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

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMES SHERMAN, et al., §
§ No. 206, 2017
Plaintiff Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ C.A. No. 61290375
STATE OF DELAWARE §
DEPARTMENT OF PUBLIC SAFETY, §
§
Defendant Below, §
Appellee. §

Submitted: April 6, 2018
Decided: June 26, 2018

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

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.

STRINE, Chief Justice, for the Majority:
 I. Introduction

This is a difficult and unusual appeal, in the sense that the appellant’s primary

argument, when read closely, is not so much addressed to error on the part of the

trial judge as to the prior rulings of this Court that put the trial court in the impossible

position of framing jury instructions that required the jury to make findings of fact,

when the only open issues were not ones of fact, but of law.

The awful facts of the case are, as one small blessing, unusual, too. The

undisputed facts at the center of this case are that Jane D.W. Doe, the deceased

plaintiff whose estate is the appellant, was validly arrested by a Delaware State

Police Officer for shoplifting, and “was subject to an outstanding capias.”1 Doe

alleged that, rather than properly processing her arrest, the Officer instead told her

that if she performed oral sex on him, he would take her home and she could just

turn herself in on the capias the next day.2 If she refused, he would “take her to

court, where bail would be set, and . . . she would have to spend the weekend in

jail.”3 The Officer originally denied that the oral sex occurred, but after DNA

evidence of the oral sex was found on Doe’s jacket, he claimed that he “didn’t tell

her [he] was going to do anything for her . . . . She just started coming on to

1
Doe v. State, 76 A.3d 774, 775 (Del. 2013).
2
Id.
3
Id.
1
[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

4
App. to Opening Br. at 100‒01 (Interview of [the Officer]) (Q. “[H]er allegation is that she
performed oral sex on you in your police car in the front seat . . . . So, [] you are telling me that
nothing happened?” A. “No, nothing happened.”); id. at 120. Both Doe’s and the Officer’s
statements were admitted into evidence at trial. State’s Answering Br. at 37.
5
Oral Argument at 26:08–26:15, Sherman v. Dep’t. of Pub. Safety (No. 206, 2017),
https://livestream.com/accounts/5969852/events/8066882/videos/170525984/player (The Court:
“There is no question that the oral sex happened while she was under arrest, right?” State:
“Correct.”).
6
App. to Opening Br. at 134 (Complaint and Warrant for [the Officer]).
7
See WAYNE R. LAFAVE ET AL., 4 CRIM. PROC. § 13.1(b) n.34 (3d ed. 2014) (explaining the
“common assumption” that the prosecutor can proceed only when she believes that the defendant
is guilty); Sarah Anne Mourer, Believe It or Not: Mitigating the Negative Effects Personal Bias
and Belief Have on the Criminal Justice System, 43 HOFSTRA L. REV. 1087, 1096 (2015) (noting
that “it is clear that the prosecutor must believe that the defendant is guilty to proceed to trial”);
Alafair S. Burke, Prosecutorial Agnosticism, 8 OHIO ST. J. CRIM. L. 79, 79 (2010) (“Most legal
ethicists maintain that an ethical prosecutor should pursue criminal charges against a defendant
only if the prosecutor personally believes that the defendant is guilty.”); Bruce A. Green, Why
Should Prosecutors “Seek Justice”?, 26 FORDHAM URB. L.J. 607, 640–41 (1999) (“Prosecutors
have the power, freedom and responsibility to make decisions for the sovereign in the criminal
context. . . . They must satisfy themselves of an individual’s guilt as a precondition to determining
that the conviction of an individual is an end to be sought on behalf of the state or the federal
government.”); Bennett L. Gershman, A Moral Standard for the Prosecutor’s Exercise of the
2
 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

Charging Decision, 20 FORDHAM URB. L.J. 513, 522 (1993) (“[B]efore making the ultimate
decision to charge, the prosecutor should then assure herself that she is morally certain that the
defendant is both factually and legally guilty . . . . Finally, the prosecutor who acknowledges moral
uncertainty about a defendant’s guilt but decides nonetheless to bring charges, violates the
prosecutor’s special obligation to seek justice, and tacitly invites the system to miscarry.”).
8
Doe v. State, 76 A.3d 774, 777 (Del. 2013) (“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.”).
9
Sherman v. State, 133 A.3d 971, 979 (Del. 2016) (“In our 2013 opinion, this Court held that the
question of whether an employee acted in the scope of employment ‘is ordinarily one for decision
by the jury.’ The Superior Court correctly determined that our 2013 holding is the law of the case
and, accordingly, properly denied Doe’s motion for summary judgment.”).
3
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

10
Restatement (Second) of Agency § 228(1)(c) (1958).
4
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.

11
Id. § 219.
12
Hoskins v. State, 102 A.3d 724, 729 (Del. 2014) (stating that the law of the case doctrine is not
an “absolute bar to reconsideration of a prior decision” and should give way when the decision
establishing it is “clearly wrong” or “produces an injustice”).
5
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

13
Restatement (Second) of Agency § 228(1)(d) (1958).
14
See Wilson v. Joma, Inc., 537 A.2d 187 (Del. 1988); Coates v. Murphy, 270 A.2d 527 (Del.
1970); Draper, 181 A.2d 565; Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1200
(Del. 2015) (“In determining whether tortious conduct is within the scope of employment,
Delaware courts will consider the factors outlined in the Restatement (Second) of Agency . . . .”)
(citing Restatement (Second) of Agency § 228 (1958)).
15
Restatement (Second) of Agency § 219 cmt. e (1958).
6
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

16
Id. § 219(2)(c); id. § 219(2)(d).
17
Id. § 228(1); id. § 219 (“A master is not subject to liability for the torts of his servants acting
outside the scope of their employment, unless . . . .”) (emphasis added); see also Doe v. Forrest,
853 A.2d 48, 56 (Vt. 2004) (describing § 219(2)(d) as “an exception to our scope-of-employment
rule”).
18
Prayer Conf. Tr. (Jan. 19, 2017), at 34:1–10.
7
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.

19
11 Del. C. § 1257(b) (“A person is guilty of resisting arrest when the person intentionally
prevents or attempts to prevent a peace officer from effecting an arrest or detention of the person
or another person or intentionally flees from a peace officer who is effecting an arrest or detention
of the person.”).
8
 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

20
Doe v. State, 76 A.3d 774, 775 (Del. 2013).
9
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

21
Id. Doe’s estate was substituted as the plaintiff in the case on April 13, 2015. This opinion
continues to refer to the plaintiff‒appellant as “Doe.” Order Substituting Doe’s Estate for Doe as
Plaintiff, Doe v. Giddings, 2014 WL 4100925 (Del. Super. July 29, 2014).
10
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

22
Doe v. Giddings, 2012 WL 1664234 (Del. Super. May 7, 2012).
23
Compl. ¶ 5, Doe v. Giddings, 2012 WL 1664234 (Del. Super. May 7, 2012).
24
Id. ¶ 7.
25
Id. ¶¶ 9, 13; App. to Opening Br. at 470 (Jury Instructions); id. at 471. Doe’s original complaint
also alleged that the Officer raped her, but this count was not presented to the jury.
11
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

26
Defendant State of Delaware’s Motion for Summary Judgment at 2, Doe v. Giddings, 2012 WL
1664234 (Del. Super. May 7, 2012) [hereinafter “State’s 2012 Motion for Summary Judgment”].
27
Restatement (Second) of Agency § 228(1) (1958).
28
State’s 2012 Motion for Summary Judgment, at 2.
29
Id.
12
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

30
Restatement (Second) of Agency § 219 (1958).
13
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

31
Plaintiff’s Response to Defendant State of Delaware’s Motion for Summary Judgment at 1, Doe
v. Giddings, 2012 WL 1664234 (Del. Super. May 7, 2012) [hereinafter “Doe’s Response to the
State’s 2012 Motion for Summary Judgment”].
32
Doe v. Giddings, 2012 WL 1664234, at *3 (Del. Super. May 7, 2012) (“Common sense dictates
that sexually assaulting a crime suspect, a clear abuse of police authority under any circumstances,
is not incidental to the arrest and detention of a suspect.”).
33
Id. at *4 (“A crime, such as the one allegedly committed by [the Officer] against the plaintiff, is
so outrageous, and such a clear abuse of [his] position and authority as an officer of the peace, that
it would be unreasonable as a matter of law for a jury to find that [he] acted in the scope of his
employment.”).
14
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

34
Id.
35
Doe’s Opening Br. at 12–13, Doe v. State, 76 A.3d 774 (Del. 2013) (emphasis added).
36
Id. at 15.
15
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

37
Id. at 14.
38
Id. at 18 (quoting Mary M. v. City of L.A., 814 P.2d 1341 (Cal. 1991)).
39
Id. at 18–19 (citing Applewhite v. City of Baton Rouge, 380 So.2d 119 (La. App. 1979); St. John
v. United States, 240 F.3d 671 (8th Cir. 2001); Moor v. Hosier, 43 F.Supp.2d 978 (N.D. Ind. 1998);
Battista v. Cannon, 934 F.Supp. 400 (M.D. Fla. 1996); Carney v. White, 843 F. Supp. 462 (E.D.
Wis. 1994), aff’d sub nom. Carney v. Vill. of Darien, 60 F.3d 1273 (7th Cir. 1995); Ingram v. City
of Indianapolis, 759 N.E.2d 1144 (Ind. Ct. App. 2001)).
40
Id. at 22 (citing Doe v. Forrest, 853 A.2d 48 (Vt. 2004)).
41
Doe v. State, 76 A.3d 774, 777 (Del. 2013).
16
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

42
Draper v. Olivere Paving & Const. Co., 181 A.2d 565 (Del. 1962).
17
 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

43
Doe v. State, 76 A.3d 774, 777 (Del. 2013) (citations omitted).
44
Draper, 181 A.2d 567.
45
Restatement (Second) of Agency § 236 cmt. b (1958) (“The fact that the predominant motive of
the servant is to benefit himself or a third person does not prevent the act from being within the
scope of employment. If the purpose of serving the master’s business actuates the servant to any
appreciable extent, the master is subject to liability if the act otherwise is within the service . . . .”).
18
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

46
Id. § 245 cmt. c (“To create liability for a battery by a servant upon a third person, the
employment must be one which is likely to bring the servant into conflict with others. . . . [T]he
employment of servants to guard or to recapture property, to take possession of land, or to deal
with chattels which are in the possession of another, is likely to lead to altercations, and the master
may become liable, in spite of instructions that no force shall be exerted against the person of the
possessor.”); id. § 229 cmt. b (“An assault by one employed to recapture a chattel, while entirely
different from the act which he was employed to do, which was merely to take possession of the
chattel, may be within the scope of employment, unless committed with such violence that it bears
no relation to the simple aggression which was reasonably foreseeable.”).
19
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.

