United States Court of Appeals
For the First Circuit
No. 97-2076
PATRICIA O'BOYLE COSTOS,
Plaintiff, Appellee,
v.
COCONUT ISLAND CORP., D/B/A THE BERNARD HOUSE
AND NEAL L. WEINSTEIN,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella, Chief Judge ,
Boudin and Lynch, Circuit Judges.
Scott D. Gardner, with whom Gardner, Gardner & Murphywas on brief, for appellants.
Raymond C. Hurley, with whom Hurley & Mina was on
brief, for appellee.
March 2, 1998
LYNCH, Circuit Judge. A jury found the defendants
vicariously liable for the act -- rape -- committed by their
employee Charles Bonney. Bonney, the manager of the Maine inn
owned by defendants, let himself into the room of the
plaintiff, a guest at the inn, in the early morning hours and
raped her. The jury awarded plaintiff $50,000 on that count,
and $5,000 on a negligence count.
Defendants say the issue of vicarious liability never
should have gone to the jury. They argue that under the
Restatement (Second) of Agency 219(2)(d), adopted by Maine
law, vicarious liability may not be imposed for acts committed
by the employee outside the scope of employment unless the
employee has acted with apparent authority or deceit, and that
the evidence does not support such a finding. Under present
Maine law, and on the evidence of record, the issue was, we
believe, properly submitted to the jury. The Maine courts may
decide, as have other courts, that some limiting principles
should evolve to prevent 219(2)(d) from being used to erode
the distinction between acts committed within the scope of
employment and those outside the scope. But this case does not
present the occasion to do so. We affirm.
I.
Because the defendants appeal the denial of their
motion for judgment as a matter of law, we review the record in
the light most favorable to the non-moving party. See Ansin v.
River Oaks Furniture, Inc., 105 F.3d 745, 753 (1st Cir. 1997).
In the early morning of August 14, 1993, Charles
Bonney raped Patricia O'Boyle Costos in her room at the Bernard
House in Old Orchard Beach, Maine. The Bernard House was a
small seasonal inn owned by defendant Neal Weinstein and
managed through the Coconut Island Corporation. The Coconut
Island Corporation was wholly owned by Weinstein in 1993.
The day before, Costos and her friend Lynn Tierney
travelled to Maine for the weekend. Tierney knew Charles
Bonney, knew that he worked at the inn, and suggested that she
and Costos spend the weekend at the Bernard House. When they
arrived at the inn, Costos and Tierney paid Bonney for two
nights' accommodation. Bonney told Costos that he was the
manager and future owner of the Bernard House.
Bonney escorted the women to Room 23 on the third
floor. He carried a plastic bag full of keys with him, and
rummaged through it looking for the room key. Bonney
eventually gave Tierney and Costos a key from his pocket,
telling them that it was a master key and that they should not
lose it.
That evening Costos, Tierney, Bonney, and two of
Bonney's male friends socialized together at the Bernard House
and later at a local club. Costos and Tierney eventually
returned to their room at the inn, Costos to go to bed, and
Tierney to keep her company back to the room.
Costos went to bed, but Tierney decided to go out
again. Tierney left, taking the room key with her. Costos
remembered that Tierney locked the door to their room.
Costos fell asleep. She awoke to find Bonney in the
bed, having intercourse with her. She threw Bonney out of the
bed, punching and kicking him. Bonney stood over her,
laughing, and then left the room.
Bonney has fled the jurisdiction and remains at
large. He is wanted on a federal fugitive warrant.
II.
Costos sued the defendants in federal court, alleging
the defendants were negligent and were vicariously liable for
Bonney's torts. A jury trial began on August 7, 1997. At the
close of the plaintiff's case, the defendants moved for a
directed verdict, inter alia, on the vicarious liability count.
That motion was denied. This appeal is from the denial of that
motion and the denial of the renewal of that motion.
III.
The grant or denial of a motion for judgment under
Fed. R. Civ. P. 50(a) is reviewed de novo, under the same
standards applied by the district court. See Ansin, 105 F.3d
at 753. We will "reverse the denial of such a motion only if
reasonable persons could not have reached the conclusion that
the jury embraced." Id. (citations and internal quotation marks
omitted).
The district court, sitting in diversity, applied the
substantive law of Maine. See Erie R.R. Co. v. Tompkins, 304
U.S. 64, 78 (1938); Jordan v. Hawker Dayton Corp., 62 F.3d 29,
32 (1st Cir. 1995). The plaintiff's vicarious liability claim
was based upon 219(2)(d) of the Restatement (Second) of
Agency, which has been adopted as the law of Maine. See McLainv. Training & Dev. Corp., 572 A.2d 494 (Me. 1990) (holding a
jury could find employer vicariously liable under 219(2)(d)
for the intentional torts of its employee). That section
states:
Section 219. When Master is liable for Torts
of His Servants
. . .
(2) A master is not subject to liability for
the torts of his servants acting outside the
scope of their employment, unless:
. . .
(d) the servant purported to act or 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.
Maine has also adopted the Restatement's definition
of agency:
Agency is the fiduciary relationship which
results from the manifestation of consent by
one person to another that the other shall act
on his behalf and subject to his control, and
consent by the other to so act. . . . A
servant is an agent employed by a master to
perform service in his affairs whose physical
conduct in the performance of the service is
controlled or is subject to the right to
control by the master.
