Sherman v. Del. Dep't of Pub. Safety

• Decision Date: 26 June 2018
• Docket Number: No. 206, 2017,206, 2017
• Citation: 190 A.3d 148
• Parties: James SHERMAN, et al., Plaintiff Below, Appellant, v. STATE of Delaware DEPARTMENT OF PUBLIC SAFETY, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

190 A.3d 148

James SHERMAN, et al., Plaintiff Below, Appellant,

v.STATE of Delaware DEPARTMENT OF PUBLIC SAFETY, Defendant Below, Appellee.

No. 206, 2017

Supreme Court of Delaware.

Submitted: April 6, 2018

Decided: June 26, 2018

Edmund Daniel Lyons, Jr., Esquire (argued), The Lyons Law Firm, Attorney for Appellant, James Sherman et al.

Lynn Kelly, Esquire (argued), Michael F. McTaggart, Esquire, Department of Justice, Wilmington, Delaware, Attorney for Appellee, State of Delaware.

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.

STRINE, Chief Justice, for the Majority:

I. Introduction

This is a difficult and unusual appeal, in the sense that the appellant's primary argument, when read closely, is not so much addressed to error on the part of the trial judge as to the prior rulings of this Court that put the trial court in the impossible position of framing jury instructions that required the jury to make findings of fact, when the only open issues were not ones of fact, but of law.

The awful facts of the case are, as one small blessing, unusual, too. The undisputed facts at the center of this case are that Jane D.W. Doe, the deceased plaintiff whose estate is the appellant, was validly arrested by a Delaware State Police Officer for shoplifting, and "was subject to an outstanding capias ."¹ Doe alleged that, rather than properly processing her arrest, the Officer instead told her that if she performed oral sex on him, he would take her home and she could just turn herself in on the capias the next day.² If she refused, he would "take her to court, where bail would be set, and ... she would have to spend the weekend in jail."³ The Officer originally denied that the oral sex occurred, but after DNA evidence of the oral sex was found on Doe's jacket, he claimed that he "didn't tell her [he] was going to do anything for her .... She just started coming on to [him] ... [and he] made the mistake of engaging in[ ] it."⁴ But the fact that the Officer received oral sex from Doe while she was under arrest is not disputed.⁵ And the State charged the Officer with crimes, including: i) "intentionally compel[ling] or induc[ing] [Doe] to engage in sexual penetration/intercourse;" and ii) "solicit[ing] a personal benefit from [Doe] for having violated his duty" to bring her in on her capias .⁶ Although the State seems to have eventually come to a somewhat different position in this civil case, as we shall discuss, to charge the Officer under either of these theories, the State would have needed to be confident that the Officer abused his authority over Doe to obtain sex from her in exchange for releasing her on her own recognizance.⁷

What is clearly disputed in this appeal is whether the jury verdict finding that the State of Delaware is not responsible in tort as the officer's employer for this misconduct should be affirmed. We agree with Doe that the jury verdict should be vacated, and we order that judgment be entered in Doe's favor on the issue of liability. But we do not do so because either the trial judge erred or the jury somehow did something wrong.

We do so because the jury was improperly asked to decide whether the employer of a police officer who received oral sex from an arrestee for his own personal gratification, and with no purpose to serve his employer, was acting within the scope of his employment. This question was submitted to the jury because this Court found in its initial decision (" Doe I ") that the jury should decide the issue.⁸ In a second decision (" Doe II "), we adhered to the law of the case and did not revisit that earlier ruling.⁹ In this decision, we admit that we erred in leaving this issue of law to the jury, and leaving the Superior Court in the impossible position of crafting sensible jury instructions to implement a mandate that was not well-thought-out.

The question of whether the State is liable as an employer for the Officer's sexual misconduct turns on these related questions of law, not fact:

Is § 228 of the Restatement (Second) of Agency's requirement that the employee's actions be motivated in part to serve the employer satisfied if the Officer's misconduct took place when he had made a valid arrest and was in the course of processing that arrest?

Or is that provision only satisfied if the specific tortious conduct that occurred during that period was itself motivated in part to serve the Officer's employer?

