Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sherman v. State, Department of Public Safety

Supreme Court of Delaware

June 26, 2018

JAMES SHERMAN, et al., Plaintiff Below, Appellant,
v.
STATE OF DELAWARE DEPARTMENT OF PUBLIC SAFETY, Defendant Below, Appellee.

          Submitted: April 6, 2018

          Court Below: Superior Court of the State of Delaware C.A. No. 61290375

         Upon appeal from the Superior Court. REVERSED and REMANDED.

          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

         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 believed if they refuse an officer's wrongful threat and report it to the judiciary or police authorities, and the employing agency is best positioned to put in place policies to diminish the risk of cases like this occurring. As such, where the provisions of § 219 provide for respondeat superior liability, we believe it is sensible to embrace § 219 and hold the State responsible for its officers' commissions of wrongful torts like this while in the course of making and processing valid arrests.

         For these reasons, we vacate the jury verdict in this case and remand for entry of a judgment in Doe's favor on the issue of liability, with a jury trial to follow on the issue of damages.

         II. Facts and Procedural History

As we summarized the facts of the case in Doe I:
On March 19, 2009, a security employee at the JC Penney store in the Christiana Mall stopped Jane D.W. Doe for shoplifting. Doe had been arrested before, and she was subject to an outstanding capias. After about 45 minutes, [a] Delaware State Police Officer . . . arrived at the store and took Doe into custody. He placed her in the rear of his police car and drove to several locations in the mall parking lot. Doe alleges that, at the third location, [the Officer] stopped, got out of the police car, opened the rear door, and placed Doe's hands on his genitals.
According to Doe, [the Officer] then drove to a remote area where he told her that he would let her go home if she did something in return. [The Officer] allegedly told Doe that, unless she acceded to his demands, he would take her to court, where bail would be set, and that she would have to spend the weekend in jail. The prospect of jail allegedly coerced Doe to perform oral sex on [the Officer] in the front seat of the police car. Afterwards, [the Officer] drove Doe home and told her to turn herself in on the capias. Doe reported the incident to Delaware State Police Sergeant Maher, who investigated and eventually arrested [the Officer] on charges of sexual misconduct, bribery and official misconduct. [The Officer] killed himself shortly after his arrest.[20]

         Doe died in January 2015, and her estate's administrator was substituted as the plaintiff.[21]

         As these facts make plain, this case could not be sadder. Both Doe and the Officer are dead, and the fact record of what happened between them on March 19, 2009 consists of the statements they made before their deaths, plus the physical evidence that makes certain that Doe was telling the truth when she said that the oral sex occurred. Given the painful nature of this case and the fact that the alleged wrongdoer has already suffered the ultimate penalty of self-inflicted death, we feel it is more empathetic to refer to both the plaintiff and defendant by pseudonyms reflecting their roles in the case. Therefore, we refer to the defendant police officer who arrested Doe as the "Officer."

         The issues on appeal flow out of the confusion the trial court and the parties experienced because of the lack of clarity in Doe I and Doe II regarding the Motivation and Foreseeability Prongs of § 228, the applicability of § 219's exceptions, and the question of whether an arrestee may ever consent to sex with her arresting officer. To understand this appeal and why it takes the form it does, we start by discussing the Superior Court's initial ruling on the State's first motion for summary judgment.[22]

         A. The Superior Court's First Opinion

         In her complaint, Doe's theory of the case was simple. She alleged that the Officer arrested her for shoplifting.[23] He then told her that, if she performed oral sex on him, he would release her on her own recognizance and allow her to turn herself in on her outstanding capias the next day. If she refused, he would take her to court "where she would likely be remanded for failure to make bail and she would spend the weekend in jail."[24] Doe did not allege that the Officer's desire for oral sex was motivated in any part by his duties to the State Police or the State itself. To the contrary, Doe's complaint alleged that the Officer's acts "were done in bad faith, with no belief that the public interest would be served thereby," and constituted assault, "intentionally and without [her] consent, [] caus[ing] [her] to be in fear of an immediate harmful or offensive contact," and battery, "intentionally and without [her] consent, [] mak[ing] contact in a harmful or offensive way."[25]

         In its first motion for summary judgment, the State argued that the facts Doe pled-that the Officer sought sexual favors from her in exchange for releasing her on her own recognizance-failed to satisfy the scope-of-employment test that our law uses to assess whether respondeat superior liability applies to an employer.[26]That test, from § 228 of the Restatement, provides that:

Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs within the authorized time and space limits;
(c) it is activated, in part at least, by a purpose to serve the master; and
(d) if force is used, the use of force is not unexpectable.[27]

         The State's position on the motion was straightforward. It argued that the Officer was not employed to receive oral sex, and that there was no way in which the Officer's receipt of oral sex from Doe was motivated by a desire to serve the interests of his employer, the State.[28] Thus, the State argued that, as a matter of law, Doe could not satisfy the requirements of the § 228 test because the sexual misconduct was not "motivated in part at least to serve the master"-thus failing the Motivation Prong-and the "force used in committing the rape was unexpected by the master"-thus failing the Foreseeability Prong.[29]

         In response, Doe argued that because the Officer's wrongful conduct occurred in the course of a valid arrest and the Officer used his official authority to coerce her into performing oral sex on him, the State should be responsible. Doe cited mixed-motive cases under the Motivation Prong of § 228: cases presenting a fact question about whether the wrongful act (e.g., the use of excessive force by a police officer or a security guard) was motivated in part by a desire to do one's job (e.g., to secure an arrest or to keep a trespasser out). But, Doe never made a case-specific argument that the Officer's demand that she provide him with oral sex in exchange for a release on her own recognizance was motivated by anything other than a desire for his own gratification.

