-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JANE DOE 1,

Plaintiff-Appellant,

UNPUBLISHED

January 23, 2018

v No. 335089

Alger Circuit Court

GEORGE CONRAD-SPENCER YOUNG, D.C., 

SOLOMON L. COGAN, D.C., HEALTH QUEST 

OF ALGER COUNTY, PLC, and QUEST 

HEALTH SYSTEMS III, PLLC, doing business as 

HEALTH QUEST OF MUNISING,

LC No. 14-007390-NO

Defendants-Appellees,

and

QUEST SYSTEMS II PLLC, doing business as 

HEALTH QUEST OF GRAND RAPIDS, QUEST 

HEALTH SYSTEMS IV PLLC, doing business as 

HEALTH QUEST OF COLON/BRONSON, 

QUEST HEALTH SYSTEMS V PLLC, doing 

business as HEALTH QUEST OF TRENTON, 

QUEST HEALTH SYSTEMS VI PLLC, doing 

business as HEALTH QUEST OF GRAND 

BLANC/BURTON, QUEST HEALTH SYSTEMS 

VII PLLC, doing business as HEALTH QUEST OF 

SOUTHFIELD MICHIGAN, QUEST HEALTHY 

SYSTEM VIII PLLC, doing business as HEALTH 

QUEST OF ROCHESTER HILLS, QUEST 

HEALTH SYSTEMS IX PLLC, doing business as 

HEALTH QUEST OF TAYLOR, QUEST 

HEALTH SYSTEMS X PLLC, doing business as 

HEALTH QUEST LIVONIA/BACK NECK PN C, 

QUEST HEALTH SYSTEMS XI PLLC, doing 

business as HEALTH QUEST 

TROY/DEARBORN/GOODRICH, and QUEST 

HEALTH SYSTEMS XII PLLC, doing business as 

HEALTH QUEST JENISON/TROY/OTISVILLE,

Defendants.
-2-

SHANNON WASHBURN,

Plaintiff-Appellant,

v No. 335104

Alger Circuit Court

GEORGE CONRAD-SPENCER YOUNG, D.C., 

GEORGE CONRAD-SPENCER YOUNG, D.C., 

SOLOMON L. COGAN, D.C., HEALTH QUEST 

OF ALGER COUNTY, PLC, and QUEST 

HEALTH SYSTEMS III, PLLC, doing business as 

HEALTH QUEST OF MUNISING,

LC No. 14-007388-NH

Defendants-Appellees,

and

QUEST SYSTEMS II PLLC, doing business as 

HEALTH QUEST OF GRAND RAPIDS, QUEST 

HEALTH SYSTEMS IV PLLC, doing business as 

HEALTH QUEST OF COLON/BRONSON, 

QUEST HEALTH SYSTEMS V PLLC, doing 

business as HEALTH QUEST OF TRENTON, 

QUEST HEALTH SYSTEMS VI PLLC, doing 

business as HEALTH QUEST OF GRAND 

BLANC/BURTON, QUEST HEALTH SYSTEMS 

VII PLLC, doing business as HEALTH QUEST OF 

SOUTHFIELD MICHIGAN, QUEST HEALTHY 

SYSTEM VIII PLLC, doing business as HEALTH 

QUEST OF ROCHESTER HILLS, QUEST 

HEALTH SYSTEMS IX PLLC, doing business as 

HEALTH QUEST OF TAYLOR, QUEST 

HEALTH SYSTEMS X PLLC, doing business as 

HEALTH QUEST LIVONIA/BACK NECK PN C, 

QUEST HEALTH SYSTEMS XI PLLC, doing 

business as HEALTH QUEST 

TROY/DEARBORN/GOODRICH, and QUEST 

HEALTH SYSTEMS XII PLLC, doing business as 

HEALTH QUEST JENISON/TROY/OTISVILLE

Defendants.

JENNIFER CARLSON,
-3-

Plaintiff-Appellant,

v No. 335105

Alger Circuit Court

GEORGE CONRAD-SPENCER YOUNG, D.C., 

SOLOMON L. COGAN, D.C., HEALTH QUEST 

OF ALGER COUNTY, PLC, and QUEST 

HEALTH SYSTEMS III, PLLC, doing business as 

HEALTH QUEST OF MUNISING,

LC No. 14-007389-NH

Defendants-Appellees,

and

QUEST SYSTEMS II PLLC, doing business as 

HEALTH QUEST OF GRAND RAPIDS, QUEST 

HEALTH SYSTEMS IV PLLC, doing business as 

HEALTH QUEST OF COLON/BRONSON, 

QUEST HEALTH SYSTEMS V PLLC, doing 

business as HEALTH QUEST OF TRENTON, 

QUEST HEALTH SYSTEMS VI PLLC, doing 

business as HEALTH QUEST OF GRAND 

BLANC/BURTON, QUEST HEALTH SYSTEMS 

VII PLLC, doing business as HEALTH QUEST OF 

SOUTHFIELD MICHIGAN, QUEST HEALTHY 

SYSTEM VIII PLLC, doing business as HEALTH 

QUEST OF ROCHESTER HILLS, QUEST 

HEALTH SYSTEMS IX PLLC, doing business as 

HEALTH QUEST OF TAYLOR, QUEST 

HEALTH SYSTEMS X PLLC, doing business as 

HEALTH QUEST LIVONIA/BACK NECK PN C, 

QUEST HEALTH SYSTEMS XI PLLC, doing 

business as HEALTH QUEST 

TROY/DEARBORN/GOODRICH, and QUEST 

HEALTH SYSTEMS XII PLLC, doing business as 

HEALTH QUEST JENISON/TROY/OTISVILLE

Defendants.