47
Id. § 228 cmt. d (“The question of whether or not the act done is so different from the act
authorized that it is not within the scope of the employment is decided by the court if the answer
is clearly indicated; otherwise it is decided by the jury.”).
48
Id. § 228(1)(d).
49
Doe v. State, 76 A.3d 774, 777 (Del. 2013) (citations omitted).
20
 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

50
Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004).
51
18 Del. C. § 6511.
52
Defendant State of Delaware’s Motion for Summary Judgment 1, Doe v. Giddings, 2014 WL
4100925 (Del. Super. July 29, 2014) [hereinafter “State’s 2014 Motion for Summary Judgment”].
53
Motion to Dismiss [the Officer’s Estate] ¶ 2–3, Doe v. Giddings, 2015 WL 1566597 (Del. Super.
Apr. 8, 2015).
21
 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

54
Plaintiff’s Motion for Partial Summary Judgment or Partial Adjudication Pursuant to Superior
Court Civil Rule 56(a) 3, Doe v. Giddings, 2014 WL 4100925 (Del. Super. July 29, 2014) (citations
omitted) (emphasis added) [hereinafter “Doe’s 2014 Motion for Summary Judgment”].
55
Id. at 4–5.
56
Id. at 6; id. at Ex. E.
22
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

57
Doe v. Giddings, 2014 WL 4100925, at *7 (Del. Super. July 29, 2014).
58
Doe v. Giddings, 2015 WL 1566597, at *1 (Del. Super. Apr. 8, 2015).
59
Doe v. Giddings, 2014 WL 4100925, at *8 (Del. Super. July 29, 2014).
23
“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

60
Doe’s Opening Br. at 36, Sherman v. State, 133 A.3d 971 (Del. 2016).
61
Doe v. State, 76 A.3d 774, 777 (Del. 2013) (citations omitted).
62
Doe’s Opening Br. at 32, Sherman v. State, 133 A.3d 971 (Del. 2016) (“There is no issue of
disputed fact as to element three since the only evidence that [the Officer’s] wrongful act took
place during the course of an arrest and by means of abuse of the power of an arrest.”).
63
Doe v. State, 76 A.3d 774, 777 (Del. 2013) (citations omitted).
24
 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

64
Doe’s Opening Br. at 31‒33, Sherman v. State, 133 A.3d 971 (Del. 2016) (emphasis added).
65
Id. at 34 (emphasis added) (“Either something is foreseeable or it is not if the facts are
undisputed.”).
25
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

66
Id.
67
Id. at 34 (“Doubtless, the State will argue that Colonel M[a]cLeish had no reason to believe that
[the Officer] would abuse a detainee. But this is not a negligence but a respondeat claim and the
foreseeability issue focuses not on [the Officer’s] behavior but on that of police officers (and not
just Delaware State Troopers) as a whole.”); State’s Answering Br. at 32, Sherman v. State, 133
A.3d 971 (Del. 2016) (“The State also has identified former supervisors of [the Officer] who
testified that they had no knowledge of any discipline problems involving any allegations of sexual
misconduct or sexual harassment by [the Officer].”).
68
Sherman v. State, 133 A.3d 971, 979 (Del. 2016) (“Doe did not file a suit against [the Officer’s
estate] until August 18, 2010, nearly fifteen months after [his] death. However, [the Officer’s
estate] did not file its motion to dismiss until July 2014. Thus, Doe contends that § 2102 does not
apply because [the Officer’s estate] waived its protections by waiting so long to file its motion.
The Superior Court disagreed with Doe, and held that [as a non-claim statute] § 2102’s protections
cannot be waived. . . . [W]e hold that § 2102 is a non-claim statute. Accordingly, the Superior
Court correctly granted [the Officer’s estate’s] motion to dismiss under § 2102 despite [the
estate’s] delay in bringing that motion.”).
26
 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.

27
 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;

28
 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:

69
App. to Opening Br. at 472–73 (Jury Instructions).
70
Prayer Conf. Tr. (Jan. 19, 2017), at 41:2–7.
71
Id. at 41:19–23.
29
 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:

72
Id. at 52:17–22.
73
Id. at 11:4–6.
74
Sherman v. State, C.A. No. N1-0C-08-178, at 13 (Del. Super. May 8, 2017).
75
Prayer Conf. Tr. (Jan. 19, 2017), at 13:4–7.
30
 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

76
App. to Opening Br. at 474 (Jury Instructions).
77
Pretrial Conf. Tr. (Aug. 8, 2016), at 82:4–6, 82:17–20.
78
Prayer Conf. Tr. (Jan. 19, 2017), at 32:18–19, 34:19–20.
79
App. to Opening Br. at 212 (Motion to Bar Any Evidence, Claim or Argument that Plaintiff
Consented to Sexual Contact with [the Officer]).
31
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

80
Prayer Conf. Tr. (Jan. 19, 2017), at 34:1–10.
81
App. to Opening Br. at 470‒71 (Jury Instructions) (emphasis added).
82
State’s Closing Arg. Tr. (Jan. 19, 2017), at 4:13‒18.
83
App. to Opening Br. at 134 (Complaint and Warrant for [the Officer]).
84
App. to Answering Br. at 179 (Jury Verdict Form).
32
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

85
Sherman v. State, C.A. No. N1-0C-08-178, at 2 (Del. Super. May 8, 2017).
86
Id. at 11.
87
Id. at 13.
88
Id. at 13–14.
33
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

89
Doe’s Opening Br. at 6–7.
90
Id. at 19–20, 24–25, 33–34.
91
State’s Answering Br. at 12, 21, 37.
34
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.

92
One of our respected colleagues in dissent suggests that the State did not “by express terms
charge that the sex occurred without [Doe’s] consent.” Dissent at 9 (Vaughn, J., dissenting). He
is correct that the “express terms” of the State’s charges (which included Sexual Exploitation) do
not literally state that the coerced sex occurred without the victim’s consent. But, as we will
discuss later, sex “without consent,” as defined by the section of our criminal law defining sex
crimes, includes sex to which “the defendant compelled the victim to submit by any act of coercion
as defined in § 791,” and § 791 defines the crime of coercion to include the scenario in which a
public servant uses or abuses their position “by performing some act within or related to the
defendant’s official duties, or by failing or refusing to perform an official duty in such manner as
to affect some person adversely.” 11 Del. C. §§ 761, 791. The State charged the Officer with
committing Sexual Extortion by intentionally compelling or inducing Doe to engage in oral sex by
instilling a fear in her that “if the sexual act [wa]s not performed,” the Officer would have “take[n]
the victim before the Court to appear on a capias.” App. to Opening Br. at 134 (Complaint and
Warrant for [the Officer]). Thus, in substance, the State charged the Officer with having threatened
to “perform an official duty in such manner as to affect some person adversely” and thereby
coercing oral sex from Doe. For this reason, under the State’s Sexual Exploitation charge and §
761, the oral sex at issue here was by definition non-consensual. 11 Del. C. §§ 761, 791.
35
 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.

93
Oral Argument at 1:39–2:25, Sherman v. Dep’t. of Pub. Safety (No. 206, 2017),
https://livestream.com/accounts/5969852/events/8066882/videos/170525984/player (Doe’s
Counsel: “The Court held that law of the case tracked back to [Doe I]. I was a little bit at a loss
because I really thought it was a summary judgment case. . . . But be that as it may, we were
dealing with law of the case, and I did not see that it would be appropriate to raise that issue
again.”).
94
Doe’s Opening Br. at 22, Doe v. State, 76 A.3d 774 (Del. 2013).
95
Doe v. State, 76 A.3d 774, 777 (Del. 2013) (citations omitted).
36
 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.

96
Doe’s Supp. Br. at 5.
97
State’s Supp. Br. at 5, 7–8.
37
 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,”

98
Gannett Co. v. Kanaga, 750 A.2d 1174, 1181 (Del. 2000) (holding that the law of the case
doctrine “is not an absolute bar to reconsideration of a prior decision . . . . [that] produces an
injustice”).
38
“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

99
State’s Supp. Br. at 5.
100
Doe v. State, 76 A.3d 774, 776 (Del. 2013).
101
Restatement (Second) of Agency § 228 cmt. d (1958); see generally Hyman Reiver & Co. v.
Rose, 147 A.2d 500, 503 (Del. 1958) (“[W]here the facts are such that reasonable minds can draw
but one conclusion, it is the duty of the Court to decide the question and not to require the jury to
deliberate upon evidence from which they can draw but one possible conclusion.”) (citations
omitted).
39
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

40
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

102
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
103
We note that the Superior Court erred in including § 228’s first two prongs in its scope of
employment instruction, despite the fact that Doe I already held that those prongs were satisfied
as a matter of law. Doe v. State, 76 A.3d 774, 777 (Del. 2013) (“[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.”).
104
See Zimmerman v. State, 565 A.2d 887, 890 (Del. 1989) (“The primary purpose of jury
instructions is to define with substantial particularity the factual issues, and clearly to instruct the
jury as to the principles of law which they are to apply in deciding the factual issues involved in
the case before them.”); Herring v. State, 805 A.2d 872, 876 (Del. 2002) (“Trial judges may
41
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

properly combine a statement regarding a fact in issue with a declaration of law.”); 9A CHARLES
A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2556 (2d ed. 1995) (“It
is the inescapable duty of the trial judge to instruct jurors, fully and correctly, on the applicable
law of the case, and to guide, direct, and assist them toward an intelligent understanding of the
legal and factual issues involved in their search their truth.”).
42
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