         Doe made an important argument about why that did not matter. She pointed to another section of the Restatement that is designed to provide exceptions to § 228, § 219. Section 219 says:

(1) A master is subject to liability for the torts of his servants committed while acting in the scope of employment.
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) 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 relation.[30]

         In particular, citing § 219(2)(d), Doe argued that "if an employee uses a position or power afforded by the employment relationship to commit a tort the employer is vicariously liable," and that the Officer in this case "committed the acts charged by abusing his power as a State Officer to arrest and hold [Doe] in custody."[31]

         Section 219 is important because if the exceptions it articulates apply, it exempts a plaintiff from having to prove under § 228 that the tort occurred within the scope of employment. In resolving the motion in favor of the State, the Superior Court held as a matter of law that Doe's claim failed to establish the State's liability under § 228. The Superior Court held that two grounds were fatal to Doe's claim: i) the lack of any material dispute of fact, indeed lack of any argument by Doe, that the Officer's misconduct was motivated in any way by an intent to serve the State and thus § 228's Motivation Prong was not satisfied;[32] and ii) the Superior Court's view that the Officer's conduct was so outrageous and unusual that it was, as a matter of law, unforeseeable, and thus § 228's Foreseeability Prong was also not satisfied.[33]And, citing the lack of Delaware precedent applying § 219 of the Restatement, the Superior Court refused to apply § 219 to relieve Doe of the obligation to satisfy § 228.[34]

         B. This Court's First Opinion

         After the Superior Court dismissed her case on summary judgment, Doe took an appeal centered on the same arguments that were presented in the summary judgment proceeding below. In her appeal, Doe argued that the first three prongs of § 228 were satisfied as a matter of law because they pertain to the "general duties undertaken by the assailant at the time," and the Officer's misconduct "took place in exercising the State sanctioned power of arrest, at an authorized time and place, and was (until the misconduct) intended to serve the State." [35]

         As to § 228's Foreseeability Prong, Doe argued that "[r]are outrageous behavior can still be within the scope of employment so long as not unexpectable and occurring in the context of otherwise authorized acts."[36] To support her argument that the Officer's misconduct was not unexpectable, Doe cited allegations of "State Troopers commit[ing] unauthorized and wrongful acts during the execution of their duties, including one rape, and multiple assaults," as well as one instance in which a "Lewes police officer pled guilty to on duty unlawful sexual intercourse with a woman in custody."[37] And Doe cited to other jurisdictions' holdings that police sexual misconduct was "reasonably foreseeable, "[38] and could fall within the scope of employment.[39]

         Doe also argued in the alternative that the exception in § 219(2)(d) for cases in which the employee's position aids him in accomplishing the tort indicated that the State could be held liable regardless of whether the Officer's misconduct fell within the scope of employment. She cited the Vermont Supreme Court's application of § 219(2)(d) in finding that the "position and powers of a police officer who intimidated [a] [p]laintiff into [a] sexual act could support [a] finding of vicarious liability."[40]

         Our opinion in the appeal was terse. We found that, as a matter of law, Doe had satisfied § 228's first two prongs:

[The Officer] was in uniform, on-duty, carrying out a police duty by transporting [Doe] to court. The sexual assault took place in the police car, during the time that [the Officer] was supposed to be carrying out police duties. These facts would satisfy the first two factors under the Restatement-[the Officer] was doing the kind of work he was employed to perform, and he was acting within authorized time and space limits.[41]

         As to § 228's Motivation and Foreseeability Prongs, this Court reversed the Superior Court's ruling that, as a matter of law, Doe had failed to provide evidence raising a material issue of fact for resolution by jury trial. But we did not hold that Doe had established those remaining elements as a matter of law. Instead, we held that she was entitled to have a jury decide whether those prongs were satisfied.

         It was this aspect of Doe I that sowed the seeds of future confusion. In particular, our ruling as to the requirement under § 228's Motivation Prong that the Officer's sexual misconduct must be motivated in part by a desire to serve his employer is what has vexed the Superior Court ever since.

         Despite the reality that Doe never contended that the Officer sought oral sex for any reason other than self-gratification-i.e., Doe never argued that the Officer had any partial motivation to obtain oral sex to aid the Delaware State Police or the people of Delaware-this Court held that Doe was entitled to have a jury decide the question of whether the Officer had such a motivation. Our reasoning-which referenced Draper v. Olivere, [42] a case in which a heavy equipment operator's assault on a motorist intruding into a construction area was found to fall within the scope of his employment-was this in full:

The third factor-whether [the Officer] was activated in part to serve his employer-has been construed broadly as a matter for the jury to decide. If the act of cutting someone's throat can be considered a service to the employer paving company on the theory that the employee was controlling traffic, then a sexual assault can be considered a service to the police on the theory that part of what [the Officer] was doing was transporting a prisoner.[43]

         The problem with this reasoning, as we will highlight further, is that we did not ground our reference to Draper in a mixed-motive analogy that could fit the facts of this case. However odd it might seem that stabbing someone might be motivated in part by a desire to serve one's employer, that is not so far-fetched if the person who did the stabbing was a heavy equipment operator charged with keeping an area free from trespassers and the person stabbed was a motorist trespassing into an area the operator was expected to guard.[44] Draper is a mixed-motive case where the wrongful act itself could be fairly argued to have been "motivated in part" by a desire to stop the trespass and serve the employer.

         Draper is the kind of a case for which the Motivation Prong of § 228 exists. The Motivation Prong's key role is to deal with cases in which it is possible that an employee has taken a wrongful action that advances his employer's goals but that employee also has a personal motivation to take that action.[45] Cases involving force are still beans for § 228's grinder because there are jobs, including those of police officers and security guards, where force must sometimes be used, and where there is a possibility of a mixed motive, such as where an officer has a legitimate reason to use a certain amount of force to arrest an offender, but gives him a lagniappe of extra oomph because he has a prior history with the offender and does not like him.[46]But, as to the wrongful conduct the Officer in this case was alleged to have committed, there was no evidence at all of mixed motivation. Doe did not allege that the Officer was partially motivated to gratify himself by a desire to serve the State.

         Our decision in Doe I was, of course, correct to say that if there is evidence in light of which rational minds could disagree about whether the employee's misconduct was motivated in part by a desire to serve his employer, then the question of whether the Motivation Prong of § 228 is satisfied is one for the jury to resolve. But, to the extent that we implied that § 228's scope-of-employment test should always go to a jury, even if there is no issue of fact for the jury to determine, that implication is not only at odds with the Restatement itself, [47] it is also at odds with Doe I's decision that § 228's first two prongs, based on the undisputed facts, were satisfied as a matter of law.

         On the Foreseeability Prong, which evaluates whether the degree of force the tortfeasor used was "not unexpectable, "[48] we held in Doe I that the jury should decide that question, stating in full our reasoning as follows:

Finally, to be within the scope of employment, any force used must be "not unexpectable." Several other jurisdictions have noted that sexual assaults by police officers and others in positions of authority are foreseeable risks. The record does not establish the [Officer's] conduct was unforeseeable.[49]

         In so deciding, we did not give any guidance about whether foreseeability was to be determined in a general way, requiring that Doe show that there was a recognized history of police officers abusing their authority over arrestees to obtain sexual favors, or in the specific way, requiring her to show that the State had some basis to foresee that the Officer whose conduct is the focus of this case would misuse his authority for his own sexual gratification. But again, it is not clear that there was any dispute of fact on this point.

