Doe v. Forrest, 02-184.

Citation853 A.2d 48
Decision Date07 May 2004
Docket NumberNo. 02-184.,02-184.
CourtUnited States State Supreme Court of Vermont
PartiesJane DOE v. Gary FORREST, Richard Forrest, Bennington County Sheriff's Department, County of Bennington and State of Vermont

David Putter, Montpelier, and Bradley Myerson, Manchester Center, for Plaintiff-Appellant.

Pietro J. Lynn and Heather E. Thomas of Lynn & Associates, P.C., Burlington, for Defendants-Appellees.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and GIBSON, J. (Ret.), Specially Assigned.


? 1. This case requires the Court to determine whether a sheriff can be held liable as the employer of a deputy who perpetrates intentional criminal misconduct while on duty. Plaintiff-victim was coerced into performing oral sex by then-Bennington County Deputy Sheriff Richard Forrest (Forrest). Forrest voluntarily pled nolo contendere to charges of lewd and lascivious behavior in violation of 13 V.S.A. ? 2601 and neglect of duty in violation of 13 V.S.A. ? 3006. Plaintiff subsequently filed a civil action against Forrest's employers, Bennington County Sheriff Gary Forrest (Sheriff Forrest) and Bennington County Sheriff's Department (collectively the defendants),1 asserting several claims of vicarious liability for the injuries she suffered as a result of Forrest's criminal conduct. Forrest was initially a named defendant, but plaintiff voluntarily dismissed him from the case because of his lack of assets. The Bennington Superior Court granted defendants' motion for summary judgment and dismissed plaintiff's claims. Plaintiff now appeals to this Court, alleging that the court improperly granted summary judgment for defendants on several theories of direct and vicarious liability. We hold that, on the record evidence, the trial court correctly ruled that defendants are not directly liable for Forrest's misconduct under 24 V.S.A. ? 309, and that summary judgment for defendants was proper on two of plaintiff's theories of vicarious liability. We also hold that there is sufficient evidence to withstand the summary judgment motion on plaintiff's theory of vicarious liability under Restatement (Second) of Agency ? 219(2)(d) (1958), and reverse and remand.

? 2. On December 21, 1997, plaintiff, then twenty years old, was working alone as a cashier at a convenience store in East Dorset, Vermont. Forrest, who was on duty and wearing his department-issued uniform, badge, gun, and handcuffs, entered the convenience store between 8:00 p.m. and 9:00 p.m. This was Forrest's third visit to the store since 6:30 p.m. that evening. Although this particular stop was not prompted by a specific request, Forrest routinely checked the store during his East Dorset patrol as part of his "community policing function," pursuant to a contract between the Bennington County Sheriff's Department and the Town of East Dorset. As such, he had become familiar with several of the store's employees and developed something of a personal relationship with plaintiff. During some of these routine checks, Forrest jokingly threatened to handcuff or ticket plaintiff. He also bragged about his exploits as a police officer and that he was trained to "shoot to kill." In the weeks preceding December 21, his routine checks at the store increased in frequency and duration, as he apparently became more personally interested in plaintiff.

? 3. When Forrest entered the store, plaintiff was on the telephone with her mother while attending to customers at the check-out counter. After those customers left the store, he took the telephone from plaintiff and jokingly told her mother, who was also an employee of the store, to stop harassing plaintiff. Forrest then hung up the telephone and began asking plaintiff questions that were sexual in nature. He turned the store's thermostat to ninety degrees and informed her that he had done so. As she was readjusting the thermostat, he took hold of her hair, which was in a ponytail, and used it to move her head in various directions. He told her that he liked women who wore their hair in a ponytail so that he could control them. He then put his arm around plaintiff, who said nothing, but moved away from him and returned to the check-out counter. ? 4. Forrest then selected an adult magazine from the store's magazine rack and showed plaintiff a picture of a woman performing fellatio. After a short conversation pertaining to the sexual act depicted in the magazine, he began to maneuver her into a secluded area of the store, where he coerced her to perform oral sex. He also kissed and fondled her breasts. After approximately fifteen minutes, she moved away from Forrest, who departed soon thereafter. She then telephoned for help. Forrest did not during the sexual assault unholster his weapon or handcuffs, nor did he threaten to use either instrument on plaintiff.