MELISSA LUCKEY,

Plaintiff-Appellant,

v No. 335106

Alger Circuit Court
-4-

GEORGE CONRAD-SPENCER YOUNG, D.C., 

SOLOMON L. COGAN, D.C., HEALTH QUEST 

OF ALGER COUNTY, PLC, and QUEST 

HEALTH SYSTEMS III, PLLC, doing business as 

HEALTH QUEST OF MUNISING,

GEORGE CONRAD-SPENCER YOUNG, D.C.,

LC No. 14-007391-NH

Defendants-Appellees,

and

QUEST SYSTEMS II PLLC, doing business as 

HEALTH QUEST OF GRAND RAPIDS, QUEST 

HEALTH SYSTEMS IV PLLC, doing business as 

HEALTH QUEST OF COLON/BRONSON, 

QUEST HEALTH SYSTEMS V PLLC, doing 

business as HEALTH QUEST OF TRENTON, 

QUEST HEALTH SYSTEMS VI PLLC, doing 

business as HEALTH QUEST OF GRAND 

BLANC/BURTON, QUEST HEALTH SYSTEMS 

VII PLLC, doing business as HEALTH QUEST OF 

SOUTHFIELD MICHIGAN, QUEST HEALTHY 

SYSTEM VIII PLLC, doing business as HEALTH 

QUEST OF ROCHESTER HILLS, QUEST 

HEALTH SYSTEMS IX PLLC, doing business as 

HEALTH QUEST OF TAYLOR, QUEST 

HEALTH SYSTEMS X PLLC, doing business as 

HEALTH QUEST LIVONIA/BACK NECK PN C, 

QUEST HEALTH SYSTEMS XI PLLC, doing 

business as HEALTH QUEST 

TROY/DEARBORN/GOODRICH, and QUEST 

HEALTH SYSTEMS XII PLLC, doing business as 

HEALTH QUEST JENISON/TROY/OTISVILLE,

Defendants.

JANE DOE 2,

Plaintiff-Appellant,

v No. 335107

Alger Circuit Court

GEORGE CONRAD-SPENCER YOUNG, D.C., 

SOLOMON L. COGAN, D.C., HEALTH QUEST 

OF ALGER COUNTY, PLC, and QUEST 

HEALTH SYSTEMS III, PLLC, doing business as 

LC No. 14-007400-NH
-5-

HEALTH QUEST OF MUNISING,

 

 Defendants-Appellees,

and

QUEST SYSTEMS II PLLC, doing business as 

HEALTH QUEST OF GRAND RAPIDS, QUEST 

HEALTH SYSTEMS IV PLLC, doing business as 

HEALTH QUEST OF COLON/BRONSON, 

QUEST HEALTH SYSTEMS V PLLC, doing 

business as HEALTH QUEST OF TRENTON, 

QUEST HEALTH SYSTEMS VI PLLC, doing 

business as HEALTH QUEST OF GRAND 

BLANC/BURTON, QUEST HEALTH SYSTEMS 

VII PLLC, doing business as HEALTH QUEST OF 

SOUTHFIELD MICHIGAN, QUEST HEALTHY 

SYSTEM VIII PLLC, doing business as HEALTH 

QUEST OF ROCHESTER HILLS, QUEST 

HEALTH SYSTEMS IX PLLC, doing business as 

HEALTH QUEST OF TAYLOR, QUEST 

HEALTH SYSTEMS X PLLC, doing business as 

HEALTH QUEST LIVONIA/BACK NECK PN C, 

QUEST HEALTH SYSTEMS XI PLLC, doing 

business as HEALTH QUEST 

TROY/DEARBORN/GOODRICH, and QUEST 

HEALTH SYSTEMS XII PLLC, doing business as 

HEALTH QUEST JENISON/TROY/OTISVILLE, 

 Defendants.

JANE DOE 3,

Plaintiff-Appellant,

v No. 335108

Alger Circuit Court

GEORGE CONRAD-SPENCER YOUNG, D.C., 

SOLOMON L. COGAN, D.C., HEALTH QUEST 

OF ALGER COUNTY, PLC, and QUEST 

HEALTH SYSTEMS III, PLLC, doing business as 

HEALTH QUEST OF MUNISING,

LC No. 14-007401-NH

Defendants-Appellees,

and
-6-

QUEST SYSTEMS II PLLC, doing business as 

HEALTH QUEST OF GRAND RAPIDS, QUEST 

HEALTH SYSTEMS IV PLLC, doing business as 

HEALTH QUEST OF COLON/BRONSON, 

QUEST HEALTH SYSTEMS V PLLC, doing 

business as HEALTH QUEST OF TRENTON, 

QUEST HEALTH SYSTEMS VI PLLC, doing 

business as HEALTH QUEST OF GRAND 

BLANC/BURTON, QUEST HEALTH SYSTEMS 

VII PLLC, doing business as HEALTH QUEST 

OF SOUTHFIELD MICHIGAN, QUEST 

HEALTHY SYSTEM VIII PLLC, doing business 

as HEALTH QUEST OF ROCHESTER HILLS, 

QUEST HEALTH SYSTEMS IX PLLC, doing 

business as HEALTH QUEST OF TAYLOR, 

QUEST HEALTH SYSTEMS X PLLC, doing 

business as HEALTH QUEST LIVONIA/BACK 

NECK PN C, QUEST HEALTH SYSTEMS XI 

PLLC, doing business as HEALTH QUEST 

TROY/DEARBORN/GOODRICH, and QUEST 

HEALTH SYSTEMS XII PLLC, doing business as 

HEALTH QUEST JENISON/TROY/OTISVILLE,

Defendants.

JANE DOE 4 and JOHN DOE 1,

Plaintiff-Appellant,

v No. 335109

Alger Circuit Court

GEORGE CONRAD-SPENCER YOUNG, D.C., 

SOLOMON L. COGAN, D.C., HEALTH QUEST 

OF ALGER COUNTY, PLC, and QUEST 

HEALTH SYSTEMS III, PLLC, doing business as 

HEALTH QUEST OF MUNISING,

LC No. 14-007402-NH

Defendants-Appellees,

and

QUEST SYSTEMS II PLLC, doing business as 

HEALTH QUEST OF GRAND RAPIDS, QUEST 

HEALTH SYSTEMS IV PLLC, doing business as 

HEALTH QUEST OF COLON/BRONSON, 
-7-

QUEST HEALTH SYSTEMS V PLLC, doing 

business as HEALTH QUEST OF TRENTON, 

QUEST HEALTH SYSTEMS VI PLLC, doing 

business as HEALTH QUEST OF GRAND 

BLANC/BURTON, QUEST HEALTH SYSTEMS 

VII PLLC, doing business as HEALTH QUEST 

OF SOUTHFIELD MICHIGAN, QUEST 

HEALTHY SYSTEM VIII PLLC, doing business 

as HEALTH QUEST OF ROCHESTER HILLS, 

QUEST HEALTH SYSTEMS IX PLLC, doing 

business as HEALTH QUEST OF TAYLOR, 

QUEST HEALTH SYSTEMS X PLLC, doing 

business as HEALTH QUEST LIVONIA/BACK 

NECK PN C, QUEST HEALTH SYSTEMS XI 

PLLC, doing business as HEALTH QUEST 

TROY/DEARBORN/GOODRICH, and QUEST 

HEALTH SYSTEMS XII PLLC, doing business as 

HEALTH QUEST JENISON/TROY/OTISVILLE,

Defendants.