         We finished our decision in Doe I by remanding to the Superior Court so that it could present § 228's Motivation and Foreseeability Prongs to the jury. We did not reach or even mention Doe's argument that § 219(2)(d) applied in this case and exempted her from the need to show that the Officer's misconduct fell within the scope of his employment. Although Doe argued this issue fairly and it remained relevant to the outcome of the case, we did not address it at all.

         C. The Superior Court's Second Opinion

         On remand from Doe I, the State asserted a sovereign immunity defense. The sovereign immunity defense provides that "neither the State nor a State agency can be sued without its consent."[50] But it is waived "as to any risk or loss covered by the state insurance program."[51] The State moved for summary judgment, arguing that Doe's claims were "excluded [from] coverage under the terms of the Department of Public Safety Division of State Police self-insurance plan and therefore not subject to a waiver of sovereign immunity."[52] The Officer's estate also brought a motion to dismiss, arguing that Doe's complaint against the estate was time-barred.[53]

         Doe defended these motions and sought partial summary judgment on the issue of liability. Doe argued that Doe I found not only that the first two prongs of § 228 could be and were satisfied as a matter of law, but so too was the Motivation Prong:

In addressing the issue of whether [the Officer] "was activated in part to serve his employer" the Supreme Court observed that "a sexual assault can be considered a service to the police on a theory that part of what [the Officer] was doing was transporting a prisoner." That is this case.[54]

         Doe also argued that the Foreseeability Prong was satisfied as a matter of law, citing former Delaware State Police Superintendent Thomas MacLeish's testimony that "there is a risk in police work that a small minority of police officers will engage in sexual assault or similar misconduct involving detainees in their custody," and the fact that the State Police "train[ed] against and h[ad] procedures to protect against such misconduct."[55] Doe again pointed to allegations of "individual State Troopers commit[ing] unauthorized and wrongful acts during execution of their duties, including one rape, and multiple assaults."[56] Whether because Doe I ignored her argument as to the applicability of § 219 and therefore left the Superior Court's earlier rejection in place or for another reason, Doe did not rely on § 219 in arguing her motion, but focused solely on Doe I and § 228.

         Doe suffered a loss on all the motions. The Superior Court granted the State's motion for summary judgment, finding that the State's insurance policy did not provide coverage for Doe's claims and that the defense of sovereign immunity was therefore not waived.[57] The Superior Court also granted the Officer's estate's motion to dismiss Doe's claims against the estate because they were time-barred.[58]The Superior Court denied Doe's motion for summary judgment on the issue of liability, noting that "[b]ased on the Supreme Court's findings on appeal [in Doe I], both [§ 228's Motivation and Foreseeability Prongs] remain matters for the jury to decide."[59]

         D. This Court's Second Opinion

         Doe then took her second appeal, contesting the rulings below, and in Doe II, this Court again got to consider the case. On appeal, the major emphasis of the parties was on the State's assertion of sovereign immunity and the Officer's estate's assertion that Doe's claims against it were time-barred. But, in fairness, Doe sought to have us re-examine our decision in Doe I that § 228's Motivation and Foreseeability prongs presented questions for the jury, again arguing that the "undisputed facts compel[led] application of the doctrine of respondeat superior as a matter of law."[60]

         But Doe did not remind us that we failed to address the § 219 issue that was fairly raised in the first appeal but never ruled upon. Instead, Doe argued about § 228's Motivation and Foreseeability Prongs. That was understandable, of course, because Doe I ignored Doe's § 219 argument, asserted that § 228 was the appropriate test for determining liability in this case, and stated that it only mattered "whether the service itself in which the tortious act was done was within the ordinary course of such business."[61]

         In pressing her arguments in Doe II, Doe relied on the part of Doe I that implied that she had no obligation to show that the Officer was motivated by his official duties in seeking oral sex. Doe's brief argued that it was undisputed that the oral sex occurred during a time period when the Officer was processing Doe's arrest and transporting her to court, [62] and that, as a matter of law, the Motivation Prong was satisfied under Doe I's statement that "a sexual assault can be considered a service to the police on the theory that part of what [the Officer] was doing was transporting a prisoner."[63]

         Importantly, Doe also argued that § 228's Motivation Prong should not be submitted to the jury when the facts regarding its applicability are uncontested. To this point, Doe argued to us that:

[Section 228's Motivation Prong] "has been broadly construed as a matter for the jury to decide." But that does not mean that this issue must go to jury if the facts are truly uncontested. . . . We believe that this Court's language in its opinion ("[a] sexual assault can be considered a service to the police on the theory that part of what [the Officer] was doing was transporting a prisoner") should be read "[would satisfy] the requirement of a service to the police." . . . Transporting a prisoner either is or isn't a service to the police. It's what the police do following an arrest. . . .
If it is undisputed that [the Officer] acted as alleged in the course of arresting and transporting [Doe], but this issue (of service to the master) is submitted to the jury, how could any reasonable jury find against [Doe] in light of this [r]ecord and this Court's [o]pinion? Just how would a trial [j]udge instruct the jury in this case?[64]

         Doe also argued that the applicability of § 228's Foreseeability Prong was an issue for this Court to resolve as a matter of law, because there was not a dispute of fact between the parties.[65] Rather, Doe asserted that the parties only disagreed about whether the Foreseeability Prong was satisfied.

         Doe contended the Officer's sexual misconduct was foreseeable in the sense that it was foreseeable that a police officer might misuse his authority over an arrestee to procure sexual favors and that the only issue to be resolved was a legal one.[66] And if § 228's Foreseeability Prong was satisfied by a showing of general foreseeability, Doe argued she was entitled to a ruling as a matter of law in her favor on that prong. By contrast, if § 228 required specific foreseeability focused on the Officer, as the State suggested, Doe admitted she had no evidence that he posed a specific risk, and if, as she did not believe was the case, foreseeability of that specific kind was required, then the State was entitled to a ruling in its favor.[67] Doe asked us to resolve the underlying legal question based on the undisputed facts.