? 5. As a result of the incident, Forrest resigned from the Sheriff's Department. Following an investigation by the Vermont State Police, he was charged with, and voluntarily pled nolo contendere to, a criminal charge of lewd and lascivious behavior for exposing and "causing his penis to contact the mouth of [plaintiff] in violation of 13 V.S.A. ? 2601." He also pled nolo contendere to a charge of neglect of duty for engaging in "open and gross lewd and lascivious conduct with [plaintiff] while assigned to patrol duty in violation of 13 V.S.A. ? 3006." He was sentenced to three-to-five-years' imprisonment, all suspended, and was placed on probation and ordered to have no contact with plaintiff or her family.

? 6. Plaintiff filed suit against defendants, alleging various state and federal claims and seeking monetary damages for injuries she suffered as a result of Forrest's conduct. After plaintiff voluntarily dismissed all federal claims, defendants moved to dismiss her state law claims, arguing that an employee's intentional sexual misconduct could not be imputed to an employer because such conduct is beyond the scope of employment. Finding further discovery warranted, the trial court denied defendants' motion to dismiss.

? 7. After approximately two years of discovery, defendants moved for summary judgment, reasserting their argument that Forrest's misconduct was not within the scope of his employment; that no theory of vicarious liability recognized in Vermont would impute Forrest's conduct to defendants; and that there was no evidence to indicate that Sheriff Forrest had negligently trained Deputy Forrest, or that Sheriff Forrest knew or should have known that Deputy Forrest had a propensity to assault women.

? 8. Following a hearing, the court granted defendants' motion. The court found that 24 V.S.A. ? 309, which plaintiff asserted was a basis for liability, was not applicable; that based on the undisputed material facts defendants were not vicariously liable under the doctrine of respondeat superior or alternative theories of liability under the Restatement (Second) of Agency ? 219(2)(d); and that there was no evidence indicating defendants had negligently supervised Forrest. The court then entered judgment in favor of defendants. This appeal followed.

? 9. Our review of summary judgment is de novo, and in proceeding with that review, this Court applies the same standard as the trial court. Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 344, 816 A.2d 448, 452 (2002). We will affirm summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ... show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." V.R.C.P. 56(c)(3); King v. Gorczyk, 2003 VT 34, ? 7, 175 Vt. 220, 825 A.2d 16. In applying this standard, we give the nonmoving party the benefit of all reasonable doubts and inferences. King, 2003 VT 34, at ? 7, 825 A.2d 16. Summary judgment is required when, after adequate time for discovery, a party fails to make a showing sufficient to establish the existence of an element essential to her case upon which she has the burden of proof. Poplaski v. Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326, 1329 (1989). Plaintiff asserts several arguments on appeal in support of her contention that the trial court erred in granting defendants' motion for summary judgment. Plaintiff argues that: (1) defendants are directly liable for Forrest's misconduct pursuant to 24 V.S.A. ? 309 because Forrest neglected his duty when he failed to arrest himself for his own sexual misconduct; (2) Forrest's intentional criminal act was within the scope of his employment, even though that conduct was contrary to the wishes and/or instructions of defendants; and (3) defendants are vicariously liable under the Restatement (Second) of Agency ? 219(2)(d) even if Forrest's acts were outside the scope of his employment. We address each of plaintiff's arguments in turn.

I. Direct Liability Under 24 V.S.A. ? 309

? 10. Plaintiff alleges that Sheriff Forrest is directly liable for Deputy Forrest's misconduct under 24 V.S.A. ? 309, and that the trial court failed to accord proper weight to Forrest's neglect-of-duty conviction when assessing defendants' liability under ? 309. Section 309 provides that:

A sheriff shall be liable for the official acts and neglects of his deputies, and may take bonds of indemnity from them. Such deputies may, and when required, shall perform any official duty which may be required of the sheriff. Returns of their acts and doings shall be signed by them as deputy sheriffs, and their official acts shall be deemed to be the acts of the sheriff.

(emphasis added). Traditionally, ? 309 and the statutes upon which the current version is based have been applied to hold sheriffs liable for their deputies' negligent or malfeasant execution of writs. See Lyman v. Holmes, 88 Vt. 431, 432, 92 A. 829, 830 (1915) (sheriff liable for deputy's malfeasant seizure of property on writ...

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