
    CAROLINE SHARPLES, Plaintiff-Appellant, v. STATE OF HAWAII, WILLIAM F. MCCOOK, JOHN DOES 1-5, JOHN DOE CORPORATIONS 1-5, JOHN DOE PARTNERSHIPS 1-5, ROE PARTNERSHIPS 1-5, and ROE GOVERNMENTAL 1-5, Defendants-Appellees
    NO. 13966
    (CIV. NO. 85-0605(3))
    JUNE 4, 1990
    LUM, C.J., PADGETT, HAYASHI, AND WAKATSUKI, JJ„ AND RETIRED JUSTICE NAKAMURA, ASSIGNED BY REASON OF VACANCY
    
    
      
       Retired Justice Nakamura heard oral argument in this case pursuant to a general order temporarily assigning him to a vacancy on the court. The vacancy was filled on March 9,1990, upon the swearing in of Justice Moon. HRS § 602-10 provides:
      After oral argument of a case, if a vacancy arises or if for any other reason a justice is unable to continue on the case, the case may be decided or disposed of upon the concurrence of any three members of the court without filling the vacancy or the place of such justice.
    
   OPINION OF THE COURT BY

LUM, C.J.

Plaintiff-Appellant Caroline Sharpies appeals from a grant of summary judgment in favor of Defendant-Appellee the State of Hawaii. Sharpies claims in her suit that psychiatrist Dr. William F. McCook, a State employee, had sex with her while she was McCook’s patient, and that the State is liable under a theory of respondeat superior for injuries caused to her by reason of the sex. We agree with the court below that summary judgment is appropriate.

A.

When reviewing a grant of summary judgment, the standard to be applied by the appellate court is identical to that employed by the trial court; the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion. Miller v. First Hawaiian Bank, 61 Haw. 346, 349, 604 P.2d 39, 41 (1979).

The facts as presented by Appellant Sharpies, the party opposing the motion, are as follows. Sharpies sought psychiatric care with the State’s Maui Psychiatric Clinic in the summer of 1983. At that time, McCook was an employee of the State, and had been since 1982. A psychiatrist-patient relationship was established between McCook and Sharpies. During the parties’ professional relationship, at McCook’s residence, Sharpies was induced by McCook to engage in sexual relations with him. McCook thought that sexual relations with Sharpies was in furtherance of therapy. Immediately after this sexual encounter, McCook severed all relationships with Sharpies. Sharpies was caused additional psychiatric harm by McCook’s swift entry in an affair and abrupt termination of it.

Sharpies argues that material factual disputes include: (1) whether the conduct of McCook was foreseeable by the State or necessarily in the furtherance of the State’s business or interest; (2) whether the tortious conduct of McCook, was part of his professional care [therapy] for Sharpies; and (3) whether the conduct of McCook was ratified by the State by not recording McCook’s conduct in Sharpies’ medical records.

B.

We reject Sharpies’ argument that factual issues preclude summary judgment. The State is not vicariously liable for the harm caused by Dr. McCook. For the State to be liable under the doctrine of respondeat superior, McCook’s acts must have been within the scope of his employment. We hold McCook’s behavior, was as a matter of law, not within the scope of his employment.

The most closely analogous case brought to the attention of this court, Cosgrove v. Lawrence, 215 N.J. Super. 561, 522 A.2d 483 (App. Div. 1987), held that summary judgment was appropriate. In Cosgrove a social worker therapist employed by the County of Somerset and the Richard Hall Community Mental Health Center, both public entities, engaged in sexual relations with a patient. As is reported in the lower court’s opinion, the therapist characterized his actions as being in pursuit of his employer’s ends. See Cosgrove v. Lawrence, 214 N.J. Super. 670, 674, 520 A.2d 844, 846 (Law Div. 1986). The appellate court agreed with the lower court that, as a matter of law, such conduct is not within the scope of employment so as to subject the employer to respondeat superior liability. We adopt the rule of law put forth by the New Jersey Superior Court in Cosgrove.

Peter Cahill (James Krueger and Timothy P. McNulty on the briefs) for Appellant Sharpies.

Gale L. F. Ching (Laurence K. Lau with him on the brief), Deputy Attorneys General, for Appellee State of Hawaii.

C.

We also reject Sharpies’ argument that she can recover under a ratification theory. The employer’s liability under a ratification theory requires that the act complained of be done on behalf of or under the authority of the employer, and there must be clear evidence of the employer’s approval of the wrongful conduct. Costa v. Able Distribs., Inc., 3 Haw. App. 486, 490, 653 P.2d 101, 105 (1982). Nothing in the record tends to show employer ratification of McCook’s conduct.

Thus, the summary judgment was correctly granted.

Affirmed. 
      
      This inference is supported by the fact that in his deposition, Dr. Licht, a colleague of McCook at the Maui clinic, reported that McCook had “rationalized that it [having had sexual intercourse with Sharpies] was therapeutic, that it was part of his therapy with her[.]”
     