105
INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, EXECUTIVE GUIDE: ADDRESSING SEXUAL
OFFENSES AND MISCONDUCT BY LAW ENFORCEMENT 4 (June 2011) (“Further complicating a full
understanding of the scope of the [police sexual misconduct] problem is due in part to the
reluctance of victims to report to authorities.”); Peter B. Kraska & Victor E. Kappeler, To Serve
and Pursue: Exploring Police Sexual Violence Against Women, 12 JUSTICE QUARTERLY 85, 92
(1995) (“Victims of sexual violence in general have few incentives to pursue a formal complaint,
as well as many disincentives including the fear of being blamed for the incident and the fear of
not being believed. Not being believed and the fear of depersonalizing and humiliating
institutional procedures and interpersonal hassles to which victims of sexual violence are
frequently subject may be intensified when the offender is a police officer. In short, the ‘blue wall
of silence’ and the barriers to reporting combine to form a double bind of secrecy that makes data
virtually unavailable to researchers.”); Cara E. Trombadore, Police Officer Sexual Misconduct: An
Urgent Call to Action in a Context Disproportionately Threatening Women of Color, 32 HARV. J.
RACIAL & ETHNIC JUST. 153, 159 (2016) (“Despite the ‘bad apple’ trope used to distance law
enforcement agencies from such officers, evidence suggests that this misconduct is not rooted in
rogue individuals, but in systemic cultures of mismanagement and adherence to what some refer
to as the ‘blue wall of silence.’”).
106
One of our good friends in dissent is concerned that we are acting as a “superlegislature” and
overstepping our bounds by reversing our prior precedents and establishing a new approach to our
common law. Dissent at 19 (Valihura, J., dissenting). Our colleague would prefer that we commit
to inertia, and impose upon our General Assembly to fix any problems in our prior rulings. In
cases involving statutory remedies, such as appraisal in corporate law or workers’ compensation,
we should of course be more reluctant to divert from prior interpretations of a statute, if that
interpretation has been the subject of reliance for several years and the General Assembly has not
43
 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

acted to override that interpretation. But it is the duty of the courts to ensure that the common law
is as fair and efficient as humanly possible, taking into account evolving societal conditions and
the problems created by past rulings. See generally OLIVER WENDELL HOLMES, THE COMMON
LAW (1881). We should not adhere to all past common law precedent until such time as the
General Assembly enacts a statute overriding a judicial precedent addressing a subject traditionally
governed by judicially-determined common law, especially given the General Assembly’s
reluctance to intrude in areas of law it has chosen to leave to the common law to address.
107
Draper, 181 A.2d 567.
108
Doe v. State, 76 A.3d 774, 777 (Del. 2013) (citations omitted).
44
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

109
Restatement (Second) of Agency § 245 cmt. a (1958) (“[T]he liability of the principal depends
fundamentally upon the likelihood of a battery or other tort in view of the kind of result to be
accomplished, the customs of the enterprise and the nature of the persons normally employed for
doing the work. . . . [W]hether or not it is in the scope of the employment of a teller in a bank to
interfere in a fight between two customers, it normally is within the scope of employment of an
employee of a tavern to interfere in the fighting between two inebriates. In the latter case, as also
where a custodian is protecting property, the master if responsible for the use of somewhat more
than the appropriate amount of force.”).
110
Id. § 228(1)(c).
45
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

111
As the Restatement provides, “[t]o be within the scope of employment, conduct must be of the
same general nature as that authorized, or incidental to the conduct authorized.” Id. § 228(2).
Even authorized conduct must be done “in some part for the purpose of giving service to the
master” to satisfy § 228’s Motivation Prong. Id. § 228 cmt. a. And unauthorized conduct such as
the sexual misconduct at issue here must be “subordinate to or pertinent to an act which the servant
is employed to perform,” and it still “must be within the ultimate objective of the principal” in
order to fall within the scope of employment. Id. § 229 cmt. b; id. § 245 cmt. f (an employer is
only relieved from liability when “the servant has no intent to act on his master’s behalf”); see id.
§ 229 cmt. a (comparing a situation where a janitor who is charged with preventing intrusions puts
broken glass on a wall to prevent children from climbing it for the purpose of excluding them, and
a situation where the janitor does so because he dislikes one of the children and wants to punish
him, and finding that the former falls within the scope of employment and the latter does not,
because the latter action was not motivated by an intent to serve the employer).
112
E.g., Ho-Ching v. City & Cty. of Honolulu, 2009 WL 1227871, at *13 (D. Haw. Apr. 29, 2009)
(applying § 228 and its Motivation Prong and finding that “[i]f Moniz did commit a sexual assault
or sexual harassment, it was not the conduct for which he was hired as a police office[r] and by no
means served the interests of Defendant. Thus . . . Moniz’s actions . . . [were] clearly outside of
the course and scope of his employment by HPD”); Poehl v. Randolph, 2006 WL 1236838, at *10
(E.D. Mo. May 3, 2006), aff’d, 276 Fed. Appx 540 (8th Cir. 2008) (applying a Missouri law similar
to § 228 and finding that “[h]ere, the sexual misconduct that forms the basis of Plaintiff’s
allegations of assault and battery is not within the scope of employment of a police officer. Further,
Defendant Randolph’s alleged sexual assault of Plaintiff was not based on an intent to perform
Defendant City’s business or further its purposes, but was instead done to fulfill his own personal
purpose”); see generally Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48
VAL. U. L. REV. 133, 146 (2013) (“Some courts have not been shy about expressing their ‘sex is
different’ approach, flatly stating that sexual misconduct falls outside the course and scope of
employment. For these courts, the possibility that the employee was motivated by sexual desire,
gratification, or lust marks it as qualitatively different from other tort cases, even other intentional
tort cases.”) (internal citations and quotations omitted).
113
Although the facts of this case do not satisfy § 228’s Motivation Prong, there arguably could
be other fact patterns that present instances in which an employee’s sexual assault was committed
out of a desire to serve his employer. Regrettably, there have been cases in which intelligence
agencies, military officers, and police of certain regimes have used sexual assault and humiliation
as interrogation tools to extract information for their employers’ benefit. See, e.g., Int’l Criminal
46
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

Tribunal for the Former Yugoslavia: Prosecutor v. Furundzija, 38 I.L.M. 317 (1999), 351–52
(“Rape is resorted to either by the interrogator himself or by other persons associated with the
interrogation of a detainee, as a means of punishing, intimidating, coercing or humiliating the
victim, or obtaining information, or a confession, from the victim or a third person.”).
114
Compl. ¶ 9, Doe v. Giddings, 2012 WL 1664234 (Del. Super. May 7, 2012); Restatement
(Second) of Agency § 228(1)(d) (1958).
115
Doe v. State, 76 A.3d 774, 777 (Del. 2013) (citing Red Elk v. United States, 62 F.3d 1102 (8th
Cir. 1995)).
47
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]

116
Other jurisdictions have found police sexual misconduct foreseeable by an assessment of the
general nature of the profession. Red Elk on Behalf of Red Elk v. United States, 62 F.3d 1102,
1107‒08 (8th Cir. 1995) (“In our view it was also foreseeable that a male officer with authority to
pick up a teenage girl out alone at night in violation of the curfew might be tempted to violate his
trust. . . . For sexual misconduct on occasion by some officers not to be sufficiently foreseeable to
impose vicarious liability would suggest that those in charge are blind to modern reality. It is
neither so startling nor so unfair as to permit the government in these circumstances to escape
liability.”); Mary M. v. City of L.A., 814 P.2d 1341, 1350 (Cal. 1991) (“The precise circumstances
of the assault need not be anticipated, so long as the risk is one that is reasonably foreseeable.
Sexual assaults by police officers are fortunately uncommon; nevertheless, the risk of such tortious
conduct is broadly incidental to the enterprise of law enforcement, and thus liability for such acts
may appropriately be imposed on the employing public entity.”).
117
Red Elk, 62 F.3d 1107.
48
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

118
Doe’s 2014 Motion for Summary Judgment (citations omitted), at Exs. E, F; Doe’s Response
to the State’s 2012 Motion for Summary Judgment, at Exs. B, B-1. One of our dissenting friends
notes that this evidence was not in the trial record. Dissent at 5 (Vaughn, J., dissenting). But it
was in the record on both the State’s 2012 motion for summary judgment, and Doe’s 2014 motion
for summary judgment on the issue of liability, in which Doe argued that foreseeability was
established as a matter of law, and was denied a favorable ruling despite the absence of
countervailing evidence.
119
Doe’s 2014 Motion for Summary Judgment, at 4–5.
120
E.g., App. to Opening Br. at 384 (Colonel MacLeish Testimony Tr.) (Q: “Is it ever made known
to people when they are hired by the Delaware State Police that . . . no officer is supposed to ever
cross the line and sexually assault or abuse someone in their custody?” A: “Our process, part of
the training, ongoing training that takes place in the academy, there is an interaction with public
and individuals and the proper manner in which you do so. You are told whenever you transport
a person of the opposite sex, to call in your mileage. So your mileage is recorded, and typically,
that is one of those things that is shared, the reason why you do not cross those lines.”).
121
Associated Press, Hundreds of Officers Lose Licenses Over Sex Misconduct (Nov. 1, 2015),
https://apnews.com/fd1d4d05e561462a85abe50e7eaed4ec (reviewing police department records
in 41 states and finding that “about 1,000 officers . . . lost their badges [between 2009 and 2014]
for rape, sodomy and other sexual assault; sex crimes that included possession of child
pornography; or sexual misconduct such as propositioning citizens or having consensual but
prohibited on-duty intercourse.”); Buffalo News, Abusing the Law,
http://projects.buffalonews.com/abusing-the-law/data.html (2016) (database of over “700 credible
cases of sexual misconduct from law enforcement personnel over a 10-year period”); PHILIP M.
STINSON ET AL., POLICE SEXUAL MISCONDUCT: A NATIONAL SCALE STUDY OF ARRESTED
49
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

