Sherman v. Del. Dep't of Pub. Safety
190 A.3d 148 (2018)
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Rule of Law:
An employer is vicariously liable for an on-duty police officer's sexual misconduct against an arrestee, even if the act is outside the traditional scope of employment, when the officer was aided in committing the tort by the agency relationship or when the employer had a non-delegable duty to protect the person in its custody. Further, an arrestee is incapable of giving voluntary consent to sexual acts with the arresting officer as a matter of law.
Facts:
- A security employee at a JC Penney store stopped Jane D.W. Doe for shoplifting and discovered she was subject to an outstanding capias.
- A Delaware State Police Officer arrived, took Doe into custody, and placed her in the back of his police car.
- The Officer told Doe that if she performed oral sex on him, he would let her go home and allow her to turn herself in on the capias the next day.
- The Officer threatened that if she refused, he would take her to court, where bail would be set and she would have to spend the weekend in jail.
- Under coercion from this threat, Doe performed oral sex on the Officer in the front seat of the police car.
- After the act, the Officer drove Doe to her home instead of processing her arrest as required.
- Doe subsequently reported the incident to the Delaware State Police.
- After being arrested on charges of sexual misconduct, bribery, and official misconduct stemming from the incident, the Officer killed himself.
Procedural Posture:
- Jane D.W. Doe sued the State of Delaware in the Superior Court (Delaware's trial court of general jurisdiction), claiming the State was vicariously liable for the Officer's torts.
- The Superior Court granted summary judgment for the State, finding the Officer's actions were outside the scope of employment under Restatement § 228.
- Doe, as appellant, appealed to the Delaware Supreme Court, which reversed the summary judgment in a decision known as 'Doe I', holding that key elements of the scope of employment test were questions of fact for a jury.
- On remand, the Superior Court again granted summary judgment for the State, this time on sovereign immunity grounds, and denied Doe's cross-motion for summary judgment.
- Doe, as appellant, appealed a second time to the Delaware Supreme Court, which in a decision known as 'Doe II' reversed on sovereign immunity but affirmed the denial of Doe's motion, citing the law of the case.
- The case proceeded to a jury trial in the Superior Court, where the jury found in favor of the State.
- Doe's motion for a new trial was denied by the Superior Court.
- Doe's estate, as appellant, appealed the judgment to the Delaware Supreme Court for a third time.
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Issue:
Under the doctrine of respondeat superior, is the State of Delaware liable for the sexual misconduct of an on-duty police officer against an arrestee when the act was for the officer's personal gratification, but the officer's position of authority enabled the tort?
Opinions:
Majority - Strine, C.J.
Yes. The State of Delaware is vicariously liable for the officer's sexual misconduct because, even though the act was outside the scope of employment under Restatement § 228, liability attaches under the exceptions for employer liability found in Restatement § 219. The court departs from the law of the case established in its prior rulings because adhering to them would produce an injustice. The court clarifies that under Restatement § 228's 'motivation prong,' the specific wrongful act itself must be motivated in part to serve the employer, which was not the case here. However, the court adopts Restatement § 219, which creates exceptions for acts outside the scope of employment. Liability attaches under § 219(2)(d) because the Officer 'was aided in accomplishing the tort by the existence of the agency relation'—he used his uniform, vehicle, and official authority to coerce Doe. Liability also attaches under § 219(2)(c) because the State owed a 'non-delegable duty' to safeguard Doe while she was in custody and deprived of her ability to protect herself. Finally, the court holds that as a matter of law, an arrestee cannot voluntarily consent to sex with an arresting officer due to the inherent power imbalance and the fact that resisting arrest is a crime.
Dissenting - Valihura, J.
No. The State should not be held liable, and the jury's verdict should be affirmed. The majority improperly disregards the law of the case doctrine after nearly eight years of litigation and two prior decisions by this Court. By adopting Restatement § 219 and creating a new non-delegable duty for law enforcement, the majority usurps the role of the General Assembly in making significant public policy decisions about tort liability. This judicial activism could lead to unbounded liability for public entities, with costs ultimately borne by taxpayers. The court should have applied Delaware's established respondeat superior test under § 228, which, as the majority concedes, would have resulted in a judgment for the State because the Officer was not motivated by a purpose to serve his employer.
Dissenting - Vaughn, J.
No. The judgment of the Superior Court should be affirmed. The trial court's jury instructions were correct statements of the law, and there was no error in refusing Doe's proposed instructions. The question of foreseeability under § 228 was a question of fact properly submitted to the jury, as there was evidence from which a reasonable jury could have concluded the act was not foreseeable. Likewise, the issue of consent was a question of fact for the jury, as the officer's statement created a factual dispute, and there is no statute or precedent in Delaware establishing that an arrestee is incapable of consent as a matter of law. The court should decline to adopt the broad exceptions of § 219, which could lead to unlimited employer liability and stray too far from the foundational principles of respondeat superior.
Analysis:
This decision significantly expands the scope of employer vicarious liability in Delaware by formally adopting the exceptions in Restatement (Second) of Agency § 219 for intentional torts. It establishes that the State can be held liable for sexual misconduct by police officers even when the acts are personally motivated and outside the traditional scope of employment. By creating a bright-line rule that arrestees cannot legally consent to sex with arresting officers, the court removes a potential defense for the State in such cases. The ruling effectively shifts the financial risk of such abuse of authority from the victim to the public employer, aiming to incentivize better hiring, training, and supervision of those entrusted with coercive state power.