APRIL NAGELKIRK,

Plaintiff-Appellant,

v No. 335110

Alger Circuit Court

GEORGE CONRAD-SPENCER YOUNG, D.C., 

SOLOMON L. COGAN, D.C., HEALTH QUEST 

OF ALGER COUNTY, PLC, and QUEST 

HEALTH SYSTEMS III, PLLC, doing business as 

HEALTH QUEST OF MUNISING,

LC No. 14-007462-NH

Defendants-Appellees,

and

QUEST SYSTEMS II PLLC, doing business as 

HEALTH QUEST OF GRAND RAPIDS, QUEST 

HEALTH SYSTEMS IV PLLC, doing business as 

HEALTH QUEST OF COLON/BRONSON, 

QUEST HEALTH SYSTEMS V PLLC, doing 

business as HEALTH QUEST OF TRENTON, 

QUEST HEALTH SYSTEMS VI PLLC, doing 

business as HEALTH QUEST OF GRAND 

BLANC/BURTON, QUEST HEALTH SYSTEMS 
-8-

VII PLLC, doing business as HEALTH QUEST 

OF SOUTHFIELD MICHIGAN, QUEST 

HEALTHY SYSTEM VIII PLLC, doing business 

as HEALTH QUEST OF ROCHESTER HILLS, 

QUEST HEALTH SYSTEMS IX PLLC, doing 

business as HEALTH QUEST OF TAYLOR, 

QUEST HEALTH SYSTEMS X PLLC, doing 

business as HEALTH QUEST LIVONIA/BACK 

NECK PN C, QUEST HEALTH SYSTEMS XI 

PLLC, doing business as HEALTH QUEST 

TROY/DEARBORN/GOODRICH, and QUEST 

HEALTH SYSTEMS XII PLLC, doing business as 

HEALTH QUEST JENISON/TROY/OTISVILLE,

Defendants.

Before: O’CONNELL, P.J., and BECKERING and STEPHENS, JJ.

PER CURIAM.

Plaintiffs, Jane Doe 1, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jennifer Carlson, Melissa 

Luckey, April Nagelkirk, and Shannon Washburn, appeal by leave granted1 the trial court’s 

summary disposition of their actions against defendants Health Quest of Alger County, PLC, and 

Quest Health Systems III, PLLC, doing business as Health Quest of Munising (collectively, 

“Health Quest”) and Solomon L Cogan, D.C., under MCR 2.116(C)(10) (no genuine issue of 

material fact, and moving party entitled to judgment as a matter of law).

2

 For the reasons stated 

below, we affirm.

 1 Jane Doe 1 v George Conrad-Spencer Young, D.C., unpublished orders of the Court of 

Appeals, entered March 14, 2017 (Docket Nos. 335089; 335104; 335105; 335106; 335107; 

335108; 335109; 335110). By the same order, the Court consolidated the cases on its own 

motion pursuant to MCR 7.216(A)(7).

2 The parties stipulated to the dismissal of all other defendants except George Conrad-Spencer 

Young, D.C. on March 13, 2015. Young was found in default on June 29, 2015. The parties 

indicated at oral argument that the determination of an award of damages against Young has not 

yet occurred. Because Young is not a party to this appeal, “defendants” refers to Health Quest 

and Cogan only.
-9-

I. STATEMENT OF PERTINENT FACTS

The eight plaintiffs in these consolidated cases were patients of defendant George 

Conrad-Spencer Young, D.C., at defendant Health Quest of Munising, a chiropractic clinic 

owned by defendant Cogan. Three of the plaintiffs were also employees of the clinic. In 

October 2011, Young began working at Health Quest of Munising.3 Plaintiffs allege that in 

2012, Young sexually molested them when he administered chiropractic treatment. Specifically, 

they claim that he touched them inappropriately under the guise of treating them for displaced 

ribs. None of the plaintiffs complained to clinic staff or to Cogan about the inappropriate 

touching; most of them did not know at the time that Young’s treatment was medically 

unnecessary or his conduct inappropriate.

Young’s misconduct began to come to light on November 26, 2012, when he made 

sexual remarks to plaintiff Washburn during treatment. According to Washburn’s deposition 

testimony, Young pulled her off the table, held her in his arms, and then kissed her. Washburn 

told Young “No,” and demanded that he let her go. When Young finally let her go, she left the 

building without speaking to anyone. She went to the police the same day and reported what 

happened.

On December 13, 2012, a prosecutor from the Munising prosecutor’s office contacted 

Health Quest’s corporate counsel and informed him that Young had been arrested and charged 

with assault. Cogan received a call about the matter the same day. Cogan testified at deposition 

that this was the first notice he had about any criminal matters related to Young. Cogan 

immediately suspended Young from seeing patients and arranged for a substitute doctor. Young 

was sent to another clinic to do paperwork while defendants conducted an investigation. On 

December 27, 2012, after the investigation, Young was officially terminated. 

Washburn later realized that Young had touched her inappropriately during his prior 

treatments of her.4 Because of a police investigation, word-of-mouth between other patients, and 

a public letter from Cogan on behalf of Health Quest that was published in the newspaper in 

January 2013, the eight plaintiffs in these cases came forward with similar reports of Young 

 3 He had been a licensed chiropractor since 2003. 

4 Young pleaded guilty to the November 26, 2012 assault against Washburn. At his sentencing, 

Washburn and her mother, Doe 3, asked the prosecutor why Young was not charged with a 

sexual assault. According to them, the prosecutor explained that Young’s conduct was not 

sexual because there was no touching of the breasts or genitals. Washburn then told the 

prosecutor that Young had touched her breasts every time during his chiropractic treatments. 