OFFICERS (Bowling Green State Univ., Crim. Just. Faculty Pub.) (2014) (analyzing 548 cases that
resulted in the officer’s arrest for sex-related crimes between 2005 and 2007); Peter B. Kraska &
Victor E. Kappeler, To Serve and Pursue: Exploring Police Sexual Violence Against Women, 12
JUSTICE QUARTERLY 85, 103 (1995) (“We found an obvious pattern when reviewing the rape cases
cited here. The incidents resemble the [scenario whereby a police officer] pulls over a female
citizen for some traffic violation (generally driving under the influence), threatens her with arrest,
and takes her to a secluded location for some outwardly legitimate reason [and then] the police
officer rapes the victim.”).
122
See the sources cited in note 105.
123
INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, EXECUTIVE GUIDE: ADDRESSING SEXUAL
OFFENSES AND MISCONDUCT BY LAW ENFORCEMENT 6 (June 2011) (“Law enforcement leaders
should directly address the problem of sexual misconduct by instituting a zero-tolerance standard
and demonstrating that allegations will be promptly and thoroughly investigated. Any meaningful
policy addressing sexual misconduct and offenses should state that an abuse of authority is grounds
for disciplinary action, up to and including termination. In keeping with efforts undertaken by the
corrections field, local law enforcement executives should establish an agency wide culture of
accountability and seek commitments from key stakeholders, including their governing body,
police unions and their members, to support this standard.”).
124
Id. at 4; see also PHILIP M. STINSON ET AL., POLICE SEXUAL MISCONDUCT: A NATIONAL SCALE
STUDY OF ARRESTED OFFICERS (Bowling Green State Univ., Crim. Just. Faculty Pub.) (2014), at 2
(“Police work is conducive to sexual misconduct. The job affords unique opportunities for rogue
police officers to engage in acts of sexual deviance and crimes against citizens they encounter.”).
50
 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

125
Doe v. Giddings, 2012 WL 1664234, at *4 (Del. Super. May 7, 2012).
51
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

126
Restatement (Second) of Agency § 219 cmt. e (1958).
127
Id. § 228 cmt. a (“In addition, a master may be liable if a servant speaks or acts, purporting to
do so on behalf of his principal, and there is reliance upon his apparent authority or he is aided in
accomplishing the tort by the existence of the agency relation. See Comment e on § 219 for
illustrations.”).
52
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).

128
Restatement (Second) of Agency § 219(2)(d) (1958); Doe v. Forrest, 853 A.2d 48 (Vt. 2004).
129
Restatement (Second) of Agency § 219(2)(c) (1958); Cox v. Evansville Police Dep’t, 84 N.E.3d
678 (Ind. Ct. App. 2017). Although Cox does not directly cite to § 219(2)(c), it still applies the
exception through reference to Illinois precedent recognizing the non-delegable duty exception to
respondeat superior’s scope of employment requirement under the Restatement (Second) of
Agency. Stropes by Taylor v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244,
250 (Ind. 1989) (holding that “[w]here an employer has assumed a non-delegable duty [under
§ 214 of the Restatement (Second) of Agency (1958)] to protect a person and his employee inflicts
injury on that person, the doctrine of respondeat superior will not interdict the imposition of
liability on the employer even if the wrongful act was outside the scope of employment.”).
130
In its supplemental briefing, the State argues that this Court should not apply § 219 because the
Restatement (Third) of Agency “does not contain the provisions of Restatement (Second) of
Agency 219,” and that instead we should apply the Restatement (Third)’s test for scope of
employment:

An employee acts within the scope of employment when performing work assigned
by the employer or engaging in a course of conduct that is subject to the employer’s
control. An employee’s act is not within the scope of employment when it occurs
within an independent course of conduct not intended by the employee to serve any
purpose of the employer.

State’s Supp. Br. at 16; Restatement (Third) of Agency § 7.07 (2006). But we decline to apply the
Restatement (Third) here because our State has embraced the Restatement (Second) of Agency,
and § 228 in particular, for decades now, and the § 228 test works well to fairly determine when
respondeat superior liability is appropriate. Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d
1187, 1200 (Del. 2015); Wilson v. Joma, Inc., 537 A.2d 187 (Del. 1988); Coates v. Murphy, 270
A.2d 527 (Del. 1970). We are therefore reluctant to abandon it. We also note that the Restatement
(Third)’s Reporter’s Notes indicate that jurisdictions “are not in accord on the appropriate standard
for vicarious liability when an employee commits an intentional tort involving sexual misconduct
in connection with the employee’s work,” and that some “cases [continue to] analyze employee
sexual misconduct using a standard based on [the Restatement (Second) of Agency § 219(2)(d)].”
Restatement (Third) of Agency § 7.05 Reporter’s Note e (2006). Not only that, but we also note
that the Restatement (Third) appears to otherwise recognize the continuing vitality of § 219(2)(c)
and (d) and that the theories underlying them are embedded in the broader treatment of apparent
53
 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

authority under the Restatement (Third). Id. § 7.08 (“Section 219(2)(d) concludes with a further
general basis for an employer’s vicarious liability, which is whether an employee ‘was aided in
accomplishing the tort by the existence of the agency relation.’ This Restatement does not include
‘aided in accomplishing’ as a distinct basis for an employer’s (or principal’s) vicarious liability.
The purposes likely intended to be met by the ‘aided in accomplishing’ basis are satisfied by a
more fully elaborated treatment of apparent authority and by the duty of reasonable care that a
principal owes to third parties with whom it interacts through employees and other agents. See
§ 7.05.”); id. (“A principal is subject to vicarious liability for a tort committed by an agent in
dealing or communicating with a third party on or purportedly on behalf of the principal when
actions taken by the agent with apparent authority constitute the tort or enable the agent to conceal
its commission.”); id. § 7.05 Reporter’s Note b (“Apparent authority rarely serves as a basis for
liability when an employee or agent commits an intentional physical tort. One formal possibility
is suggested by Restatement Second, Agency § 219(2)(d), which provides that ‘[a] master is not
subject to liability for the torts of his servants acting outside the scope of their employment, unless:
. . . 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.’”); id. § 7.06 (“A principal required . . . by law to protect another cannot avoid liability
by delegating performance of the duty, whether or not the delegate is an agent.”).
131
Restatement (Second) of Agency § 219(2)(d) (1958).
132
Compl. ¶ 7, Doe v. Giddings, 2012 WL 1664234 (Del. Super. May 7, 2012).
133
See, e.g., State’s Answering Br. at 7, Doe v. State, 76 A.3d 774 (Del. 2013) (arguing that the
first prong of § 228 (that the conduct needed to be of the kind the Officer was employed to perform)
could not be satisfied by the facts of this case because “Doe testified that [the Officer] was arrested
because ‘he did something he wasn’t supposed to do.’ Doe further testified that she knew the
54
 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

police officer had to take her to Court on her outstanding capias. Doe also testified that she knew
the officer was breaking the law when he asked her to engage in oral sex.”).
134
E.g., STATE OF DELAWARE JUSTICE OF THE PEACE COURTS, LEGAL MEMORANDUM NO. 11-294:
BAIL PROCEDURES & GUIDELINES 15‒16 (Nov. 18, 2011) (“A justice of the peace may consider
factors such as . . . a police officer’s verbal statement to the Court, as aggravating or mitigating
factors when making the decision on the amount of bail.”); id. at 10 (stating that, when evaluating
whether the accused presents a flight risk, the magistrate can consider whether the accused
“indicated to police that he or she will not appear as directed”).
135
Here, because Doe had an outstanding capias, the Officer did not have that option under State
Police policy.
136
App. to Opening Br. at 100 (Interview of [the Officer]) (“Q. [H]er allegation is that she
performed oral sex on you in your police car in the front seat . . . . A. No.”).
55
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

137
Id. at 60 (Interview of [Doe]) (“A. But when he made me do what I did . . . [,] I made sure he
squirted all in my jacket.”); App. to Opening Br. at 120 (Second Interview of [the Officer]) (“I
didn’t tell her I was going to do anything for her . . . . She just started coming on to me. . . [and] I
made the mistake of engaging into it.”).
138
For cases in which courts have used the principles of authority underlying § 219(2)(d) to hold
employing police agencies liable for their officers’ sexual misconduct, see White v. Cty. of Orange,
212 Cal. Rptr. 493, 496 (Ct. App. 1985) (asking whether a County was liable for its police officer’s
sexual assault of a detainee and finding that “[t]he use of authority is incidental to the duties of a
police officer. The County enjoys tremendous benefits from the public’s respect for that authority.
Therefore, it must suffer the consequences when the authority is abused”); Mary M. v. City of L.A.,
814 P.2d 1341, 1352 (Cal. 1991) (“Our society has entrusted police officers with enforcing its laws
and ensuring the safety of the lives and property of its members. In carrying out these important
responsibilities, the police act with the authority of the state. When police officers on duty misuse
that formidable power to commit sexual assaults, the public employer must be held accountable
for their actions.”); Applewhite v. City of Baton Rouge, 380 So.2d 119, 122 (La. Ct. App. 1979)
(finding a city‒defendant liable for its police officer’s sexual assault of a detainee because “where
it is found that a law enforcement officer has abused the ‘apparent authority’ given such persons
to act in the public interest, their employers have been required to respond in damages. This is
particularly true where, as here, the officer is on duty”); see also Costos v. Coconut Island Corp.,
137 F.3d 46, 50 (1st Cir. 1998) (“[D]efendants 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.”).
56
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

139
Doe v. Forrest, 853 A.2d 48, 67 (Vt. 2004).
140
W. By & Through Norris v. Waymire, 114 F.3d 646, 649, 652 (7th Cir. 1997) (internal citations
omitted) (emphasis added) (but finding that “the doctrine of respondeat superior is not available
to a plaintiff in a section 1983 suit”).
141
White v. Cty. of Orange, 166 Cal. App. 3d 566, 571 (Ct. App. 1985).
142
Id.
57
 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

143
See Doe v. City of Chi., 360 F.3d 667, 671 (7th Cir. 2004) (“The situation of a police officer,
however, is significantly different from that of a meter reader. The officer is armed, has authority
to arrest that is considerably broader than the authority of a private person to make a ‘citizen’s
arrest,’ has access to all sorts of personal information, is an authority figure trained to develop and
project an intimidating aura, and may seem to be above the law (‘I am 911’).”).
144
Newman v. State, 942 A.2d 588, 592 (Del. 2008) (quoting Delaware Criminal Code with
Commentary § 1257 (1973)).
145
11 Del. C. § 1257(b).
58
 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