         In our decision in Doe II, we focused almost entirely on the sovereign immunity and timeliness issues. We found for Doe on the sovereign immunity issue, clearing that obstacle to her recovery against the State, and we upheld the Superior Court's ruling that Doe's claim against the Officer's estate was time-barred.[68]

         We said nothing about the merits of Doe's extensive argument that she was entitled to summary judgment on § 228's Motivation and Foreseeability Prongs. Instead, we relied on the law of the case doctrine and indicated that Doe I said that the question of whether § 228's Motivation and Foreseeability Prongs were satisfied was for the jury to decide. We did not focus at all on whether there was any triable issue of fact as to whether the Officer's misconduct was motivated in part by a desire to serve his employer. And we did not discuss the issue of whether general foreseeability was enough to satisfy § 228's Foreseeability Prong, or whether specific foreseeability was required.

         E. Jury Trial and Motion for New Trial

         After our decision, the Superior Court held a trial and was required to turn our decisions into sensible instructions for the jury. The reason why the parties and the Superior Court struggled in fashioning jury instructions on the issue is simple: the parties' difference of opinion did not involve issues of fact for the jury to resolve. Doe did not allege that the Officer was motivated by his official responsibilities to the State to seek oral sex from her. And, for its part, the State did not argue that the oral sex occurred outside the period when the Officer had Doe in his custody and under valid arrest. In other words, there was no fact question about § 228's Motivation Prong for the jury to resolve.

         But because our prior decisions gave no guidance, the Superior Court's instruction was just a rote reiteration of the § 228 test for scope of employment, and did not frame a case-specific fact question for the jury to resolve. The Superior Court's jury instruction was:

[I]f you find that [the Officer] committed the wrongful act, then you must next determine whether [the Officer] was acting in the ordinary course of employment during the time frame within which the wrongful act was committed. The relevant test is not whether the wrongful conduct was authorized by the State, but whether the service itself was within the scope of employment and, thus, within the ordinary course of the State's business.
[The Officer] was acting within the scope of his employment if, and only if, you find all of the following by a preponderance of the evidence:
1. The conduct was of a type that [the Officer] was hired to perform;
2. The conduct occurred substantially within the authorized time and space limits of his work;
3. The conduct was motivated, at least in part, by an intent to serve his employer, on this factor, even if [the Officer] was motivated in part by a personal desire to commit the wrongful act, his conduct may still be attributed to the State where his conduct was also motivated by a desire to serve the defendant.
AND
4. If force was used, the use of force was not unexpectable; i.e. the force was reasonably foreseeable.

         However, [the Officer's] conduct was not within the scope of his employment if his conduct was:

I. Different in kind from what was authorized by his employer;
II. Far beyond the authorized time or space limits of his employment;
III. Too little motivated by an intent to serve his employer;
OR
IV. Involved force that was not reasonably foreseeable.[69]

         What the jury was supposed to decide was left ambiguous, because the Superior Court received no definitive guidance from this Court about whether the Motivation Prong could only be satisfied if the oral sex itself was motivated in part by the Officer's desire to serve the State.

         At the prayer conference, Doe requested that the Motivation Prong of the § 228 instruction specify that it was the Officer's general conduct of arresting and transporting Doe, and not the oral sex, that needed to be motivated by a desire to serve the State. Doe argued that "of course [the oral sex] was not authorized, of course it is not a benefit to the State. If that is the test, we might [a]s well just leave. That is not the test, because an intentional tort-this intentional tort will never be of service to the State."[70]

         The Superior Court rejected Doe's request to edit the instruction, despite acknowledging that it is "common sense to say that the sexual act itself was obviously not within the scope of his employment."[71] Citing Doe I, the Superior Court reasoned that its hands were tied as to what instruction it could give:

If the Supreme Court is indicating that that particular act can be looked at, and the jury has to make its determination about whether this fits within those four factors, that is all I can do is just instruct them as to what the four factors are. That is what I am going to do.[72]

         The Superior Court also denied Doe's request to instruct the jury that the Foreseeability Prong is satisfied by showing "a general problem, anywhere in the country, anywhere within police work, and not limited to the Delaware State Police."[73] Doe proposed the following instruction:

In this case, Colonel MacLeish, the former head of the Delaware State Police in 2009, testified. If you find that Colonel MacLeish was aware of a general problem within law enforcement that some police officers had sexually assaulted people in their custody then it was not completely unforeseeable to the State that such wrongful conduct could occur.
The general problem of sexual abuse by arresting police officers does not have to have involved the State Police or any police in Delaware- it is enough if on a nationwide basis there was a general problem. Also, the problem did not have to involve a majority of police officers, it is enough if it were a very small number of officers.[74]

         Despite recognizing that the "particular injury suffered does not have to be foreseeable," and that the question is not whether it was "foreseeable that he, meaning [the] Officer [], would do this, but only that this risk existed, "[75] the Superior Court rejected Doe's proposed instruction and instructed the jury on that issue in this more generic way:

A foreseeable act is one that an ordinary person, under the circumstances, would recognize or anticipate as creating a risk of injury. It is not necessary that the particular injury suffered was itself reasonable, but only that the risk of injury existed.[76]

         The Superior Court also rejected Doe's efforts to establish that consent was not a defense in this case. For example, Doe brought a motion to exclude evidence of consent from the trial. But the Superior Court rejected that motion, reasoning that the criminal charges filed against the Officer did not specify that the sexual contact was "unwanted," and, unlike in the correctional facility context, there was no statute criminalizing officer-arrestee sexual interaction and implying that such sex was by law nonconsensual.[77]

         At the prayer conference, Doe again argued that consent could not be a defense to allegations of assault or battery when a woman is in custody.[78] The State argued that whether consent was a defense as a matter of law had already been discussed in the context of Doe's failed motion, [79] that it would not "specifically argue consent" in its closing, and that consent remained a "fact question for the jury."[80] The Superior Court rejected Doe's argument, declined to instruct the jury that Doe was not in a position to consent, and allowed the consent issue to remain embedded in the definitions of the torts Doe alleged the Officer had committed:

Tort of Assault: Plaintiff alleges that [the] Officer . . . acted intentionally and without [her] consent, to cause [her] to be in fear of an immediate harmful or offensive contact.
Tort of Battery: Plaintiff alleges that [the] Officer acted intentionally and without [her] consent, to make contact in a harmful or offensive way.[81]

         And, in its closing arguments at trial, the State argued that the jury should weigh the Officer's version of events against Doe's and make its own decision about whether or not the sex was consensual:

You have heard the conflicting stories about what happened in the car. Unfortunately, both participants are deceased. We would suggest . . . you listen . . . and consider that evidence as to what may or may not have happened in that car.[82]

         The State did this, despite having charged the Officer with two crimes that both depended on the State believing that Doe did not voluntarily perform the oral sex.[83]

