W. Doe v. Giddings

• Court: Delaware Superior Court
• Writing for the Court: DAVIS, J.
• Decision Date: 29 July 2014
• Docket Number: C.A. No.: N10C-08-178 EMD
• Citation: Doe v. Giddings, C.A. No.: N10C-08-178 EMD (Del. Super. Jul 29, 2014)
• Parties: JANE D. W. DOE, Plaintiff, v. TANYA D. GIDDINGS, Administrator of the Estate of JOSHUA GIDDINGS and the STATE OF DELAWARE, Defendants.

JANE D. W. DOE, Plaintiff, v. TANYA D. GIDDINGS, Administrator of the Estate of JOSHUA GIDDINGSand the STATE OF DELAWARE, Defendants.

C.A. No.: N10C-08-178 EMD

SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Submitted: July 24, 2014¹

July 29, 2014

Upon Defendant the State of Delaware's Motion for Summary Judgment GRANTED

Upon Plaintiff Jane D. W. Doe's Motion for Partial Summary Judgment DENIED

Edmund Lyons, Esquire, The Lyons Law Firm, Wilmington, Delaware, Attorney for Plaintiff Jane D.W. Doe.

Michael McTaggart, Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for Defendant State of Delaware.

DAVIS, J.

INTRODUCTION

This is a civil action for damages. Through this action, Plaintiff Jane D.W. Doe seeks entry of a judgment for special, general and punitive damages against Defendant Tanya D.Giddings, as administrator of the estate of Joshua Giddings, and Defendant State of Delaware (the "State").

This action arises out of the March 19, 2009 arrest of Ms. Doe by Joshua Giddings. At the time of Ms. Doe's arrest, Mr. Giddings was a Delaware State Trooper. Ms. Doe alleges that on that date, after being arrested on a misdemeanor charge, Trooper Giddings coerced her into performing oral sex on him in exchange for her release. Ms. Doe has filed this suit against the State based on a theory of respondeat superior for Trooper Giddings' purported intentional, reckless and malicious tortious conduct.

Now before the Court, is Defendant State of Delaware's Motion for Summary Judgment filed by the State (the "Summary Judgment Motion"), and the Motion for Partial Summary Judgment or Partial Adjudication Pursuant to Superior Court Civil Rule 56(a) filed by Ms. Doe (the "Partial Summary Judgment Motion"). For the reasons stated in this Opinion, the State's Summary Judgment Motion is GRANTED and Ms. Doe's Partial Judgment Motion is DENIED.

FACTUAL BACKGROUND

On March 19, 2009, a security employee at the JC Penny store in the Christiana Mall stopped Ms. Doe for shoplifting. At the time, Ms. Doe was subject to an outstanding capias. After about 45 minutes, Trooper Giddings arrived at the location and took Ms. Doe into custody. Trooper Giddings placed Ms. Doe in the rear of his police car and drove to several locations in the parking lot of the mall. Ms. Doe alleges that at the third location Trooper Giddings got out of the police car, opened the rear door and placed her hand on his genitals.

According to Ms. Doe, Trooper Giddings then drove to a remote area near the mall parking lot. Ms. Doe alleges that at that point, Trooper Giddings told Ms. Doe that he would lether go home if she did something for him in return. Ms. Doe alleges that Trooper Giddings said that if she did not accede to his demands, he would have to take her to court and she would have to spend the weekend in jail. Ms. Doe alleges that this coerced her into performing oral sex on Trooper Giddings in the front seat of the police car. Afterwards, Trooper Giddings drove Ms. Doe home and told her to turn herself in on the capias.

Ms. Doe later reported the incident to a Delaware State Police Sergeant. This Sergeant then investigated and eventually arrested Trooper Giddings on charges of sexual extortion (11 Del. C. § 776), receiving a bribe (11 Del. C. § 1203) and official misconduct (11 Del. C. § 1211). Shortly thereafter Trooper Giddings committed suicide.

On August 18, 2010, Ms. Doe filed a complaint in this Court, naming Trooper Giddings' estate and the State as defendants. Ms. Doe alleges that Trooper Giddings' conduct constituted assault, battery and rape. Ms. Doe seeks damages against the State, alleging that the Delaware State Police is an agency of the State and that Trooper Giddings was acting under his authority as a State Trooper. Ms. Doe seeks to hold the State liable for Trooper Giddings' conduct under principles of agency and/or the doctrine of respondeat superior.

PROCEDURAL HISTORY

On May 7, 2012, this Court granted summary judgment in favor of the State, holding that the State could not be held liable for Trooper Giddings' actions under a theory of respondeat superior. This Court reasoned that Trooper Giddings' conduct was not within the scope of his employment because sexually assaulting a criminal suspect is a clear abuse of authority and is not incident to the arrest or detention of the suspect.² However, this Court did not address theState's alternative argument that Ms. Doe's claims were barred by sovereign immunity when granting summary judgment.