146
State’s Supp. Br. at 14.
147
Faragher v. City of Boca Raton, 524 U.S. 775, 802 (1998).
148
Doe v. Forrest, 853 A.2d 48, 64–65 (Vt. 2004) (quoting Restatement (Second) of Agency § 219,
cmt. e (1958)).
149
Ocana v. Am. Furniture Co., 91 P.3d 58, 71 (N.M. 2004) (adopting § 219(2)(d) and holding
that “the question that we must decide is whether Ocana presented sufficient evidence showing
that Kaminski was aided by his status as her supervisor in committing his alleged torts”); Spurlock
v. Townes, 368 P.3d 1213, 1217 (N.M. 2016) (“While Ocana involved an employee’s claims of
sexual harassment by her supervisor, we adopted the aided-in-agency theory in our consideration
59
 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

of the plaintiff’s common-law claims for the intentional torts of assault, battery, and intentional
infliction of emotional distress, and we did not limit the rule to the sexual harassment context.”).
150
Restatement (Second) of Agency § 219(2)(d) (1958).
151
Id. § 219(2)(c).
152
Id. § 245 cmt. g.
60
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

153
Delaware has long-recognized “common carrier” exception to the scope of employment
requirement. E.g., Pennewill v. Cullen, 1849 WL 713 (Del. Super. Oct. 1849). A common carrier
offers “transport to freight or passengers for a fee” and in doing so undertakes a special non-
delegable duty to ensure its cargo safe passage. Common Carrier, Black’s Law Dictionary (10th
ed. 2014). And “[t]he liability of a common carrier is that of an insurer against every thing except
inevitable accident, usually called the act of God; public enemies, and the plaintiff’s own default.”
Pennewill, 1849 WL 713, at *3.
154
Cox v. Evansville Police Dep’t, 84 N.E.3d 678, 687 (Ind. Ct. App. 2017); id. at 690 (“[The
arrestee] was under arrest. She was also extremely intoxicated, to a point that she was slipping in
and out of consciousness and the hospital was reluctant to discharge her. [The] Officer [] was
ostensibly transporting her to lockup for six hours of medical observation, and she was barefoot
and in handcuffs in the back of his marked police vehicle when he pulled her out to rape her. She
was quite clearly wholly dependent on the officer for her safety and survival and had no ability to
control her environment or protect herself from harm. Under these circumstances, we have little
difficulty concluding that, at the time of the sexual assault, [the arrestee] had surrendered her
control and autonomy to [the] Officer []. Consequently, as a matter of law, Fort Wayne owed a
non-delegable duty of care to [the arrestee].”).
155
Id.
61
 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

156
State’s Supp. Br. at 10 (arguing that applying § 219’s exceptions to the scope of employment
requirement in cases like this one “would impose some form of strict liability against local or state
police departments”).
157
Compare Restatement (Second) of Agency § 213 (describing factors for assessing whether an
employer’s conduct was negligent or reckless and should result in direct liability) with id. § 228 (1)
(describing factors for assessing whether an employee’s conduct should result in vicarious liability
for the employer).
62
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

158
Restatement (Second) of Agency § 228 cmt. a (1958) (“In addition, a master may be liable if a
servant speaks or acts, purporting to do so on behalf of his principal, and there is reliance upon his
apparent authority or he is aided in accomplishing the tort by the existence of the agency relation.
See Comment e on § 219 for illustrations.”); id. § 219 cmt. e (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”).
159
The concern we have with using § 228 in isolation from § 219 is illustrated by certain cases in
which courts find police departments liable in sexual assault cases, but do so by reading § 228 or
an equivalent scope-of-employment test elastically, particularly their Motivation Prongs, rather
than by use of an exception to that test. E.g., Doe v. Clavijo, 72 F. Supp. 3d 910, 915 (N.D. Ill.
2014) (purporting to apply § 228’s Motivation Prong where there was no evidence that the sex was
motivated by a desire to serve the police officer’s employer, but still finding that “[a] reasonable
jury could conclude from the allegations in the complaint that the Defendant Officers were acting
within the scope of their employment when they sexually assaulted Plaintiff. The Defendant
Officers were on duty, sitting in their police car, wearing their uniforms, and carrying their
weapons. Further, Plaintiff alleges that she would not have walked over to the Defendant Officers
when they gestured to her, nor would she have gotten into their car, if they were not police
officers”); St. John v. United States, 240 F.3d 671, 677‒78 (8th Cir. 2001) (applying South Dakota
law and acknowledging that “[g]enerally, the act of an employee done to effect some independent
purpose of his own is not within the scope of his employment [under Restatement (Second) of
Agency § 229]” but still finding that an officer’s sexual assault could have fallen within the scope
of employment if he threatened her with an arrest to coerce her into the sex because “[o]nly a
police officer would have the ability to utilize the threat of arrest to coerce a civilian into
unwillingly accompanying him. . . . [T]he effectiveness of Coleman’s threat to arrest St. John
depended entirely upon his ability to fulfill it—an ability within the foreseeable scope of his
employment”); Carney v. White, 843 F. Supp. 462, 479–80 (E.D. Wis. 1994), aff’d sub nom.
Carney v. Vill. of Darien, 60 F.3d 1273 (7th Cir. 1995) (purporting to apply § 228’s Motivation
63
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 Defense

We reach the last contested issue on appeal. As we have noted, when the

Officer was originally confronted with Doe’s complaint, he denied that there was

any sexual contact between them. It was only when he was confronted with the

existence of DNA evidence that he changed his story, which then became that Doe

somehow became amorous with him during the course of the arrest and that he

succumbed to her desire for him. That the State disbelieved the Officer is, Doe

argues, demonstrated by the fact that it charged him with Sexual Extortion.160 That

crime has elements that are inconsistent with the Officer’s version of events: the

Officer must have intentionally compelled Doe to give him oral sex by “instilling in

[her] a fear that if the sexual act [was] not performed” he would take her to court and

Prong where there was no evidence that the sex was motivated by a desire to serve the police
officer’s employer, but still finding there was a “genuine dispute as to” whether the officer’s sexual
assault of an arrestee fell within the scope of his employment because the officer accomplished the
assault “because of his position as [a] police officer and the attendant power such a position
carries”); see also Fearing v. Bucher, 977 P.2d 1163, 1166–67 (Or. 1999) (purporting to apply
§ 228’s Motivation Prong, but still finding that “a jury could infer that the sexual assaults were the
culmination of a progressive series of actions that began with and continued to involve Bucher’s
performance of the ordinary and authorized duties of a priest. . . . [T]he jury also could infer that,
in cultivating a relationship with plaintiff and his family, Bucher, at least initially, was motivated
by a desire to fulfill his priestly duties and that, over time, his motives became mixed”). To our
mind, it is preferable not to succumb to the natural equitable tug of cases like these in order to read
§ 228 as giving rise to respondeat superior liability, but thereby giving an interpretation to § 228
that is at odds with its plain meaning and the official commentary, and also makes it difficult to
apply in other contexts.
160
App. to Opening Br. at 134 (Complaint and Warrant for [the Officer]).
64
she would spend the weekend in jail.161 The other crime that the State charged the

Officer with, Receiving a Bribe, is also inconsistent with the State’s contention that

the oral sex was freely given. Under that charge, the State sought to hold the Officer

criminally liable for “solicit[ing] a personal benefit from another person for having

violated his duty” to bring Doe in on her capias.162

By the time of trial, the Officer was dead and the State’s only evidence in

support of its consent defense was the Officer’s second statement. Because Doe was

also deceased, she was not available to testify in person at trial either. On this record,

and in the face of its inconsistent criminal charges against the officer, the State

insisted on preserving the defense that Doe could have voluntarily consented to the

oral sex, and that if she did, the State was not liable.163 And the Superior Court

rejected Doe’s argument that an arrestee could not consent to sex with her arresting

officer and instead instructed the jury on assault and battery in such a way that

whether the sex was consensual was an issue for “the jury to figure out.”164

We do not agree with the State that, under Delaware law, an arrestee can give

voluntary consent to sex with her arresting officer when she is under arrest. Because

161
Id.
162
Id. The State also charged the Officer with Official Misconduct for failing to take Doe in on
an active capias. Id.
163
Pretrial Conf. Tr. (Aug. 8, 2016), at 79:1–4 (“There’s not a specific statute that governs the
situation that says, as a matter of law, consent is not a defense. So, absent that statute, we think
the general consent instruction should apply.”).
164
Id. at 83:6–7.
65
an arrestee has no right to resist arrest in any manner and because an arresting officer

has discretionary authority that, if used to that effect, can subject an arrestee to time

in jail, the power dynamic between the arresting officer and arrestee is too

imbalanced to allow for voluntary consent. Because of this power imbalance, the

Model Penal Code states that sexual conduct with another person when “the other

person is in custody of law or detained in a hospital or other institution and the actor

has supervisory or disciplinary authority over him” constitutes sexual assault.165

Although Delaware has not adopted that provision of the Model Penal Code,

our Criminal Code does define a sexual act “without consent” as occurring when

“[t]he defendant compelled the victim to submit by any act of coercion,”166 defined

to include threatening to “[u]se or abuse the defendant’s position as a public servant

by performing some act within or related to the defendant’s official duties, or by

failing or refusing to perform an official duty in such manner as to affect some person

adversely” if someone does not comply with a demand.167

The policy rationale for barring consent as a defense to allegations of sexual

misconduct against a police officer is similar to that for criminalizing sex between

an inmate and a corrections officer:

The reason why the federal government and almost every state has laws
banning even ostensibly voluntary sexual contact between inmates and

165
Model Penal Code § 213.4.
166
11 Del. C. § 761.
167
Id. § 791.
66
 prison staff is that prisoners are deemed legally incapable of giving
voluntary consent to sexual contact with their keepers. The motivation
behind these virtually universal statutory rape provisions stems from an
understanding of an inherent power imbalance between guard and
inmate, analogous to the inherent power imbalance between adult and
child.168

It is a Class G felony in Delaware for “an employee working at a detention facility”

to engage in sex “with a person in custody on the premises of a detention facility.”169

Although there is not a Delaware statute declaring sex between an arrestee

and her arresting officer nonconsensual,170 arrestees, like prisoners, surrender their

168
Hannah Brenner et. al., Bars to Justice: The Impact of Rape Myths on Women in Prison, 17
GEO. J. GENDER & L. 521, 546 (2016).
169
11 Del. C. § 1259. In their arguments about consent, the parties cite two United States District
Court for the District of Delaware cases that look to 11 Del. C. § 1259 in their discussions of
whether consent should be a defense to an inmate’s Eighth Amendment claim against a corrections
officer for sexual assault. The cases have opposing outcomes: Carrigan found that consent cannot
be a defense, and Phillips found that it can be. Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del.
1999); Phillips v. Bird, 2003 WL 22953175 (D. Del. Dec. 1, 2003). We agree with Carrigan that:

it is of no import, whether as a factual matter, the Plaintiff invited [the officer] into
her room or initiated the sexual encounter. Even if the Plaintiff did these things
[which the plaintiff contends she did not do], it does not alter [the officer’s] special
responsibilities toward the Plaintiff based on his control and supervision over her.