         After a three-day trial, the jury found that the State was not liable for the Officer's sexual misconduct.[84] Doe moved for a new trial, arguing the Superior Court's jury instructions "were erroneous and undermined the jury's ability to intelligently reach a verdict."[85] In response to Doe's motion for a new trial, the Superior Court reviewed the Motivation Prong of its § 228 instruction again and found that "[w]ere the Court to augment that language and add [the Officer's] 'specific conduct,' as suggested by Plaintiff, the result would be an importation of the summary judgment inferences in Doe [I] into the trial setting . . . [and] unnecessarily interpose the Court into the jury's determination of scope of employment."[86] And the Superior Court reaffirmed its decision not to deliver Doe's proposed Foreseeability Prong for the § 228 instruction because it "failed to comply with Delaware law and called for the Court to comment on the evidence."[87]

         The Superior Court also reaffirmed its decision not to instruct the jury that consent was not a defense in this case, reasoning that: because "[Doe's] and [the Officer's] versions of the incident conflicted in several material aspects," it was correct to "permit[] both parties to argue in their closing arguments their versions of the events."[88] Doe then appealed the Superior Court's ruling to this Court.

         F. Current Appeal and Supplemental Briefing

         On appeal, Doe argued that the jury's verdict should be reversed because the instructions the jury received failed to give accurate guidance to enable it to make a sensible case-specific determination of liability. In particular, Doe contended that the Superior Court gave the jury no guidance as to how § 228's Motivation Prong was to be applied or as to whether general foreseeability was enough to satisfy § 228's Foreseeability Prong, and improperly allowed the jury to determine that Doe voluntarily consented to the oral sex.[89]

         In pressing these points, Doe reiterated her view that: i) so long as the oral sex occurred during the period when the Officer was processing Doe's arrest, Doe I compelled a finding in her favor on § 228's Motivation Prong; ii) § 228's Foreseeability Prong required only general foreseeability of which there was unrebutted evidence; and iii) an arrestee may not consent to sex with an arresting officer under Delaware law, and thus consent could not be a valid defense.[90] The State took the opposite position on all these points, and stressed that we had said in both Doe I and Doe II that the first two issues were ones for a jury to decide, that "any question of fact on the issue of consent was presented to the jury" by Doe not the State, and that Doe had received her day in court and the jury's finding against her should be respected.[91] The argument that Doe made consent an issue, not the State, came with some ill grace. Doe had argued that consent, by definition, could not be voluntary when given by an arrestee to her arresting officer. The State opposed that position, and then despite charging the Officer with crimes involving non-voluntary sex, [92] insisted that the jury should decide whether Doe freely had sex with the Officer.

         The oral arguments left us concerned that we had put the trial judge and the parties in an untenable position. Rather than hazard further confusion, we concluded that it would be wise to receive further input on two issues. The first was whether the trial court's inability to craft appropriately tailored jury instructions signaled a problem with our earlier rulings that might counsel departure from the law of the case. The other was whether the struggles the court and the parties were having with applying § 228's Motivation and Foreseeability Prongs related in part to using that section of the Restatement in a context where another related provision of the Restatement, § 219, had arguably more sensible application.

         We did not do so lightly. But, when we pressed Doe's lawyer as to why he did not, for example, move for summary judgment again on the Motivation and Foreseeability Prongs on remand from Doe II, he argued that he already sought clarity in Doe II and had been rebuffed.[93] Upon our review of the record, we also realized that he had fairly argued § 219(2)(d) in Doe I, [94] and that we had ignored that argument.

         We also took into account that, by failing to identify whether it was the wrongful conduct itself that had to be motivated in part by the Officer's desire to serve his employer to satisfy § 228's Motivation Prong, we left the Superior Court to hand to the jury a question of common law legal policy, not a case-specific question of fact. Not only that, by suggesting that the oral sex need not be motivated by a desire to serve the employer if it occurred during the course of "transporting a prisoner, "[95] we also risked confusing the proper inquiry under § 228's Motivation Prong in all kinds of cases, by importing into it ambiguities generated by Doe I's legitimate concern over the serious nature of the police misconduct Doe alleged.

         By widening our lens to consider § 219, which was designed to provide exceptions to § 228 by allowing a plaintiff's claims to bypass all of § 228's requirements when justified, we believed we would better position ourselves to give § 228 its most sensible interpretation. And in addition, give Doe a chance to be heard on her original argument that vulnerable arrestees should be able to obtain recovery without showing that the Officer's misconduct fell within the scope of his employment.

         In response to our request for further briefing, Doe argued that the law of the case should give way here, that both § 219(2)(c) and (d) applied to the undisputed facts of this case, and that judgment should be entered in her favor on the issue of liability because, under Delaware law, an arrestee cannot voluntarily consent to sex with her arresting officer.[96]

         For its part, the State argued that "[n]one of the exceptions to the law of the case apply," that the scope of employment issue cannot "be determined as a matter of law, even if [this Court] were to not follow law of the case," because Doe did not fairly present that issue to the trial court, and that we should decline to adopt § 219.[97]It also appears to adhere to its view that an arrestee like Doe could voluntarily consent to sex with her arresting officer.

         III. Analysis

         We now wrestle with the issues on appeal in this order. First, we grapple with the question of whether we should adhere to the law of the case and conclude that it is in the interests of justice to examine this case with a fresh eye. Second, we address the specific issues that our prior opinions hedged. Initially, whether the employee's wrongful conduct itself must be motivated in part by a desire to serve the employer to satisfy the Motivation Prong of § 228. From there, we clarify whether general or specific foreseeability is required to satisfy § 228's Foreseeability Prong. Then, we consider the relevance of § 219 and whether two of its subsections apply and relieve Doe of the obligation to show that the Officer's sexual misconduct fell within the scope of his employment under § 228. Finally, we address the State's defense to liability that rests on the proposition that an arrestee may consent to sex with her arresting officer.