Doe 3 said she had witnessed the touching and was touched in that manner herself by Young. 

Washburn testified at deposition that Young had explained to her and her mother that doing so 

was a necessary part of the treatment process. Until that point, they did not believe anything was 

inappropriate about Young touching their breasts during treatment. Washburn testified that 

when talking to the prosecutor, “that’s when it came out, like that’s when it dawned on me and 

[Doe 3]” that Young’s conduct was totally inappropriate.
-10-

touching them in a sexual manner during treatment. Young was charged with criminal sexual 

conduct; a jury found him guilty of seven counts of fourth-degree criminal sexual conduct, MCL 

750.520e(1)(a) (force or coercion), and the trial court sentenced him to a period of imprisonment.

In 2014, plaintiffs brought actions against Young for negligence and defendants for 

negligence and vicarious liability. Plaintiffs alleged that defendants were negligent in hiring, 

retaining, and failing to properly supervise Young, and that Health Quest and its parent entities 

are vicariously liable for the actions of Young because he was their employee. Plaintiffs also 

alleged violations of the Elliot-Larsen Civil Rights Act (CRA), MCL 37.2101 et seq. The 

employee-plaintiffs alleged sexual harassment based on a hostile work environment, and all 

plaintiffs alleged discrimination in public accommodations or services based on gender.

Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). They 

argued that plaintiffs failed to state a claim for vicarious liability, because as a matter of law, 

Young’s sexual misconduct occurred outside the scope of his employment. Defendants 

maintained that plaintiffs’ negligent hiring and supervision claims fail because they cannot show 

that defendants did not adequately investigate Young upon hiring him or that defendants knew or 

should have known that he had a proclivity for sexual molestation. Defendants argued that 

plaintiffs’ civil rights claims fail because, among other reasons, plaintiffs cannot show that 

defendants knew about the misconduct or establish the elements of respondeat superior. At the 

hearing on the motion, defendants argued that they knew nothing about Young’s misconduct, 

and therefore had no duty to take action to prevent it. They further argued that regardless of 

Young’s viewing of scantily clad women on his computer, and sexual remarks, under Brown v 

Brown, 478 Mich 545; 739 NW2d 313 (2007), these incidents did not make it foreseeable that 

Young would sexually molest patients. Defendants contended that in the absence of notice, they 

cannot be held vicariously liable. Cogan also emphasized that he was not Young’s employer; he 

is an employee of Health Quest, and plaintiffs presented no evidence that he was negligent in 

hiring or retaining Young.

Plaintiffs argued that the question of the foreseeability of Young’s conduct should be a 

question for the jury. They tried to distinguish Brown based on the nature of the work, 

maintaining that because Young’s job involved working with women and placing his hands on 

women, defendants should have foreseen his propensity for sexually molesting his patients in 

light of his sexual comments at work. Plaintiffs also argued that defendants benefited financially 

from Young’s treatment of them, and therefore should be held liable for his misconduct.

After hearing oral argument and taking the matter under advisement, the trial court issued 

a written opinion and order granting defendants’ motions for summary disposition. The court 

ruled in relevant part that the record did not support the fact that defendants received “adequate 

or sufficient notice” of Young’s misconduct or that his acts of sexual misconduct were 

foreseeable, and that plaintiffs failed to establish a genuine issue of material fact in support of 

their claims against Cogan and Health Quest.
-11-

II. ANALYSIS

A. STANDARD OF REVIEW

The Court reviews de novo a trial court’s decision on a motion for summary disposition. 

Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733 (2001). The trial 

court granted summary disposition under MCR 2.116(C)(10). A motion for summary disposition 

under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Smith v Globe Life Ins Co, 460 

Mich 446, 454; 597 NW2d 28 (1999). “In reviewing a motion for summary disposition brought 

under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, 

and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in 

the light most favorable to the party opposing the motion.” Quinto v Cross & Peters Co, 451 

Mich 358, 362; 547 NW2d 314 (1996). If the documentary evidence shows that there is no 

genuine issue of material fact and the moving party is entitled to judgment as a matter of law, the 

trial court may grant the motion. Id.; MCR 2.116(C)(10), (G)(4).

B. NEGLIGENCE

Plaintiffs first contend that the trial court erred when it did not determine that Cogan had 

a duty to protect the female employees and patients of Health Quest because of the “special 

relationship” among the parties that arose when each of the plaintiffs entrusted herself to 

Young’s chiropractic treatment at a clinic owned and under Cogan’s supervision. We find no 

error in the trial court’s dismissal of plaintiffs’ claim against Cogan for negligent hiring, 

retention, and supervision.

Whether a duty exists is a question of law. Hill v Sears, Roebuck and Co, 492 Mich 651, 

659; 822 NW2d 190 (2012). There can be no tort liability unless the defendant owed a duty to 

the plaintiff. Id. at 660. Although every person who engages in an undertaking “has a duty to 

use due care or to not unreasonably endanger the person or property of others[,]” there generally 

is “no duty that obligates one person to aid or protect another.” Id. at 660-661 (quotation marks 

and citation omitted). A duty may arise “from a statute, contractual relationship, or by operation 

of law,” as plaintiffs allege in this case. Id. at 661. Whether a duty arises by operation of 

common law involves consideration of several factors, including the relationship between the 

actor and the plaintiff, the social costs of imposing a duty, and the foreseeability of the harm. Id. 

Michigan’s Supreme Court has recognized that,

“[t]he most important factor to be considered [in this analysis] is the relationship 

of the parties” and also that there can be no duty imposed when the harm is not 

foreseeable. In other words, “[b]efore a duty can be imposed, there must be a 

relationship between the parties and the harm must have been foreseeable.” If 

either of these two factors is lacking, then it is unnecessary to consider any of the 

remaining factors. [Id., quoting In re Certified Question, 479 Mich 498, 505, 508; 

740 NW2d 206 (2007).]

In the present case, the trial court concluded that liability could not be imposed where 

plaintiffs had offered no evidence establishing a material question of fact regarding whether 
-12-

Cogan received notice of Young’s misconduct or that such misconduct was foreseeable. This 

ruling is consistent with our Supreme Court’s explanation in Hill that, “[b]efore a duty can be 

imposed, there must be a relationship between the parties and the harm must have been 

foreseeable.” Hill, 492 Mich at 661 (quotation marks and citation omitted; emphasis added). 