Bonk v. McPherson, 605 A.2d 74, 78 (Me. 1992) (quoting
Restatement (Second) of Agency 1,2 (1958)). It is plain
that there was an agency relationship between Bonney and
defendants, and that Bonney, as manager of the inn, was the
defendants' "servant" under this definition.
Defendants argue that they cannot be liable under
219(2)(d) because it requires the use of "apparent authority"
or deceit by the servant to facilitate the tort. Defendants
argue that there is no evidence that Costos believed that
Bonney was acting on his employer's behalf when he assaulted
her, or that the use of apparent authority in any way aided
Bonney in accomplishing the tort.
Defendants attempt to construe the final clause of
219(2)(d), "or he was aided in accomplishing the tort by the
existence of the agency relation," as merely a reiteration of
the prior language in subpart (d) on apparent authority. If
the phrase was meant to be independent of an apparent authority
analysis, defendants argue, it would have been put into a
separate subsection. We conclude that under Maine law, as
articulated in McLain, a master may be liable for the torts of
his or her servants who are acting outside the scope of their
employment when they are aided in accomplishing the tort by the
existence of the agency relation.
In McLain, a client of a Jobs Corps program sued the
agency operating the program after a counselor directed him to
perform painful and humiliating "tests." The counselor said
those "tests" would help the client gain admission to the U.S.
Marine Corps. The client was rejected by the Marines, and sued
the agency for the injuries he suffered as a result of the
counselor's intentional torts. The Supreme Judicial Court of
Maine held that a jury could find the agency vicariously liable
for the client's injuries under 219(2)(d), because "the jury
could rationally find from the evidence that [the counselor's]
employment made possible the tortious assault and battery he
imposed upon McLain, rendering [the agency] liable for all of
McLain's injuries at [the counselor's] hand, on the alternative
theory of vicarious liability." 572 A.2d at 498. The court
said the jury could find either that the tort was within the
scope of employment or that it was outside the scope but within
the 219(2)(d) exception.
McLain does not say that the use of apparent
authority is required for vicarious liability under
219(2)(d). See also Grover v. Minette-Mills, Inc., 638 A.2d
712, 717 (Me. 1994) (citing McLain for the proposition that
vicarious liability is proper where the employment relationship
"made possible" the commission of the tort). Instead, the
Maine courts have thus far followed the plain meaning of
219(2)(d). See United States v. Rivera, 131 F.3d 222, 224 (1st
Cir. 1997) (when plain meaning is clear, the sole function of
the court is to enforce it). Indeed, defendants' reading would
violate another rule of statutory construction because the
broad reading proffered by defendants would render the second
clause of subpart (d) superfluous. See Labbe v. Nissen Corp.,
404 A.2d 564, 567 (Me. 1979) ("Nothing in a statute may be
treated as surplusage if a reasonable construction supplying
meaning and force is otherwise possible.").
Defendants argue that this reading of 219(2)(d)
will result in a vast expansion of employer liability in Maine
and will render every intentional tort committed outside the
scope of employment as equivalent to those committed within the
scope of employment. Defendants ask us to interpret
219(2)(d) in light of the evolving rules for vicarious
liability for sexual harassment in Title VII cases. We need
not speculate whether Maine courts would follow such an analogy
or otherwise narrowly gloss the Restatement because, even if
narrowing limitations were to be assumed arguendo, the appeal
would still fail.
In general terms, defendant's argument as to the
scope of 219(2) finds some support in case law elsewhere. As
noted by Judge MacKinnon, concurring in a Title VII case,
Barnes v. Costle, 561 F.2d 983, 996 (D.C. Cir. 1977),
"Concerning the second part of the [ 219(2)(d)] exception, at
first reading it seems to argue too much. In every case where
vicarious liability is at issue, the agent will have been aided
in some way in committing the tort by the position that he
holds." The Court of Appeals for the D.C. Circuit, citing the
Barnes concurrence, recently sounded the same cautionary note.
"In a sense, a supervisor is always 'aided in accomplishing the
tort by the existence of the agency relation' because his
responsibilities provide proximity to and contact with the
victim." Gary v. Long, 59 F.3d 1391, 1397 (D.C. Cir. 1995).
In attempting to find a narrowing principle, that court
referred to the commentary of the Restatement: that an employer
is liable only if the tort "was accomplished by an
instrumentality, or through conduct associated with the agency
status." Id. (citing Restatement (Second) of Agency 219 cmt.
e (1958)).
Even viewing this case through the narrower focus of
the commentary on Restatement 219, which the Gary court found
helpful, defendants are well within the scope of 219(2)(d)
liability. By virtue of his agency relationship with the
defendants, as manager of the inn, Bonney was entrusted with
the keys to the rooms, including Costos' room, at the Bernard
House. Because he was the manager of the inn, Bonney knew
exactly where to find Costos. The jury could find that Bonney
had responsibilities to be at the inn or to have others there
late at night. In short, because he was the defendants' agent,
Bonney knew that Costos was staying at the Bernard House, he
was able to find Costos' room late at night, he had the key to
the room and used the key to unlock the door, slip into bed
beside her as she slept, and rape her.
IV.
We hold that the district court correctly denied the
defendants' motion for judgment as a matter of law. The record
shows sufficient evidence to hold the defendants vicariously
liable under 219(2)(d) for Bonney's acts.
The judgment of the district court is affirmed.
Costs are awarded to plaintiff.