         A. The Law of the Case Doctrine

         We depart from the law of the case and decide important issues raised by this appeal with fresh eyes because the interests of justice require us to do so.[98]

         We respect that the State argues that because "both parties tried this case according to the legal rule set down by the Court in Doe I and reaffirmed in Doe II," "it would not be unjust to the parties to allow this verdict to stand."[99] We acknowledge that this case has many years on it now, and we understand the State's legitimate concern about a late change in direction. But to the extent that Doe I established § 228's Motivation and Foreseeability Prongs as issues for the jury, that "law of the case" was only binding for so long as there were outstanding issues of fact related to those prongs. Although Doe I was correct that "the question of whether a tortfeasor is acting within the scope of his employment is fact-specific, and, ordinarily, is for the jury to decide, "[100] the question of whether tortious conduct falls within the scope of employment is "decided by the court if the answer is clearly indicated."[101]

         The undisputed facts of this case turned the Motivation and Foreseeability Prongs into questions of law. Either it was the Officer's sexual misconduct or his arrest and transport of Doe that needed to be motivated in part by a desire to serve his employer. If the former, judgment should have been entered for the State on the issue of liability because Doe did not allege that the oral sex was so motivated. If the latter, judgment on the Motivation Prong should have been entered in Doe's favor because the Officer was processing a valid arrest.

         Likewise, the unresolved issue about foreseeability was one of law, not fact. If it was sufficient to satisfy § 228's Foreseeability Prong that it be foreseeable as a general matter that a police officer might misuse his authority to obtain sex from an arrestee, then judgment on the Foreseeability Prong was due to Doe because there was unrebutted evidence of general foreseeability of that kind. If, by contrast, Doe could only satisfy the Foreseeability Prong by showing that it was specifically foreseeable that the Officer posed a risk of sexual misconduct, then judgment on the Foreseeability Prong was owed to the State, as Doe produced no evidence that there were any warning signs that the Officer posed a specific risk of this kind.

         The effects of this Court's error in remanding the Motivation and Foreseeability Prong issues under § 228 instead of answering them as a matter of law, and doing so without giving any guidance on how to tailor the required jury instructions, were compounded by the Superior Court's hesitation to edit the pattern § 228 instruction. The question presented to the jury failed to clarify whether the Motivation Prong applied to the Officer's wrongful conduct or the general course of conduct within which that wrongful act occurred. Likewise, the jury instruction did not clarify whether the Foreseeability Prong required officer-specific or general foreseeability. Without these clarifications, the Superior Court's instruction could not "reasonably inform" the jury about the questions they were being asked to answer.[102]

         Because we said in both Doe I and Doe II that these questions were ones for the jury, and gave no guidance as to how to resolve the legal issues underlying them, we do not fault the Superior Court for its reluctance to come down on one side of each of the issues, or its decision to give the jury instructions that simply parroted the terms of § 228.[103] But we did sense on the part of the Superior Court a broader disinclination to shape jury instructions involving standard provisions of law like § 228 into more case-specific instructions that focus the jury on what its role is in answering the relevant fact questions necessary to render a fair verdict in the case before it. And if that broader disinclination was the only basis for its reticence, we would be more willing to be critical, because jury instructions should be tailored to the specific dispute, a task that often requires the judge to isolate the fact questions that are relevant under the law to the actual case before the jury.[104] But here, the Superior Court's reticence was understandable, given that this Court failed on two occasions to provide any insight to help the trial court determine what was required to satisfy, as a matter of law, the Motivation and Foreseeability Prongs of § 228, and indicated that the jury was supposed to decide whether the State was liable based on hearing the evidence and being given the rote terms of § 228 in the form of a question.

         Moreover, because of the ambiguity of Doe I, there is a possibility that failure to clarify in this appeal what the Motivation Prong means could have a negative effect on other cases involving § 228. By ignoring Doe's arguments regarding § 219 in Doe I, we left in place precedent rejecting a provision of the Restatement that is intended to provide exceptions to § 228, and to address difficult cases of this kind, and risked establishing an imbalanced approach to respondeat superior that could distort § 228's application in order to address inequities its rote application would have, if one proceeds under the assumption that § 228 should not give way when § 219 suggests it should.

         Lastly, although cases like this are rare, that does not mean they are not important. For obvious reasons, scholars and commentators have long argued that cases of this kind are underreported.[105] It is important therefore for the principles of liability relevant to cases of this kind to be clear, and for victims to be assured that they can recover under respondeat superior if the principles of the Restatement support that result.

         The question of whether the law of the case should be adhered to comes down to whether it is in the interests of justice to do so. The unusual circumstances here lead us to conclude that the only way we can provide case-specific justice, and avoid confusion in other cases in the future, is to examine the issues before us with open minds.[106]

         B. Section 228's Motivation Prong

         The key legal issue in Doe I was whether it was the Officer's specific tortious conduct, the oral sex, or his general conduct, the arrest and transport, that needed to be motivated at least in part by a desire to serve his employer to satisfy § 228's Motivation Prong. Doe I's analogy to Draper did little to answer this doctrinal question because Doe never alleged that the Officer's sexual misconduct was even partially motivated by his desire to serve his employer.

         As we have discussed, Draper is a mixed-motive case. The defendant in Draper was charged with controlling the flow of traffic for his employer and stabbed a motorist intruding into the restricted area.[107] In Doe I we stated that:

[i]f the act of cutting someone's throat can be considered a service to the employer paving company on the theory that the employee was controlling traffic, then a sexual assault can be considered a service to the police on the theory that part of what [the Officer] was doing was transporting a prisoner.[108]

         But that statement did more to obscure than to illuminate the key issue. The fact that the Officer received oral sex during the same timeframe when he was processing Doe's arrest does nothing to address whether § 228's Motivation Prong applies to the specific wrongful act (i.e., the receipt of oral sex) or the overall course of conduct within which the wrongful conduct occurred.

         Upon close examination of the Restatement, it is apparent to us that § 228's Motivation Prong focuses on the wrongful conduct itself. Cases like Draper exist because the Restatement recognizes that there are situations where the wrongful conduct can have more than one motive, especially where the employee is charged with duties like security or law enforcement where some degree of force is often required to serve the employer faithfully.[109] To satisfy § 228's Motivation Prong, the allegedly tortious conduct must be "actuated, at least in part, by a purpose to serve the master."[110] The examples and discussion in the commentary to § 228 make this clear.[111] And other courts have found that police officers' sexual misconduct does not satisfy the Motivation Prong of § 228 for this very reason.[112]

         In this case, Doe never alleged that the Officer's misconduct was motivated in any part by a desire to serve the State Police or the State. Her complaint alleged that the Officer sought oral sex solely to gratify himself.[113] There was no question of mixed motivation for the jury to resolve. If Doe was required to satisfy the Motivation Prong of § 228, she could not, and judgment was owed to the State on that ground. That reality underscores why Doe originally argued that § 219 relieved her of the need to satisfy § 228, and why we examine § 219's relevance in this decision.