Plaintiffs contend that Young’s inappropriate comments to office staff and viewing of scantily

clad women on the Internet in his office rendered his sexual misconduct foreseeable.

In Brown v Brown, 478 Mich 545, 547-548; 739 NW2d 313 (2007), our Supreme Court 

held that, absent a prior criminal record, history of violent behavior, or comments that convey 

“an unmistakable, particularized” threat of the specific misconduct at issue, an employer is not 

liable for its employee’s criminal acts. Brown addressed the foreseeability of criminal conduct in 

an action brought by a plaintiff who had been sexually assaulted by one of the defendantemployer’s employees. The plaintiff worked as a security guard at the defendant-employer’s 

plant. One of the defendant’s employees repeatedly made “very crude, offensive sexual 

remarks” to the plaintiff, who complained about the comments to a plant manager several times. 

Id. at 548-550. One night, as the plaintiff was making her nightly rounds through the plant, the 

employee forced her into a women’s room and sexually assaulted her; the plaintiff immediately 

reported the assault to the police. Id. at 550. The police arrested the employee, and he later 

pleaded no-contest to a charge of attempted third-degree criminal sexual conduct. Prior to this 

incident, the employee did not have a criminal record. Id.

The plaintiff sued the defendant under theories of vicarious liability and negligence for 

failing to prevent the sexual assault. Id. The trial court granted the defendant’s motion for 

summary disposition, finding no genuine issue of material fact concerning whether the defendant 

was liable for the unforeseen criminal acts of its employee. Id. On appeal, this Court reversed 

the trial court’s order in a published decision holding that there was a genuine issue of material 

fact regarding whether the defendant knew or should have known about the perpetrator’s 

criminal sexual propensities. Brown v Brown, 270 Mich App 689, 701; 715 NW2d 626 (2006), 

rev’d by Brown 478 Mich at 548. Defendant successfully applied for leave to appeal this Court’s 

decision in our Supreme Court.

The issue before the Supreme Court was “whether an employee’s criminal activity is 

foreseeable by his employer and whether the employer is liable for that criminal activity.” 

Brown, 478 Mich at 553. The Brown Court stressed the irrational, unpredictable, and arbitrary 

nature of criminal activity and its effect on considerations of foreseeability and duty. Id. at 554. 

The Supreme Court observed, “Employers generally do not assume their employees are potential 

criminals, nor should they.” Id. The Brown Court concluded that the defendant’s knowledge of 

its employee’s sexually charged words did not create a duty owed by the defendant to the

plaintiff, reasoning as follows:

[A]n employer can assume that its employees will obey our criminal laws. 

Therefore, it cannot reasonably anticipate that an employee’s lewd, tasteless 

comments are an inevitable prelude to rape if those comments did not clearly and 

unmistakably threaten particular criminal activity that would have put a 

reasonable employer on notice of an imminent risk of harm to a specific victim. 

Comments of a sexual nature do not inexorably lead to criminal sexual conduct 
-13-

any more than an exasperated, angry comment inexorably results in a violent 

criminal assault.

* . . .* . . .*

[E]vidence of making unwanted sexual comments is not evidence of a propensity 

to commit violent rape. It simply cannot be the responsibility of the employer to 

determine with clairvoyant accuracy whether conduct of one sort might bear some 

relationship to conduct of a completely different sort. Rather, if an employee has 

not done or said anything that would afford a reasonable employer notice of a 

propensity to rape or commit some other type of criminal conduct, there is no 

sound legal or commonsense basis for the imposition of tort liability on an 

employer. [Brown, 478 Mich at 555, 563.]

Thus, because the employee’s rape of the plaintiff was not foreseeable, the defendant had no 

duty to prevent it. Id. at 556 (noting, “the lack of foreseeability of the harm in this case weighs 

definitively against imposing a duty on defendant”).

Although the record evidence clearly supports viable claims of liability against Young—

for which he has been defaulted—it does not create a genuine issue of material fact as to whether 

Young’s assault of plaintiffs was foreseeable for the purpose of imposing liability on defendants. 

Prior to hiring Young, Cogan conducted a criminal background check, contacted Young’s prior 

employer, verified his licensure, and had Young serve a probationary period at different clinics. 

There is no record evidence that anything discovered in this vetting process alerted Cogan to the 

foreseeability of a propensity to commit sexual misconduct on Young’s part.

Likewise, the record evidence does not support that Cogan was aware of inappropriate 

conduct or comments by Young, or that Young’s comments made foreseeable that he would 

sexually assault female patients. Cogan testified at his deposition that he received no complaints 

about Young’s treatments, and plaintiffs offer no evidence to refute his testimony. In fact, 

plaintiffs all admitted at their depositions that they never complained to Cogan or anyone at 

Health Quest about the treatment they received from Young. Cogan testified that the only 

complaint he received about Young was of his viewing scantily clad women on his computer, 

and that he responded by reprimanding Young and restricting his Internet access.

Plaintiffs’ contention that Cogan would have learned of Young’s activities had he 

fulfilled his supervisory obligation to review patients’ charts is unpersuasive. Plaintiffs speculate 

that said review would have led to further investigation, which in turn would have led to patient 

contact, which in turn would have led to actual knowledge of Young’s conduct. However, 

“parties opposing a motion for summary disposition must present more than conjecture and 

speculation to meet their burden of providing evidentiary proof establishing a genuine issue of 

material fact.” Libralter Plastics, Inc v Chubb Grp of Ins Cos, 199 Mich App 482, 486; 502 

NW2d 742 (1993). Also unpersuasive is the argument plaintiffs advance in their reply brief that, 

as a supervising chiropractor, Cogan had a non-delegable duty to supervise Young’s hands-on 

delivery of chiropractic treatment. The cases plaintiffs rely upon as authority are inapplicable to 

the instant case, as they involve physicians who were onsite and directly responsible for 

overseeing a medical procedure (e.g., an operation) or personnel (e.g., physician’s assistant) in 
-14-

the performance of a procedure. Cogan did not have a doctor-patient relationship with any of the 

plaintiffs, he practiced in Farmington Hills, hundreds of miles away from the Munising clinic, 

and plaintiffs offered no evidence or authority indicating that, as owner of the clinic, Cogan had 

hands-on supervisory responsibility for the chiropractic procedures that went on there.