On appeal, the Supreme Court of Delaware reversed. The Supreme Court determined that the relevant test was not whether Trooper Giddings' sexual assault was within the ordinary course of business of his employer.³ Rather, the Supreme Court noted that the relevant inquiry was whether Trooper Giddings was acting in the ordinary course of business during the time in which the sexual assault was committed.⁴ The Supreme Court did not address the State's arguments based on sovereign immunity on appeal as the arguments were not addressed by this Court.

On March 20, 2014, the State again moved for summary judgment arguing that sovereign immunity precluded Ms. Doe from bringing her claims. Afterward, Ms. Doe moved for partial summary judgment on the issue of liability arguing that she is entitled to summary judgment on the issue based on the undisputed facts of the case. This Court heard oral arguments on May 5, 2014 and reserved decision on both motions. Since oral arguments, the parties - on their own - have filed additional submissions with the Court. The Court received the most of these filings on July 24, 2014. The Court has considered all papers filed by the parties in arriving at this decision.

PARTIES' CONTENTIONS

THE SUMMARY JUDGMENT MOTION

In the Summary Judgment Motion, the State contends that the doctrine of sovereign immunity bars Ms. Doe's claims. The State argues that the Law Enforcement Agency/Officers Professional Liability Insurance policy (the "Policy) issued by Imperial Casualty and IndemnityCompany to the Department of Public Safety Division of State Police does not provide coverage for Ms. Doe's claims.⁵ Under 18 Del. C. § 6511, the State claims that sovereign immunity has not been waived due to a lack of insurance coverage. In support, the State points out that the Policy expressly excludes from coverage liability arising out of willful violations of penal codes. Therefore, the State maintains that it has not waived sovereign immunity as to Ms. Doe's claims because Ms. Doe's claims do not fall within the coverage provided by the Policy.

Ms. Doe contends that the State has in fact waived the defense of sovereign immunity through the insurance coverage under the Policy. Ms. Doe asserts that, as the Policy provides insurance coverage for Ms. Doe's claims, the State has consented to suit under 18 Del. C. § 6511. Ms. Doe thus claims that sovereign immunity has been waived. Further, Ms. Doe argues that under the exclusion provision relied upon by the State, there is an exception to the excluded coverage which applies to the State. As such, Ms. Doe argues that the exclusion provision does not deny coverage for Ms. Doe's claims and the State has therefore consented to suit through insurance coverage.

THE PARTIAL SUMMARY JUDGMENT MOTION

In the Partial Summary Judgment Motion, Ms. Doe contends that, based on the undisputed facts, Ms. Doe is entitled to summary judgment on the issue of liability. Ms. Doe argues that she has made out a claim for respondeat superior against the State because all four factors of scope of employment are satisfied. Ms. Doe also claims that an application for a warrant for Trooper Giddings for violation of 11 Del. C. §§ 776 ("Sexual Extortion - Perform an act which is calculated to harm another person") and 1203 ("Receiving a Bribe - Public Servant Benefit from Another for Violating Policy") constitutes an admission of a party opponent thatTrooper Giddings committed the alleged misconduct.⁶ Further, Ms. Doe maintains that the State's affirmative defense of sovereign immunity must fail as the liability arising out of Trooper Giddings' actions is covered by the State's Policy and sovereign immunity has therefore been waived.

The State opposes the Partial Summary Judgment Motion, arguing that the determination of whether the alleged conduct was within the scope of Trooper Giddings' employment is a question of fact for the jury. The State points out that the Supreme Court explicitly found that scope of employment was a jury question in the earlier appeal of this case. Therefore, the State maintains that Ms. Doe's contention that all the factors of scope of employment are satisfied as a matter of law is in direct contravention of the Supreme Court's decision on appeal. The State also contends that whether sexual misconduct on Trooper Giddings's part was foreseeable is also a question for the jury. Further, the State points out that it has a pending motion in limine regarding whether Trooper Giddings' arrest on the charge of sexual extortion should bar the State from arguing that Ms. Doe consented to any act of sex with Trooper Giddings.

STANDARD OF REVIEW

The standard of review on a motion for summary judgment is well-settled. The Court's principal function when considering a motion for summary judgment is to examine the record to determine whether genuine issues of material fact exist, "but not to decide such issues."⁷ Summary judgment will be granted if, after viewing the record in a light most favorable to a non-moving party, no genuine issues of material fact exist and the moving party is entitled tojudgment as a matter of law.⁸ If, however, the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record, then summary judgment will not be granted.⁹ The moving party bears the initial burden of demonstrating that the undisputed facts...