         C. Section 228's Foreseeability Prong

         But before addressing § 219, we feel obligated to address the scope of the Foreseeability Prong, about which the parties have disagreed about throughout this case. From Doe I on, the parties have assumed that § 228's Foreseeability Prong, which requires that, "if force is used, the use of force is not unexpectable," applies to this case, likely because Doe's original complaint sued the State for the torts of assault and battery.[114] In Doe I, we held that foreseeability was a jury issue, while citing to cases for the proposition that "sexual assaults by police officers and others in positions of authority are foreseeable risks."[115]

         As has been discussed, the parties disagree on what § 228's Foreseeability Prong requires in the context of police sexual misconduct. Consistent with other courts' general discussions of foreseeability in the context of police officers' positions of authority, we find that Doe is correct in arguing that she is not required to show that it was foreseeable that the Officer posed a risk of committing sexual misconduct against an arrestee.[116] Instead, all Doe was required to show was that it was, as a general matter, foreseeable that police officers will misuse their authority to extract sexual favors from arrestees.

Although cases like this are rare, that does not mean they are not foreseeable:
Cases like this stigmatize respected police officers who in rendering vital public work surely outnumber the errant officers. That does not mean, however, that in some circumstances, as in the present case, this type of sexual misconduct by an officer is not reasonably foreseeable for vicarious liability purposes.[117]

         The reality is that there is no question of fact in this case that the Foreseeability Prong was satisfied. In defending against the State's initial motion for summary judgment and in later seeking summary judgment on the issue herself, Doe put in the summary judgment record evidence that "individual State Troopers commit[ted] unauthorized and wrongful acts during execution of their duties, including one rape, and multiple assaults," and that "in 1995 a Lewes police officer pled guilty to on duty unlawful sexual intercourse with a woman in custody."[118] And former Delaware State Police Superintendent Thomas MacLeish acknowledged that "there is a risk in police work that a small minority of police officers will engage in sexual assault or similar misconduct involving detainees in their custody."[119]

         That the State Police provides its officers training on this issue is admirable, [120]and unsurprising given the abundant academic, professional, and news sources documenting the foreseeability of this risk, [121] and the likelihood that the phenomenon is underreported.[122] The documented nature of this risk is also exemplified by a lengthy monograph published by the International Association of Chiefs of Police, which provides information and materials to help police chiefs implement training and suggests policies to address the problem.[123] As that report summarized:

Within the policing profession some conditions of the job may inadvertently create opportunities for sexual misconduct. Law enforcement officers (1) have power and authority over others; (2) work independently; (3) sometimes function without direct supervision; (4) often work late into the night when their conduct is less in the public eye; and (5) engage with vulnerable populations who lack power and are often perceived as less credible (e.g., juveniles, crime victims, undocumented people, and those with addictions and mental illness).[124]

         In cases like Doe's, the plaintiff has no obligation to go further than pointing to undisputed evidence of this kind that the sexual misconduct was generally foreseeable. Evidence that the particular officer in question was known to have a proclivity for sexual misconduct might bear importantly on a case accusing the employing police agency of engaging in fault-based conduct of its own, but it is not necessary to satisfy § 228's Foreseeability Prong.

         Because in this case the State did not and could not identify a material dispute of fact that there was general foreseeability of the kind required by the Foreseeability Prong of § 228, Doe was entitled to a ruling in her favor on this issue as a matter of law. As we next explain, Doe did not need to satisfy any of the elements of § 228 in order to recover against the State. But, we feared that the ambiguity of the rulings in this case on the scope of § 228's Foreseeability Prong could cause confusion in future cases, and that it was therefore in the interests of justice to provide clarity on the issue.

         D. Section 219's Exceptions to § 228

         In its original dismissal of the case, the Superior Court considered the application of § 219 and concluded that "there are no Delaware cases of which the Court is aware that adopt § 219 of the Restatement (Second) of Agency as the law of Delaware."[125] But § 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, "[126] it is referenced as a companion provision in § 228, [127] and when embracing the Restatement, this Court should be inclined to embrace its relevant provisions in their entirety and not cherry-pick isolated sections.

         Section 219 exists precisely because there are situations when it would be inequitable to deny a tort victim a recovery against the tortfeasor's employer, even if the provisions of § 228 would not allow her recovery. Indeed, § 219's existence underscores why this Court has struggled with this case. However ambiguous Doe I was in articulating a mandate for the Superior Court to follow, Doe I's equitable foundation is consistent with our recognition of § 219. Although Doe I was terse, it is obvious that the Court was rightly concerned about allowing the State to escape liability when one of its police officers, in the course of making and processing a valid arrest, misused his legal authority over an arrestee to coerce her into performing sexual acts on him in order to escape spending time in jail.

         Other courts have found that two of § 219's exceptions operate to address this concern: § 219(2)(d), which provides for respondeat superior liability outside the scope of employment when the tortfeasor was "aided in accomplishing the tort by the existence of the agency relation, "[128] and § 219(2)(c), which does the same for situations in which the employer owed a "non-delegable duty" to the tortfeasor's victim.[129] We agree with those courts, and Doe, in viewing these exceptions as applicable to this case and relieving Doe of the obligation to satisfy the requirements of § 228.[130] We begin with § 219(2)(d).

         i. Section 219(2)(d)

         Here, it is plain to us that the Officer was "aided in accomplishing the tort by the existence of the agency relation."[131] According to Doe's testimony, the Officer told her that if she performed oral sex on him, he would release her. But if she failed to comply, the Officer would make her spend the weekend in jail.[132] From the standpoint of an ordinary person, this threat would have real force. But the force of that threat is not dependent on a belief that the Officer had the actual authority to demand sex for favorable treatment, as the State suggested it must be, to trigger liability under respondeat superior.[133]

         Rather, that threat would have real force for a more mundane reason: police officers have considerable discretion in determining how strict to be in seeking high bail or other conditions of release, [134] and in many cases, releasing a defendant on a summons.[135] Someone in Doe's position would rightly fear that if she refused the Officer, he would seek to put her in jail. And if she attempted to tell the magistrate what he did, she might fear that she would be disbelieved by a magistrate who may have dealt with the Officer in other cases, and perhaps get even worse treatment for appearing to have falsely accused a member of law enforcement of wrongdoing. Fear of that kind would be reasonable, as someone in Doe's position would assume the Officer would lie to the court. The record here illustrates how rational a fear of that kind would be, because the Officer denied that the oral sex occurred when first confronted with Doe's complaint, [136] and only admitted it when he was later confronted with physical evidence of the oral sex.[137] Absent the oral sex occurring, that evidence does not exist and is unavailable to an arrestee who refuses.