Plaintiffs assert for the first time on appeal that the trial court should have imputed the 

knowledge of the assaulted employee-plaintiffs to Cogan because “[k]nowledge acquired by 

employees within the scope of their employment is imputed to the corporation.” Upjohn Co v 

New Hampshire Ins Co, 438 Mich 197, 213; 476 NW2d 392 (1991) (quotation marks and 

citation omitted). The three employee-plaintiffs worked at the clinic as a receptionist, a massage 

therapist, and an office assistant. None of them was operating “within the scope of her 

employment” when Young assaulted her during chiropractic treatments. Plaintiffs concede as 

much in their appellate brief when they admit that they entrusted themselves to Young and “were 

not capable of making professional chiropractic judgments about the validity of [Young’s] 

diagnosis and treatment.” Moreover, whatever knowledge they had acquired within the scope of 

their employment would not have been imputed to Cogan, but to the corporation for which they 

worked. Thus, plaintiffs “imputed knowledge” argument does not advance their efforts to 

impose a duty on Cogan to protect them from Young’s assaultive conduct.

5

Under Brown, the fact that Young was a poor record keeper, was viewing pictures of 

scantily clad women online, and made unprofessional remarks at work about his sex life and 

 5 Plaintiffs argue in the alternative that Cogan assumed a legal duty when he undertook a 

background check of Young and when he restricted Young’s Internet access. They provide no 

authority for the proposition that performing a background check on a potential employee is 

tantamount to assuming a legal duty, regardless of what the check revealed. They base their 

argument with respect to Cogan’s restriction of Young’s Internet access on the unsupported 

assumption that the purpose of the limitation was to “protect female patients and employees.” 

To “protect female patients and employees” does not necessarily mean to protect them from the 

unforeseeable harm of sexual assault. Plaintiffs provided no evidence to indicate that anyone at 

the clinic who was aware of Young’s viewing habits perceived them as evidence of a propensity 

to engage in criminal sexual conduct. Elsewhere, plaintiffs contend that Cogan’s inadequate 

response to Young’s viewing habits amounted to a “ratification of George Young’s assaults on, 

and inappropriate interaction with, female patients under [defendants’] care.” Ratification 

requires “knowledge of the material facts.” See Hutton v Roberts, 182 Mich App 153, 162; 451 

NW2d 536 (1989). Plaintiffs have offered no evidence establishing a genuine issue of material 

fact regarding whether Young’s Internet activities evinced a propensity to engage in sexual 

assault, let alone that Cogan was aware of the “material facts” of Young’s inappropriate touching 

of female patients. Because Young engaged in acts of inappropriate touching under the guise of 

their being legitimate chiropractic treatment maneuvers, it was not until he attempted to kiss one 

of his patients that any of the patients realized his actions were not performed for legitimate 

treatment purposes, wherein the information came to light. Cogan immediately suspended 

Young from seeing patients as soon as he learned that Young had been arrested and charged with 

assault.
-15-

sexual interests did not make it foreseeable that he would engage in criminal sexual conduct with 

his patients. Plaintiffs offered no evidence establishing a question of material fact as to the 

appropriateness of Cogan’s vetting process or that Young’s assaultive behavior was a foreseeable 

consequence of Cogan’s hiring, retention, and supervision of Young. Thus, the trial court did 

not err by dismissing plaintiffs’ claim against Cogan for negligent hiring, retention, and 

supervision of Young.

C. RESPONDEAT SUPERIOR

Plaintiffs next contend that the trial court erred in ruling that plaintiffs had failed to 

establish a genuine issue of material fact in support of any of their claims against defendants, but 

without specifically addressing their claims that Cogan and Health Quest were vicariously liable 

for Young’s tortious activity under the principles of respondeat superior. We detect no error in 

the trial court’s economy or its ruling.

The general rule under the doctrine of respondeat superior is that “an employer is not 

liable for the torts intentionally or recklessly committed by an employee when those torts are 

beyond the scope of the employer’s business.” Zsigo, 475 Mich 215, 221; 716 NW2d 220 

(2006). Plaintiffs assert that Young’s assaults occurred in the scope of his employment because 

they occurred while Young was doing what Cogan hired him to do: provide chiropractic 

diagnoses and treatment, including adjustments. Plaintiffs do not contend that Cogan’s 

assaultive conduct was acceptable chiropractic treatment, or that Cogan hired Young to touch 

patients sexually. Rather, they contend that defendants provided Young “with the ways and 

means to enable him to commit his wrongful touching of the Plaintiffs.” To the extent that 

plaintiffs are asserting that Young was somehow aided in his sexual misconduct by the existence 

of an agency relationship, their argument fails. Our Supreme Court explicitly rejected the aided 

by the agency exception to an employer’s general nonliability under the principles of respondeat 

superior in Zsigo.

In Zsigo, the plaintiff sought to hold the defendant medical center vicariously liable for 

assault, battery, and intentional infliction of emotional distress arising from a sexual assault 

committed by one of the defendant’s nursing assistants. Zsigo, 475 Mich at 218-219. The trial 

court denied the defendant’s motion for summary disposition, ruling that there was a question of 

fact regarding whether the nursing assistant’s agency relationship with the defendant aided the 

nursing assistant in committing the tortious acts against the plaintiff. Id. at 219. The matter went 

to trial. After the plaintiff’s case, the defendant moved for a directed verdict, “asserting that 

defendant could not be liable for the torts of an employee acting outside the scope of his 

employment.” Id. The plaintiff relied on Champion v Nation Wide Security Inc, 450 Mich 702, 

712 n 6; 545 NW2d 596 (1996), overruled in Hamed v Wayne County, 490 Mich 1; 803 NW2d 

237 (2011), to argue that the defendant “was liable under the ‘aided by the agency’ relationship 

exception to respondeat superior liability.”6 Zsigo, 475 Mich at 219. The trial court denied the 

 6 The aided by the agency exception to an employer’s general nonliability arises where “ ‘the 

servant purported to act or to speak on behalf of the principal and there was reliance upon 

apparent authority, or he was aided in accomplishing the tort by the existence of the agency 
-16-

defendant’s motion, the jury rendered a verdict for the plaintiff, and the trial court entered a 

judgment on the verdict. Id. at 219-220. The defendant appealed in this Court. In an 

unpublished decision, this Court reversed and remanded the case for entry of a judgment of 

dismissal on a ground other than that relevant here, id. at 220, after which the plaintiff 

successfully sought leave to appeal in our Supreme Court.

