Sherman v. Delaware Department of Public Safety

One day, Jane D. W. Doe (plaintiff), decedent, was arrested for shoplifting. While transporting Doe, the arresting state police officer told her that if she performed oral sex on him, he would take her home rather than take her to jail. Doe complied, performing the sexual act in the police car, and the officer took Doe home. Upon Doe’s report to the Delaware State Police and an investigation, the officer was arrested and committed suicide shortly thereafter. James Sherman (plaintiff), a representative of Doe’s estate (plaintiff), brought suit against the Delaware Department of Public Safety (defendant) for vicarious liability pursuant to respondeat superior. In order to show an employer’s liability for an employee’s intentional tort, a victim needed to satisfy the scope-of-employment test of Restatement (Second) of Agency § 228, which required satisfaction of both a foreseeability prong and a motivation prong. However, exceptions existed that relieved a victim of the need to show that an employee’s intentional tort was committed within the scope of employment if the employee was helped to commit the conduct by virtue of the employment relationship, pursuant to § 219(2)(d), or the employer owed the employee’s victim a nondelegable duty, pursuant to § 219(2)(c). At trial, Doe did not assert that the police officer’s sexual misconduct was somehow motivated to serve his employer as required by the motivation prong of § 228. Rather, Doe only asserted that the officer acted for personal sexual gratification. Instead, Doe argued that the exceptions in § 219 applied. A superior court declined to apply the exceptions and, because § 228 was not satisfied, granted summary judgment for the state (defendant). Doe appealed. On appeal, the Delaware Supreme Court did not address the exceptions and reversed the trial court, ruling that a jury should determine whether § 228 was met, even though Doe had not argued that the motivation prong was met. On remand, a jury ruled in favor of the state, and Doe appealed, arguing that the jury instructions should not have included consent in the torts she alleged. On appeal, the Delaware Supreme Court reflected on the errors it made in its first opinion, ruled that an arrestee could not voluntarily consent to have sex with the officer conducting an arrest, and considered whether the exceptions in § 219 applied, as Doe had originally asserted.