         For reasons like this, courts in other jurisdictions have held that § 219(2)(d) applies when an employee misuses his authority to obtain sex.[138] Or, as the Vermont Supreme Court held: § 219(2)(d) applies when a "plaintiff can show that an on-duty law enforcement officer was aided in accomplishing an intentional tort involving a sexual assault on the plaintiff by the existence of the employment relationship with the law enforcement agency."[139]

         The policy basis for doing so was well stated by the United States Court of Appeals for the Seventh Circuit in Norris v. Waymire, a case decided under 42 U.S.C. § 1983: When an officer takes "advantage of the opportunity that [his] authority and proximity and privacy give him to extract sexual favors," that behavior "should be sufficiently within the orbit of his employer-conferred powers to bring the doctrine of respondeat superior into play, even though he is not acting to further the employer's goals but instead is on a frolic of his own."[140]

         Cases like Waymire recognize that police officers with arrest authority have a coercive power that distinguishes them from most employees, as those they arrest are required to comply and cannot resist, even peaceably, their authority. Here, for example, there is no question that the Officer was aided in accomplishing the sexual misconduct by his position of authority, because "the wrongful acts flowed from the very exercise of this authority."[141] Had he not been "in uniform, in a marked patrol vehicle" and effectuating an arrest, Doe "would not have stopped at his direction and the events that followed would not have occurred."[142]

         In finding that § 219(2)(d) applies to this case, we take into account the critical difference between police officers who act to arrest people and employees of most businesses. However important plumbers, electricians, accountants, and myriad other providers of services are to their customers, none of them wield the potent coercive power entrusted to our police under our laws.[143] None of these employees have the presumptive legal authority to deprive a person of her liberty and subject her to a period of incarceration. By contrast, that is the authority our police officers possess, which is enforced by criminal laws punishing arrestees for resisting any exercise of their authority.

         Arrestees are by definition required to surrender their control and autonomy to the State upon their arrest. The Delaware Criminal Code "gives no right to resist an arrest by a police officer, whether or not the arrest was lawful and whether or not the accused knew the arrester was a police officer."[144] In fact, it is a class G felony to resist arrest with force or violence, and a class A misdemeanor to peacefully resist arrest.[145]

         The State argues that § 219(2)(d) only applies to situations in which the tortfeasor exercises apparent authority and tricks the victim into believing he has been authorized by his employer to commit the tort itself.[146] But the Supreme Court of the United States has rejected the argument that § 219(2)(d) only applies in situations involving apparent authority, reasoning that such an interpretation "would render the second qualification of § 219(2)(d) almost entirely superfluous . . . . The illustrations accompanying this subsection make clear that it covers not only cases involving the abuse of apparent authority, but also cases in which tortious conduct is made possible or facilitated by the existence of the actual agency relationship."[147]

The Vermont Supreme Court dismissed a similar argument:
Although one of the hypotheticals in the comment involves misrepresentation or deceit, the other does not, and the comment does not limit the reach of the section language in this respect. Indeed, the comment specifically states that the "enumeration of such situations is not exhaustive."[148]

         And the New Mexico Supreme Court adopted § 219(2)(d)'s provision for liability when an employee is "aided by his status . . . in committing his alleged torts."[149]

         Here, there is no dispute that the Officer was "aided . . . by the existence of the agency relation" in victimizing Doe.[150]

         ii. Section 219(2)(c)

         For reasons similar to why we find § 219(2)(d) applicable to this case, we also find that the State cannot escape responsibility for the Officer's conduct under § 219(2)(c), which provides an exception to the scope of employment requirement in cases where the employee's "conduct violated a non-delegable duty of the master."[151] Because under Delaware law it is crime to resist arrest, even peaceably, the arrestee has no option but to remain under the arresting officer's domain and is subject to criminal punishment for taking any action to escape or resist. And the State can be liable "because of [its] duty to protect [the arrestee]," even if the employee "commits an assault or battery in a spirit of play or wholly by way of revenge or other personal motive."[152]

         When the State authorizes police officers to take away the liberty of arrestees, it cannot delegate away its own responsibility to make sure that an arrestee is not harmed by the tortious conduct of its arresting officers. Even more than common carriers who cannot delegate away the duty of care they owe their passengers and cargo, [153] governmental authorities who give police officers the power to deprive arrestees of their liberty are fairly held to account if their own officers abuse their official authority and commit an intentional tort on an arrestee. For this reason, the Indiana Court of Appeals has held an employer liable for an arresting officer's tortious sexual misconduct, finding that a non-delegable duty exists as a "matter of law" when "patrons must surrender their control and autonomy to the entity while they are in its care."[154] Because an arrestee is "wholly dependent on [her arresting] officer for her safety and survival and ha[s] no ability to control her environment or protect herself from harm," we find that the logic behind the § 219(2)(c)'s non-delegable duty exception to respondeat superior's scope of employment requirement is applicable under Delaware law.[155]

         For these reasons, we therefore find that on the undisputed facts of record, both § 219(2)(c) and (d) applied to relieve Doe of the obligation to satisfy the requirements of § 228.

         ****

         The State argues that if we give effect to § 219, we are fundamentally altering the law of respondeat superior and holding employers responsible in strict liability, and not for a fault-based tort.[156] This argument is unconvincing and based on a misunderstanding of general principles of respondeat superior liability.

         In most cases where employers are held responsible for a tort committed by an employee under § 228, there is no inquiry into whether the employer itself has acted with negligence or some worse level of conduct. Instead, the focus in terms of the level of care is on the employee and if the employee has committed a tort, say involving negligence, then the question is whether the employer should also be liable because the employee's conduct occurred on the job.[157] For example, if a UPS driver delivering a Christmas gift is at fault in a fender-bender, UPS is liable under respondeat superior, without any inquiry into its fault.

         We also disagree with the State that by adopting § 219, we are somehow choosing to forsake § 228 for another framework. The authors of the Restatement envisioned that § 228 and § 219 would operate in tandem.[158] As this case and other decisions illustrate, ignoring § 219 and putting all the weight on § 228 can give rise to the temptation to misinterpret § 228 to deal with cases when allowing the employer to escape respondeat superior liability would otherwise be inequitable.[159]By using the Restatement as intended, and employing § 219 in tandem with § 228, there is no need to twist the words of § 228 to avoid inequity.

         E.Consent Not a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.