The issue before the Supreme Court was whether Michigan recognizes the aided by 

agency exception to the doctrine of respondeat superior liability. The Supreme Court clarified 

that it had not previously adopted the exception, and held that it declined to do so in the case 

before it. Id. at 218. The Zsigo Court concluded that the aided by the agency exception would 

swallow the rule of general nonliability and be tantamount to the imposition of strict liability on 

employers, explaining as follows:

Indeed, it is difficult to conceive of an instance when the exception would not 

apply because an employee, by virtue of his or her employment relationship with 

the employer is always “aided in accomplishing” the tort. Because the exception 

is not tied to the scope of employment but, rather, to the existence of the 

employment relation itself, the exception strays too far from the rule of 

respondeat superior employer nonliability. [Id. at 226.]

Plaintiffs concede that they disagree with the holding in Zsigo and attempt to distinguish 

their case to avoid it. They argue that, whereas the nursing assistant’s assaultive conduct far 

exceeded his assigned task of cleaning the treatment room where the plaintiff was left in 

restraints, Young’s misconduct “was not a gross deviation from the scope of normal medical 

contact with the patient.” Plaintiffs’ reliance on factual distinctions between the instant case and 

Zsigo is unavailing. Regardless of the facts elicited to argue that employees were aided by 

agency relationships to commit torts beyond the scope of their employment, the aided by the 

agency exception simply is not available to impose liability upon employers otherwise not liable 

under the doctrine of respondeat superior.7

In a supplemental brief, plaintiffs suggest that the mere fact that defendants published 

what plaintiffs describe as a letter of apology in the newspaper after authorities arrested and 

charged Young constitutes an acknowledgment that Young was their employee and that they 

 

relation.’ ” Zsigo v Hurley Med Ctr, 475 Mich 215, 221; 716 NW2d 220 (2006), quoting 1 

Restatement Agency, 2d, § 219(2).

7 Further, even if Michigan had adopted the exception, there is no record evidence that 

defendants knew about the assaults, let alone aided Young in committing them. At most, 

defendants presented Young with the opportunity for his misconduct through employment. See 

Salinas v Genesys Health Sys, 263 Mich App 315, 321; 688 NW2d 112 (2004). “This Court has 

held that an employee is not aided in accomplishing the tort by the existence of the agency 

relation, under the Restatement exception, just because of the mere fact that an employee’s 

employment situation may offer an opportunity for tortious activity. Id. (quotation marks and 

citation omitted).
-17-

were civilly responsible for his misconduct with patients. In support of their position they rely

on this Court’s recent decision, Nielson v Safeguard Properties, LLC, unpublished opinion per 

curiam of the Court of Appeals, issued November 9, 2017 (Docket No. 333244). Pursuant to 

MCR 7.215(C)(1), unpublished opinions “should not be cited for propositions of law for which 

there is published authority,” and if cited, the party “shall explain the reason for citing it and how 

it is relevant to the issues presented.” Plaintiffs argue that the existence of an apology letter in 

Nielsen makes the case and its legal analysis salient in this instance.8 

The relevant question in Nielson was whether defendant Safeguard could be held liable 

for the acts of independent contractors it hired to enter plaintiff Nielson’s home and “secure it.” 

Safeguard worked with mortgage companies to secure properties vacated following a 

mortgagor’s default. Nielson was in default on his mortgage. Although he complied with his 

bank’s written instructions to call and advise whether his home was occupied or vacant—Nielson 

was still living in the home—workers hired by Safeguard entered Nielsen’s home, “ ‘rummaged 

through’ Nielson’s belongings, emptied his refrigerator, helped themselves to some of his 

personal property, and let his cat out. They also ‘winterized’ the plumbing and locked him out of 

the house by attaching lock boxes on his doors.” Nielson, unpub op at 1. When Neilson returned 

home and could not get into his house, “his neighbor delivered a door tag that had been left with 

him. The tag advised that the workers found the home ‘vacant’ and therefore Safeguard, acting 

on behalf of Nielson’s mortgagee, ‘secured’ the property and added it to its ‘monthly 

maintenance schedule.’ ” Id. The notice provided a number to call in the event the home 

became “unsecure” or an emergency arose.” Id. 

When Nielson was finally able to get inside his home, he “found a letter explaining the 

mortgagee’s ‘right to inspect [the] property to verify occupancy and to determine whether 

securing the property is necessary.” Id. at 2.

The letter advised: 

Based on the initial inspection of the exterior of your home, it was 

determined that the property was vacant and in need of securing. 

As a result, the securing process was begun by changing a lock on 

one door to the home all other locks remain accessible as before. 

After gaining entry to the property, however, it was determined 

that the property was occupied. Therefore, no further work was 

performed, no items were removed and the home was locked.

The writer “sincerely apologize[d] for this inconvenience” and provided another 

number to call “so we can make immediate arrangements to rectify the matter.” 

[Nielson, unpub op at 2.]

 8 “Although unpublished opinions of this Court are not binding precedent, they may be 

considered instructive or persuasive.” Sau-Tuk Indus, Inc v Allegan Co, 316 Mich App 122, 137; 

892 NW2d 33 (2016). 
-18-

Nielson filed suit against Safeguard, alleging various statutory and common-law causes 

of action, including trespass to property, trespass to personal property, and conversion. Prior to 

the close of discovery, Safeguard moved for summary disposition, arguing with regard to the 

torts that it “used independent contractors, rather than employees, to secure Nielson’s property 

and could not be held liable for their wrongdoing.” Id. The trial court agreed and dismissed the 

tort counts along with the rest of Nielson’s complaint.