Carrigan v. Davis, 70 F. Supp. 2d 448, 461 (D. Del. 1999). Phillips distinguished itself from
Carrigan on the grounds that the plaintiff in Phillips conceded that she “voluntarily and willingly”
had sex with the corrections officer, and the court found “absolutely no evidence in the record”
that the “plaintiff engaged in sexual acts with defendant [] against her will, or that a coercive quid
pro quo scheme was in place.” Phillips, 2003 WL 22953175, at *6. But because of the coercive
relationship between an inmate and a prison guard, whereby the inmate may fear saying that the
sex was not consensual for fear of repercussion, we are not persuaded that the inmate’s admission
that the sex was consensual should be taken at face value. And, as a policy matter, even an inmate’s
consent should not waive the corrections officer’s professional responsibility to the inmate to
refrain from engaging in sexual acts with her.
170
New York recently passed such a statute, clarifying that arrestees are incapable of consenting
to sex while under arrest. N.Y. Penal Law § 130.05(3)(j); Luis Sanchez, New York Lawmakers
Pass Bill Banning Police from Having Sex with People in Custody, THE HILL (Mar. 31, 2018),
http://thehill.com/homenews/state-watch/381093-new-york-closes-loophole-allowing-police-to-
67
freedom and safety to the State under our criminal law,171 and are subject to the

coercive authority of the officers holding them in custody. 172 Other states have

passed statutes specifically providing that an arrestee is not in a position to consent

to sex with the officer holding her under arrest.173 We view it as critical that our

have-sex-with-people-in. But thirty-four other states arguably allow consent to be “used as a
defense when a police officer is charged with raping a person in his custody.” Katharine Bodde
& Erika Lorshbough, There’s No Such Thing as “Consensual Sex” When a Person is in Custody,
ACLU (Feb. 23, 2018), https://www.aclu.org/blog/criminal-law-reform/reforming-police-
practices/theres-no-such-thing-consensual-sex-when-person (citing Albert Samaha, This
Teenager Accused Two On-duty Cops of Rape. She Had No Idea the Law Might Protect Them,
BUZZFEEDNEWS (Feb. 7, 2018), https://www.buzzfeed.com/albertsamaha/this-teenager-accused-
two-on-duty-cops-of-rape-she-hadno?utm term=.se4ELg61p#.yrMJag6ke (reviewing all fifty
states’ penal codes, finding that thirty-four states lack a statute like New York’s making sex
between an arresting officer an automatic sex crime (i.e., rape, sexual assault, sexual battery, sexual
misconduct, or sex offense), and counting Delaware in those thirty-four states)); Close the Police
Rape Loophole, N.Y. TIMES (Feb. 12, 2018), https://www.nytimes.com/2018/02/12/opinion/
police-rape-loophole.html (same).
171
11 Del. C. § 1257.
172
See, e.g., Megan Coker, Common Sense About Common Decency: Promoting a New Standard
for Guard-on-Inmate Sexual Abuse Under the Eighth Amendment, 100 VA. L. REV. 437, 443
(2014) (“[T]he coercive environment of imprisonment and the position of power guards enjoy over
inmates suggest inmates cannot really consent to sexual contact with their guards.”).
173
E.g., Ga. Code Ann. § 16-6-5.1 (West) (defining “sexual assault” to include when an “employee
or agent of a law enforcement agency and engages in sexual contact with such other individual
who the actor knew or should have known is being detained by or is in the custody of any law
enforcement agency”); Utah Code Ann. § 76-5-412 (West) (defining “custodial sexual
misconduct” to include sex between a law enforcement officer and an arrestee and classifying the
crime as a third degree felony); Conn. Gen. Stat. Ann. § 53a-71 (West) (defining “sexual assault
in the second degree” to include sexual intercourse when the “other person is in custody of
law . . . and the actor has supervisory or disciplinary authority over such other person”); Fla. Stat.
Ann. § 794.011 (West) (defining “sexual battery” to include “oral, anal, or vaginal penetration”
when “[t]he offender is a law enforcement officer, correctional officer, or correctional probation
officer . . . or any other person in a position of control or authority in a probation, community
control, controlled release, detention, custodial, or similar setting, and such officer, official, or
person is acting in such a manner as to lead the victim to reasonably believe that the offender is in
a position of control or authority as an agent or employee of government”); Ohio Rev. Code Ann.
§ 2907.03 (West) (defining “sexual battery” to include sexual conduct when “[t]he other person is
in custody of law or a patient in a hospital or other institution, and the offender has supervisory or
disciplinary authority over the other person”); Or. Rev. Stat. Ann. § 163.452 (West) (defining
“custodial sexual misconduct,” a class C felony, to include sex with someone “in the custody of a
68
common law of torts, which by definition is a product of judicial decision-making,

recognize the obvious realities set up by our own state criminal laws and the power

they give to officers over those under arrest. For this reason, the “[l]iability of police

departments [for the sexual assaults their officers commit] has been based on the

extraordinary power over, as well as the unique access to citizenry provided by virtue

of the fact that citizens are vulnerable and defenseless when a police officer is the

tortfeasor.”174

Of course, we recognize that there could be cases where an arrestee proposes

sex to an officer in order to escape responsibility for the crime for which she was

arrested. But that scenario, in which the officer accepts the arrestee’s advances,

law enforcement agency following arrest” ); Wash. Rev. Code Ann. § 9A.44.160 (West) (defining
“custodial sexual misconduct,” a class C felony, to include “[w]hen the victim is being detained,
under arrest[,] or in the custody of a law enforcement officer and the perpetrator is a law
enforcement officer”); Ariz. Rev. Stat. Ann. § 13-1412 (defining “unlawful sexual conduct” as a
felony that includes when “[a] peace officer . . . knowingly engag[es] in sexual contact, oral sexual
contact or sexual intercourse with any person who is in the officer’s custody or a person who the
officer knows or has reason to know is the subject of an investigation,” but providing an exception
for when the officer is married or in a “romantic or sexual relationship” with the other person”);
Alaska Stat. Ann. § 11.41.425 (West) (defining “sexual assault in the third degree” to include when
a police officer “engages in sexual penetration with a person with reckless disregard that the person
is in the custody or the apparent custody of the offender, or is committed to the custody of a law
enforcement agency”).
174
1 J. D. LEE & BARRY A. LINDAHL, MODERN TORT LAW: LIABILITY AND LITIGATION § 7:12 (2d
ed. 2008).
69
involves criminal conduct by the officer,175 and also by the arrestee.176 To our mind,

scenarios like this exemplify why voluntary consent is inconsistent with the context

of an arrest, because everything about the sex is transactional and involves a tool to

escape being a captive.177

We also must address the State’s position on consent here, which we view as

embracing the Officer’s last statement about his conduct, and being inconsistent with

its prior decision to charge him not only with “intentionally compel[ling] or

induc[ing] [Doe] to engage in sexual penetration/intercourse,” but also with

“solicit[ing] a personal benefit from another person for having violated his duty” to

175
11 Del. C. § 1203 (“(a) A public servant is guilty of receiving a bribe when the public servant
solicits, accepts or agrees to accept a personal benefit from another person upon an agreement or
understanding that the public servant’s vote, opinion, judgment, action, decision or exercise of
discretion as a public servant will thereby be influenced. . . . (c) A public servant is guilty of
receiving a bribe when the public servant solicits, accepts or agrees to accept a personal benefit
from another person for having violated the public servant’s duty as a public servant.”); id.
§ 1343(a) (“A person is guilty of patronizing a prostitute when: (1) Pursuant to a prior agreement
or understanding, the person pays a fee to another person as compensation for that person’s having
engaged in sexual conduct with the person; or (2) The person pays or agrees to pay a fee to another
person pursuant to an agreement or understanding that in return therefor that person or a third
person will engage in sexual conduct with the person; or (3) The person solicits or requests another
person to engage in sexual conduct with the person in return for a fee.”).
176
Id. § 1201 (“A person is guilty of bribery when: (1) The person offers, confers or agrees to
confer a personal benefit upon a public servant upon an agreement or understanding that the public
servant’s vote, opinion, judgment, action, decision or exercise of discretion as a public servant will
thereby be influenced; or . . . (3) The person offers, confers or agrees to confer a personal benefit
upon a public servant for having violated a duty as a public servant.”); id.. § 1342(a)(1) (“A person
is guilty of prostitution when the person engages or agrees or offers to engage in sexual conduct
with another person in return for a fee.”).
177
Cf. Wood v. Beauclair, 692 F.3d 1041, 1047 (9th Cir. 2012) (“The power dynamics between
prisoners and guards make it difficult to discern consent from coercion. Even if the prisoner
concedes that the sexual relationship is ‘voluntary,’ because sex is often traded for favors (more
phone privileges or increased contact with children) or ‘luxuries’ (shampoo, gum, cigarettes), it is
difficult to characterize sexual relationships in prison as truly the product of free choice.”).
70
bring Doe in on her capias.178 Both charges are inconsistent with the Officer’s

statement that Doe only asked him to help her with her charges after becoming

amorous with him and then performing oral sex on him. The Officer of course had

to say that or otherwise confess to the crimes of accepting a bribe and official

misconduct at the very least.

But even if one accepts the Officer’s story as creating some dispute of fact

about what happened, his own story illustrates why voluntary consent is not possible

in the context of Doe’s arrest. Although the Officer claimed that Doe said nothing

about favorable treatment until after the sex was over, he also said that she said “[i]f

there is anything you can do with my charges, I would appreciate it” after he let her

go.179 In other words, even the State’s tenuous embrace of the Officer’s second

story—which came after he was caught in a lie—shows the inherently coercive and

transactional, not voluntary, nature of any sex between an arrestee and her arresting

officer.

