before the Court is Plaintiffs' Motion for Finding Regarding District's Respondeat Superior Liability for Green's Actions Against Doe B (Docket No. 74), filed March 21, 2003. Defendants filed an opposition and counter motion for the same (Docket No. 78) on April 8, 2003, to which Plaintiffs subsequently repied (Docket No. 83). Both parties request this Court grant summary judgment regarding whether the Defendant School District is subject to respondeat superior liability for the assault and battery of Doe B by the School District's employee, Defendant Green. Upon review of the record and consideration of the relevant law, this Court makes the following disposition:
A lengthy history of Nevada state common law holds employers vicariously liable for the tortuous conduct of their employees if the employee was acting within the scope of his employment at the time he engaged in the offensive conduct, See, e.g., National Convenience' Stores v. fantauzzi, 94 Nev. 655, 659, 584 P.2d 689, 692 (1978); Hallen v. United States, 877 F. Supp. 1423, 1427 (D. Nev. 1995), Generally, whether an employee was acting within the scope of his or her employment for the purposes of respondeat superior liability is a question to be determined by the trier of fact. Evans v. Southwest Gas Corporation, 108 Nev. 1002, 1005, 842 P.2d 719, 721 (1992). However, where undisputed evidence exists concerning the employee's status at the time of the tortuous act, the issue may be resolved as a matter of law. Id. As there is no material dispute as to when and where the various instances of inappropriate contact occurred between Doe and Green, this case is ripe for such a determination.
In Nevada Dept. of Human Resources, Div, of Mental Hygiene and Mental Retardation v. Jimenez, the Nevada Supreme Court carefully delineated the parameters of respondeat superior liability, which clarified but did not significantly depart from the voluminous prior holdings. 113 Nev. 356, 935 P.2d 274 (1997). However, Defendant's opposition points out that the Nevada Revised Statutes also address this issue. The relevant statute states in part:
1. An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee:
(a) Was a truly independent venture of the employee;
(b) Was not commuted in the course of the very task assigned to the employes; and
(c) Was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his employment. For the purposes of this subsection, conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.
Nev. Rev. Slat. § 41.745. In asserting that this statute was adopted in 1997 in response to the Jimenez case, the Defense apparently argues that the statute marks a change in Nevada law. After conducting its own legal research, this Court finds that the Defense's conclusion is without merit as the language of the statute does not differ significantly from the Nevada Supreme Court's ruling in Jimenez or prior cases. For instance, the Jiminez Court explains that "[i]f the employee's tort is truly an independent venture of his own and not committed in the course of the very task assigned to him, the employer is not liable." 113 at 364 (citing Prell Hotel Corp. v. Antonncci, S6 Nev. 390, 391, 469 P.2d 339, 400 (1970)). The Court also emphasizes that the tortious conduct must be generally foreseeable "in the context of the particular enterprise." Id. at 365. Though stated differently, the foreseeability test described in Jimenez reflects the same policy rationale apparent in the statute's requirement that a "person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury:" The Jimenez Court required that "in the context of the particular enterprise an employee's conduct [must not be] so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Id. Consequently, it is clear that the Nevada statute does not require the utilization of a standard foreign to that applied in Nevada case law addressing responded', superior liability. This Court will therefore review the requirements imposed by the statute in a manner which conforms to the Nevada common law.
Though many Nevada state and federal cases develop the issue o f respondeat superior liability prior to the adoption of this statute, since 1997 relatively few cases have addressed the issue. The few cases uncovered by this Court which do discuss an employer's vicarious liability have not mentioned the statute or indicated that the statute signaled any change in Nevada law. See, e.g., Switzer v. Rivera, 174 F. Supp.2d 1097 (D, Nev.2001) and Burns v. Mayer, 175 F. Supp.2d 1259 (D. Nev. 2001).
Initially, it is clear to this Court that several of the tortuous acts which Green allegedly committed did occur within the course and scope of Green's employment and were reasonably foreseeable. Though Green was obviously not hired to molest, abuse, or threaten minors, the Jimenez Court explains that "the proper inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal." Id. at 368 (internal citations omitted). In a case with similar facts, one district court noted that the Nevada Supreme Court had held that a blackjack dealer who slugs a patron is acting within the course of the very task assigned, Doc v. Esces, 926 F. Supp. 979, 989 (1996) (citing Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 469 P.2d 399 (1970)). The court then added:
This court fails to discern any principled legal distinction between a battery claim against a casino whose blackjack dealer slugs a patron and the same claim against a school district whose teacher fondles a student, In both cases the plaintiff was on the defendant's premises for the purpose of enjoying the defendant's services. In neither case can it reasonably be argued that the employee's duties included acts of common law battery,
Id. The holding in
Doe v. Estes is consistent with numerous Nevada cases finding that an employer is liable for the sexual misconduct of his employee when that conduct occurs in the workplace. For instance, in
Jimenez the court found that the sexual assaults, committed upon children placed in a group home by the home's supervisor, were foreseeable. 113 Nev. At 3d. Moreover, these acts were not a substantial deviation from the employee's duties "for purely personal reasons . . . because the sexual assaults were committed during a series of acts authorized by the State."
Id. In
Ray v. Value Behavioral Health, Inc., the court found that a psychologist's sexual harassment of his client exposed the counseling firm to liability for its employee's acts.
967 F. Supp. 417 (D.Nev. 1997). The Court concluded that the psychologist's abuse of his power was foreseeable, and that the acts were committed in the course of a series of acts . . . authorized by the principal.
Id. at 421-22,
Consequently, it is apparent that the School District is liable for intentional torts committed by its employees during their employment, even if it is clear that those acts were not authorized by the School District. In the instant case, Green was authorized by the School District to monitor and instruct the students attending the school during school hours, and to supervise and coach those students who participated in the school-sanctioned athletic activities. The authority vested in Green permitted him to direct and discipline students, to meet privately with students in his office, to pull students out of other classes, and to have other substantial contact with students at his discretion. Therefore, this Court concludes that the Defendant School District is subject to respondeat superior liability for the tortuous acts committed by Green at those times in which he was engaged — or should have been engaged — in his duties as an instructor and athletics coach of the school.
However, the School District cannot be held liable for tortuous conduct Green committed while he was not working — to hold otherwise would be to disregard the statutory rule and case holdings which emphasize that the employee must be engaged in the "very task" assigned by the employer at the time the tort is committed. Therefore, this Court concludes conduct that did not occur in the course of acts authorized by the School District are outside of the course and scope, of Green's employment and cannot subject the School District to liability.
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Finding Regarding District's Respondeat Superior Liability for Green's Actions Against Doe B (Docket No. 74), and Defendant's counter motion for the same, are GRANTED in — part and DENIED in — part as set forth in this order.
IT IS SO ORDERED.