On appeal, Nielson challenged the trial court’s dismissal of his trespass and conversion 

claims. This Court determined that the trial court erred in dismissing the tort claims and 

concluded that the record supported imposition of liability on Safeguard under more than one 

agency theory, reasoning:

The evidence indicates that the workers did exactly what Safeguard told them to 

do: enter the home, change the locks, winterize the plumbing, and discard any 

food in the refrigerator. In this sense, the workers were apparently controlled by 

Safeguard. The property clearly was occupied rather than vacant; had the workers 

been able to exercise their own discretion, it seems obvious that they would not 

have thrown anything away, winterized the plumbing, or changed more than one 

lock. Further, the door tag prepared by Safeguard states that Safeguard was hired 

by the mortgage company to ‘maintain[] the property,’ to ‘secure’ it, and to place 

it on a ‘monthly maintenance schedule’: precisely the work that was performed. 

[Nielsen, unpub op at 15.]

The Court also referenced a “sign in sheet” posted in the home by Safeguard for Nielson 

to track all parties entering the property. The sheet requested notification at a certain telephone 

number should an emergency be discovered at the property; the telephone number was the same 

as the one listed on the apology letter Nielson found inside his home. All of the information left 

by the intruders identified them as Safeguard workers. Id. at 16. Under the circumstances 

presented, the Court concluded that the record evidence plausibly demonstrated that Safeguard 

directed that workers it hired would enter the home and secure it in the manner dictated by 

Safeguard. Id. at 17.

The instant case is clearly distinguishable from Nielson. The letter of apology in Nielson

was but one piece of evidence among many supporting the imposition of liability under an 

agency theory where Safeguard had argued that it was not responsible for the torts of the 

independent contractors. The record evidence in Nielson supported a finding that Safeguard 

ordered the independent contractors to perform the actions that served as the basis for Nielson’s 

tort allegations. Thus, the workers’ actions were foreseeable, arguably performed within the 

scope of their agency relationship, and Safeguard had actual knowledge of them. In the instant 

case, for reasons already stated, Young’s misconduct was not foreseeable and not within the 

scope of his employment. There is no record evidence that Cogan or Health Quest knew about 

Young’s inappropriate touching of patients until authorities arrested and charged him with 

assault, and there certainly is no record evidence that Cogan or Health Quest instructed Young to 

assault patients. Under the facts of this case, the mere existence of a letter of apology by Health 
-19-

Quest and Cogan, which was not part of the record in the trial court, cannot be a ground for the 

imposition of liability.9

Plaintiffs offered no evidence sufficient to raise a genuine issue of material fact regarding 

whether Young’s assaultive conduct was within the scope of his employment, and their apparent 

reliance on the aided-by-agency exception to the doctrine of respondent superior is unavailing

under Michigan law. Accordingly, the trial court did not err in dismissing plaintiffs’ vicarious 

liability claims against Cogan and Health Quest.

D. CLAIMS UNDER THE CRA

Plaintiffs also argue that the trial court erred in ruling that plaintiffs had failed to establish 

a genuine issue of material fact in support of “any of its claims” against defendants, without 

specifically addressing their public accommodations claims under the CRA. Once again, we find 

no error.

The CRA protects persons from discrimination in employment and public 

accommodations. MCL 37.2102(1); Cotton v Banks, 310 Mich App 104, 129; 872 NW2d 1 

(2011). To establish an employer’s liability under the CRA, plaintiffs must satisfy the elements 

of respondeat superior. Hamed v Wayne Co, 490 Mich 1, 10; 803 NW2d 237 (2011); Radtke v 

Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993). As our Supreme Court explained in 

Hamed: 

When the harassment was committed by an agent and the plaintiff is 

pursuing a civil rights claim against the principal, as in this case, a court must 

always “determine the extent of the employer’s vicarious liability . . . .” We 

require this analysis because the CRA specifically incorporates common-law 

agency principles. Thus, if a defendant is not vicariously liable for the acts of its 

agent under traditional principles of respondeat superior, the plaintiff’s claim 

under the CRA fails as a matter of law. [Hamed, 490 Mich at 10, quoting 

Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910 (2000) (emphasis 

added in Hamed).]

 9 Plaintiffs sought and received permission to file a supplemental brief regarding Nielsen and 

argued the significance of an apology letter in this case. Defendants filed a timely responsive 

brief to which they attached the letter at issue. Although defendants did not file a motion to 

expand the record to include the letter, given the significance plaintiffs attached to it in their 

supplemental brief as well as at oral argument, we considered it in the context of assessing

plaintiffs’ claim that it supports the imposition of liability. Contrary to plaintiffs’ 

characterization of the letter as one of “apology,” it reads more like the script of an infomercial 

and pitch for continued business after revelation of Young’s conduct than it does as an apology. 

The letter does not indicate that defendants had previously known of, or upon coming to light, 

assumed any responsibility for Young’s criminal conduct. We also note that issuing a letter of 

apology or public advisory notice in such circumstances should be viewed as a good thing, and 

that it may or may not reflect legal accountability by the author.
-20-

The CRA claims of the instant plaintiffs fail because, as explained above, they cannot 

establish defendants’ vicarious liability under the principles of respondeat superior. Hamed, 490 

Mich at 10. Their argument that Young’s acts were within the scope of his employment is 

contrary to Zsigo and Hamed, which recognized that sexual assaults are outside the scope of an 

employee’s employment unless the employer had notice of the employee’s propensity to commit 

sexual assault. Id. at 11; Zsigo, 475 Mich at 226-227, 231. As discussed above, plaintiffs 

presented no evidence establishing a genuine issue of material fact with regard to whether 

defendants had reason to anticipate Young’s criminal acts. Young’s background check did not 

raise any red flags, and, under Brown, Young’s inappropriate verbal and visual conduct was not 

sufficient to put defendants on notice of Young’s propensity to commit sexual assault. Brown, 

478 Mich at 447-448. Because plaintiffs cannot establish that defendant were “vicariously liable 

for the acts of [their] agent under traditional principles of respondeat superior,” plaintiffs’ claims 

under the CRA fail as a matter of law. Hamed, 490 Mich at 10.

Affirmed.

/s/ Peter D. O’Connell

/s/ Jane M. Beckering

/s/ Cynthia Diane Stephens