For these reasons, we hold that an arrestee cannot provide voluntary consent

to sex with her arresting officer.

178
App. to Opening Br. at 134 (Complaint and Warrant for [the Officer]).
179
Id. at 117 (Interview of [the Officer]).
71
 F. Risk Allocation

Before closing, we address the State’s core argument that the risk of

misconduct in cases like these should be borne by plaintiffs like Doe, and not

imposed on employing police agencies. We understand that other jurisdictions have

taken that approach and left victims to recover only against wrongdoing officers

themselves, most of whom are unlikely to have the personal wealth necessary to

satisfy a judgment of any sizeable kind.

Consistent with the policy judgment of § 219, the unique context of cases of

this kind makes it sensible in our view for respondeat superior liability to exist.

Victims are poorly positioned to protect themselves from wrongful sexual

misconduct by arresting officers because, by law, they are not supposed to use even

peaceable means to resist arrest, and the gantlet required to successfully bring and

prove a case like this is daunting at best.

By contrast, police agencies are well positioned through careful hiring,

training, and other practices to address the risk of sexual misconduct by their

officers. The State Police already engages in some of these activities, including

training officers on the proper way to interact with the public, 180 and efforts to

monitor the time officers spend with arrestees to ensure that it is not suspiciously

180
App. to Opening Br. at 384 (Colonel MacLeish Testimony Tr.).
72
long.181 With developments such as body cameras and other technologies providing

both video and audio monitoring of police contact with the public, police agencies

should, we hope, be even better positioned to deter and prevent sexual wrongdoing

by police officers.182 Absent the potential for respondeat superior liability, however,

the incentives for police agencies to take these steps will be diminished and the risk

of misconduct placed on a class of victims poorly positioned to protect themselves.

IV. Conclusion

For the reasons we have discussed, we vacate the jury verdict in this case.

Because there are no remaining disputes of fact relevant to liability, Doe is entitled

to judgment as a matter of law on that issue against the State Police. On remand, the

Superior Court shall enter judgment in Doe’s favor on the issue of liability. If the

parties are unable to resolve the sole remaining issue in this case, that of damages,

after good faith discussions, the Superior Court shall hold a trial on that issue.

181
Id. (“You are told whenever you transport a person of the opposite sex, to call in your mileage.
So your mileage is recorded, and typically, that is one of those things that is shared, the reason
why you do not cross those lines.”).
182
For example, when officers wear body cameras, that footage can be used to confirm their
innocence or an assault victim’s alleged version of events. See, e.g., Former Police Officer Pleads
Guilty to Attempted Sexual Assault (Apr. 21, 2018), CBS DENVER, http://denver.cbslocal.com/
2018/04/21/former-pueblo-officer-sexual-assault/ (“[Officer] Candelaria was arrested in
November 2016 after a woman reported that he assaulted her after she called for help in a domestic
violence case. . . . Authorities say the officer’s body camera showed him having a sexual
conversation with the woman, and then the body camera was turned off. The officer later admitted
he had contact with the woman.”).
73
VALIHURA, Justice, dissenting; joined in part by VAUGHN, Justice:

For the reasons explained herein, I decline to join my learned colleagues in

the Majority.

As the Majority acknowledges, its decision is an about-face from precedent—

not just under Delaware Law, but also from our two prior decisions in this litigation,

which began nearly eight years ago.

On August 18, 2010, Doe filed this civil suit against a Delaware State Police

officer (“Officer”) and the State. She alleged that the Officer committed the torts of

assault, battery, and rape while she was in his custody following her arrest, and that

the State must be held liable for damages “pursuant to the principles of agency and/or

the doctrine of respondeat superior.” On May 7, 2012, the Superior Court granted

the State’s motion for summary judgment. In doing so, the trial court found, as a

matter of law, that the Officer was acting outside the scope of his employment when

he committed such acts and, thus, the State could not be held liable under respondeat

superior. The Majority agrees that that should have been the right result applying

the law as it existed then.

But, on appeal, this Court reversed the Superior Court’s grant of summary

judgment to the State. In our opinion in Doe v. State (Doe I),1 this Court—with a

 Justice Vaughn joins in part, as reflected in footnote 39 of his dissenting opinion.
1
76 A.3d 774 (Del. 2013) (en banc).
different composition of jurists—held that the question of whether the Officer was

acting within the scope of his employment was fact-specific under the long-accepted

test for respondeat superior liability, borrowed from Section 228 of the Restatement

(Second) of Agency (the “Restatement”),2 and, as such, was a question for the jury

to decide. Accordingly, on September 12, 2013, we reversed and remanded the

matter to the Superior Court for further proceedings.

On July 29, 2014, the Superior Court again granted summary judgment for

the State. This time it did so finding that the State was shielded from liability under

the doctrine of sovereign immunity. The trial court denied Doe’s motion for

summary judgment because, under the law of the case, as this Court held in Doe I,

the jury had to decide certain factors relevant to determining whether the tortfeasor

acted within the scope of employment so as to satisfy the requirements for

respondeat superior liability. Later, on April 8, 2015, the Superior Court also

granted the Officer’s estate’s motion to dismiss because 12 Del. C. § 2102(a)

requires that all claims against an estate be asserted within eight months following

the death of the decedent, and Doe had first brought suit fifteen months after the

Officer passed away. Doe appealed those rulings.

2
Restatement (Second) of Agency (1958) [hereinafter Restatement].
2
 Then, in Sherman v. State (Doe II),3 this Court, sitting en banc, reversed on

sovereign immunity: the State waived that defense because its insurance policy

covered the Officer’s acts. But we affirmed the Superior Court’s ruling denying

Doe’s motion for summary judgment. We stated that “[t]he Superior Court [had]

correctly determined that our 2013 holding is the law of the case,” and we reaffirmed

Doe I’s holding that the scope of employment issue presented questions for the jury.4

We also affirmed the trial court’s dismissal of the Officer’s estate as a

defendant. Thus, a finding of liability against the State was the only means for the

estate of Doe, who had since passed away, to recover damages.

On remand, following a three-day civil trial, the jury found that the State was

not liable for the allegedly tortious conduct of the Officer. On May 8, 2017, the

Superior Court denied Doe’s motions for a new trial and to set aside the verdict.

This appeal followed.

Doe’s arguments on appeal focus on the alleged defects in the jury instructions

(which all parties agree are correct as a matter of law), the permissibility of certain

defenses, and the propriety of the State’s closing argument at trial. Yet the Majority

goes far beyond Doe’s precise arguments. Absent the request of any party, the

Majority reverses our holding in Doe I that the third factor of the test for respondeat

3
133 A.3d 971 (Del. 2016) (en banc).
4
Id. at 979.
3
superior liability—whether the Officer was motivated at least in part by a desire to

serve his employer in committing the tortious acts—“has been construed broadly as

a matter for the jury to decide.”5 The Majority also sua sponte reverses our decision

in Doe II to let that decision stand as law of the case.

And the Majority travels even beyond reversing two of our prior decisions in

this same litigation, which, standing alone, the Majority acknowledges would have

required finding for the State. For policy reasons, it refuses to apply the recognized

test in Delaware for adjudicating claims of respondeat superior and instead adopts a

new test, from Restatement Section 219(2)(d)—never before applied in Delaware,

and rarely adopted in other states. The end result is that the Majority rules for Doe

as a matter of law.

The Majority points to a narrow exception to the law of the case doctrine and

asserts that adhering to our prior rulings would produce an “injustice.” But the

alleged injustice is based on an incorrect premise, as explained below, and there is

no precedent for applying that exception under circumstances presented here. Even

more, the Majority sua sponte imposes a novel, non-delegable duty on the State to

guard against seemingly all intentional torts committed by law enforcement officers

against arrestees. In doing all of this, the Majority has usurped the role of our

General Assembly in determining major policy decisions concerning the

5
76 A.3d at 777.
4
apportionment of tort liability. We have declined to engage in such “acts of creation”

not only in the torts arena, but also recently in other contexts,6 and we should do so

here. I address each point in turn.

I.

First, there is no basis to ignore the law of the case doctrine and reverse course

on Doe I and Doe II. “The law of the case doctrine, like the stare decisis doctrine,

is founded on the principle of stability and respect for court processes and

precedent.”7 We have noted that the doctrine is designed to bring “some closure to

matters already decided in a given case by the highest court of a particular

jurisdiction, particularly when (with a different composition of jurists) that same

court is considering matters in a later phase of the same litigation.”8 Like stare

decisis, the law of the case doctrine is justified because “[[e]xcessive] disturbance

of prior rulings would be taken as evidence that justifiable reexamination of principle

had given way to drives for particular results in the short term.” 9 In SIGA

6
See, e.g., DFC Glob. Corp. v. Muirfield Value P’rs, L.P., 172 A.3d 346, 348 (Del. 2017) (en
banc) (refusing to establish a presumption by “judicial gloss” and “declin[ing] to engage in that
act of creation . . . .”). There, we observed that we lacked “confidence in our ability to craft, on a
general basis, the precise pre-conditions that would be necessary to invoke a presumption of that
kind.” Id. at 366.
7
Gannett Co. v. Kanaga, 750 A.2d 1174, 1181 (Del. 2000).
8
Id.
9
Id. at 1182 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 866 (1992)); id. (“[F]requent
overruling would overtax the country’s belief in the Court’s good faith . . . . The legitimacy of the
Court would fade with the frequency of its vacillation.” (quoting Casey, 505 U.S. at 866)). See
also State v. Barnes, 116 A.3d 883, 891 (Del. 2015) (“The doctrine of stare decisis exists to protect
the settled expectations of citizens because, ‘[e]lementary considerations of fairness dictate that
individuals should have an opportunity to know what the law is and to conform their conduct
5
Technologies, Inc. v. PharmAthene,10 a majority of this Court noted that “despite

SIGA’s concerns about the precedent set in SIGA I, the decision is the law of the

case.”11 We also adhered to our prior decisions in that case because, like here,

“[w]hether [the prior appeal] was correctly decided was not raised by the parties and

[was] not before us on appeal.”12

However, we have stated that the doctrine is “not inflexible.”13 As such, we

have recognized three exceptions where it may be overcome: when a prior decision

is (1) “clearly wrong,” (2) “produces an unjust result,” or (3) “should be revisited

because of changed circumstances.”14

Here, Doe did not raise any argument that the prior decisions of this Court

were “clearly wrong,” or incorrectly decided because they overlooked Section

219(2)(d), or that the law of the case doctrine should be ignored. 15 Doe did argue

for the application of Section 219(2)(d) in Doe I. But we implicitly rejected that

accordingly.’” (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994))); id. n.40 (“To
overturn a decision settling one . . . matter simply because we might believe that decision is no
longer ‘right’ would inevitably reflect a willingness to reconsider others. And that willingness
could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal
stability.” (quoting John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008))).
10
132 A.3d 1108 (Del. 2015).
11
Id. at 1138.
12
Id.
13
Cede & Co. v. Technicolor, Inc., 884 A.2d 26, 39 (Del. 2005).
14
Id.
15
In fact, Doe’s main quibble was with the trial court’s jury instructions, which she concedes were
correct as a matter of law.
6
request in declining to adopt it and, instead, chose to rely on the ordinary test for

respondeat superior liability articulated in Section 228.