In Doe I , we all but held that the correct answer was the former, not the latter, but instead of holding that as a matter of law, we confusingly stated that the question of whether the Officer's conduct was in the scope of his employment should be left to the jury. And we directed the Superior Court to § 228 of the Restatement (Second) of Agency as the appropriate test for the jury to apply in doing so. But § 228 includes a Motivation Prong that requires the tortious conduct to be "actuated, at least in part, by a purpose to serve the master."¹⁰ So our ruling had the effect of directing the Superior Court to ask the jury whether the sexual misconduct was motivated in part by the Officer's desire to serve his employer, when that question could only be answered in the negative because Doe never argued that it was. For that reason, Doe argued in her first appeal to this Court that § 219 of the Restatement,¹¹ which is a complement to § 228, applied to relieve her of the obligation to show that the Officer's wrongful conduct was motivated by a desire to serve his employer. But we failed to address that part of Doe's argument.

In reaching our decision in this appeal, we admit that we depart from the law of the case. We do not do so lightly, but the doctrine of law of the case must give way when adhering to it would produce an injustice.¹² It is plain to us that our earlier failure to give more precise consideration to the specific questions of law presented by this case left the Superior Court and the parties without the ability to get a ruling on their dispute that took into account the precise arguments they were making. As important, we believe it is critical that in this sensitive area, we clarify the legal provisions that will apply if another case of this kind is filed.

Courts in other jurisdictions, like this Court in Doe I , have been tempted by the equities in the context of cases like this to stretch or even ignore the terms of § 228 to justify finding respondeat superior liability. In this case, for example, Doe I implied that the wrongful act itself need not be motivated in part by a desire to serve the employer, even though that is what § 228 and its commentary plainly require. But to provide clarity for other cases going forward, we refine our prior ruling in Doe I and hew to a reading of § 228's Motivation Prong that requires that the wrongful act must itself be motivated in part by a desire to serve the employer. We also clarify that § 228's Foreseeability Prong, requiring that, "if force is used, the use of force is not unexpectable," requires that the general risk of the wrongdoing, not the specific risk of the employee engaging in that conduct, be foreseeable.¹³

In this decision, we find that § 228, which has been adopted as Delaware law,¹⁴ should operate within the context of its Restatement counterpart, § 219, as the Restatement intends. Section 219 "enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment."¹⁵ When § 219's exceptions apply, an employer can be held responsible under respondeat superior even if § 228 is not satisfied. Two subsections of § 219 have potential applicability to cases like this: § 219(2)(d), which provides an exception to the scope of employment requirement in cases where the employee "was aided in accomplishing the tort by the existence of the agency relation," and § 219(2)(c), which does the same for cases in which the employee's "conduct violated a non-delegable duty of the master."¹⁶

Here we hold that, as a matter of law, if a police officer makes a valid arrest and then uses that leverage to obtain sex from his arrestee, his misconduct need not fall within the scope of his employment under § 228 to trigger his employer's liability.¹⁷ In so finding, we take into account the unique, coercive authority entrusted in our police under Delaware law, and the reality that when an arrestee is under an officer's authority, she cannot resist that authority without committing a crime. Because the Officer's position aided him in obtaining sexual favors—satisfying § 219(2)(d) —and the State owed a non-delegable duty to safeguard the arrestee from harm while she was under arrest—satisfying § 219(2)(c) —Doe does not have to satisfy § 228 for the State to be liable for the Officer's sexual misconduct.

We then address a question that arguably should not even be in the case. The State charged the Officer with two crimes that depended on the Officer having asked Doe for sex in exchange for her release—the antithesis of voluntary consent. Despite that, at trial, the State insisted that the judge leave the jury to decide whether Doe consented to the Officer's desire for sex.¹⁸ In this decision, we hold that an arrestee in Delaware is incapable of voluntary consent to sex with her arresting officer as a matter of law because she is prohibited from seeking to escape her arresting officer, even by peaceable means, at risk of criminal penalty. Thus, we hold that it was error to indulge the State's desire to defend itself on the ground that Doe freely chose to perform oral sex on her arresting officer.

We understand that this decision involves a question of how to allocate the risk of misconduct like this: to the employer or the victim. But this is a unique context in which victims face criminal liability even for peaceably resisting arrest,¹⁹ victims have a rational reason to fear that they will not be...