And we even applied the law of the case doctrine in this very case, in our

opinion in Doe II, when responding to Doe’s argument that the Motivation Prong

should not go to the jury because the facts bearing on the issues that would ordinarily

go to a jury were “truly uncontested.”16 We expressly denied her request based on

the law of the case doctrine because, in Doe I, we had “held that the question of

whether an employee acted in the scope of employment ‘is ordinarily one for

decision by the jury,’”17 and observed that on remand the Superior Court had

“correctly determined that our 2013 holding [in Doe I] is the law of the case . . . .”18

As such, it “properly denied Doe’s motion for summary judgment.”19

16
Doe II, 133 A.3d at 979.
17
Id. (quoting Draper v. Oliviere Paving & Constr. Co., 181 A.2d 565, 569 (Del. 1962)).
18
Id.
19
Id. In addition to Doe II’s reaffirmation of Doe I’s holding that the Motivation Prong is a jury
question, we reinforced that same precedent in Hecksher v. Fairwinds Baptist Church, Inc., when
we relied on Doe I for the proposition that “[t]he question of whether a tortfeasor is acting within
the scope of his employment is fact-specific, and, ordinarily, is one for the jury to decide.” 115
A.3d 1187, 1200 (Del. 2015) (quoting Doe I, 76 A.3d at 776); see also id. at 1203 n.62 (citing with
approval our holding in Doe I that “the question of whether a police officer’s rape committed while
he was arresting the victim was committed solely for personal reasons could not be resolved on a
motion for summary judgment.” (citing Doe I, 76 A.3d 774)). Doe even acknowledges that, in
the out-of-state precedent she relies upon—Mary M. v. City of Los Angeles, 814 P.2d 1341 (Cal.
1991), and Doe v. Forrest, 853 A.2d 48 (Vt. 2004)—the California Supreme Court and the
Vermont Supreme Court, respectively, held that the respondeat superior issue before them
presented a question of fact. See, e.g., Mary M., 814 P.2d at 1347 (“[T]he question of whether [the
officer] acted within his scope of employment was properly left for the jury to decide.”).
7
 Here, the only changed circumstance is the composition of this Court. And

that alone is not enough to trigger the exception. The public should not have to

worry that our case law will vacillate with every change in the makeup of the Court.

In relying on the “unjust result” exception, the Majority breathes new life into

arguments that Doe chose not to re-assert in this appeal. It rests the claimed

“injustice” on the false premise 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.”20 There is no precedent that

requires this Court to address all arguments asserted by the parties. Setting such

precedent can potentially destabilize our law.21 Similarly, I am not aware of any

instance where the “unjust result” exception has been triggered on account of jury

instructions that, even if not ideally stated, all parties agree constitute accurate

statements of the law.22 Further, the “unjust result” exception is even more difficult

20
Majority Op. at 5.
21
Further, it can create inefficiencies by not allowing the Court to narrow holdings where
appropriate and possible, and it would force the Court to rule on issues only tangentially presented
to the Court by parties and without the benefit of a full presentation.
22
The instruction given on course and scope of employment was consistent with Delaware law
and supplemented the pattern jury instructions. See Corbitt v. Tatagari, 804 A.2d 1057, 1062 (Del.
2002) (“[J]ury instructions must give a correct statement of the substance of the law and must be
‘reasonably informative and not misleading.’” (quoting Cabrera v. State, 747 A.2d 543, 544 (Del.
2000))). It was also nearly identical to the language this Court used in Doe I when discussing
Section 228.
8
to justify when its application involves, as here, overturning a jury verdict. This

should not be done lightly.23

II.

No doubt, the Majority’s desire to clarify the requirements of the Motivation

and Foreseeability prongs is based upon a sincere desire to be helpful to future

litigants. But if it were to limit its revisiting of the law of the case to the law as it

existed when the litigation was taking place, then summary judgment should have

been granted in favor of the State—not Doe. The Majority does not dispute this.24

This approach is consistent with the weight of authority. The highest courts

of numerous states25 and many federal courts26 have found that such wrongful

23
See Shapira v. Christiana Care Health Servs., Inc., 99 A.3d 217, 224 (Del. 2014) (“‘Under
Delaware law, enormous deference is given to jury verdicts,’ and they should not be disturbed
unless ‘the evidence preponderates so heavily against the jury verdict that a reasonable jury could
not have reached the result.’” (quoting Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997); then
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979))). Further, for the sound policy reasons
undergirding the law of the case doctrine, this “unjust result” exception traditionally is, and must
be, construed narrowly. I was able to locate only a few instances where the “unjust result”
exception has been applied: where prior rulings were “too speculative,” in Wilmington Med. Ctr.
v. Coleman, 298 A.2d 320, 322 (Del. 1972); and where the State was insisting upon applying the
law of the case despite having conceded that the law stated by the Court had been incorrect, in
Cobb v. State, 676 A.2d 901, 1996 WL 145793, at *1 (Del. 1996) (Table). The situation here is a
far cry from such scenarios.
24
See Majority Op. at 47 (“If Doe was required to satisfy the Motivation Prong of § 228, she could
not, and judgment was owed to the State on that ground.”).
25
See, e.g., West Virginia Reg’l Jail & Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 769-70 n.25
(W. Va. 2014) (“There is overwhelming majority support in other jurisdictions concluding that
sexual assaults committed on the job are not within the employee’s scope of employment.”)
(collecting cases).
26
See, e.g., Rabon v. Guardsmark, Inc., 571 F.2d 1277, 1279 (4th Cir. 1978) (holding that sexual
assault committed by an employee is outside of the scope of his employment) (“The assault by [a
private security guard] was manifestly not in furtherance of [his employer, a private security
agency’s] business; it was the converse of [its] purpose that of providing protection and that for
9
conduct—sexual assault—is not in service of the employer as a matter of law and

denied respondeat superior liability on that basis.

III.

Instead of applying Section 228—which, as the Majority agrees, “our State

has embraced . . . for decades now”27—and granting summary judgment to the State,

the Majority relies on Section 219(2)(d)’s “aided in accomplishing the tort by the

existence of agency relation” prong (the “Agency Relation Prong”), a provision

never before embraced by Delaware courts. Only one jurisdiction (Vermont) has

applied Section 219(2)(d) to allow for the imposition of vicarious liability on the

which it was employed.”); City of Green Cove Springs v. Donaldson, 348 F.2d 197, 202-03 (5th
Cir. 1965) (holding police officer’s sexual assault of victim outside the scope of his employment)
(“The facts, construed most favorably for the appellee, will admit of no inference other than that
in his rape of the plaintiff, Officer Mosely stepped aside from his employment to accomplish his
own, rather than the City’s purpose.”); Dockter v. Rudolf Wolff Futures, Inc., 684 F. Supp. 532,
536 (N.D. Ill. 1988) (holding that supervisor’s assault of another employee was not in service of
their employer because it was “committed entirely for his own enjoyment and benefit”), aff’d, 913
F.2d 456 (7th Cir. 1990); Ho-Ching v. City & Cty. of Honolulu, 2009 WL 1227871, at *13 (D.
Haw. Apr. 29, 2009) (“[I]f Moniz did commit a sexual assault or sexual harassment, it was not the
conduct for which he was hired as a police office[r] and by no means served the interests of
Defendant.”); Valdez v. Church’s Fried Chicken, Inc., 683 F. Supp. 596, 610 (W.D. Texas 1988)
(holding that an employee’s sexual assault of another was “purely personal and had nothing to do
with the business,” and thus outside the scope of his employment); Hunter v. Countryside Ass’n
For the Handicapped, 710 F. Supp. 233, 239 (N.D. Ill. 1987) (holding that the employee’s “alleged
sexual assault can in no way be interpreted as further Countryside’s business”). The United States
Supreme Court has commented that sexual harassment might be different. Though “[t]he general
rule is that sexual harassment by a supervisor is not conduct within the scope of employment,” the
Court has observed that “[t]here are instances, of course, where a supervisor engages in unlawful
discrimination with the purpose, mistaken or otherwise, to serve the employer.” Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 757 (1998) (citing Sims v. Montgomery Cty. Comm’n, 766 F. Supp.
1052, 1075 (M.D. Ala. 1990)).
27
See Majority Op. at 53 n.130. The Majority also agrees that “the § 228 test works well to fairly
determine when respondeat superior liability is appropriate.” Id.
10
government under these circumstances—sexual assault committed by its law

enforcement officers.28 And it unabashedly does so based on the court’s own policy

determinations.29 The few other cases that invoke that provision in other contexts

are similarly animated by policy concerns, but oftentimes those concerns are

grounded in legislation announcing such policy concerns.30 There is no such

legislation here. And all of those cases applying the Agency Relation Prong resist

going as far as the Majority does here: they avoid imposing what amounts to strict

liability on local and state law enforcement agencies for sexual assaults committed

by their officers.31

As the Majority explains, Section 219(2) outlines certain situations where

vicarious liability may be imposed on employers when an employee acts outside of

28
Doe v. Forrest, 853 A.2d 48, 57 (Vt. 2004). But even there, the Vermont Supreme Court held
as a matter of law that, under the Section 228 test, the officer could not have been motivated at
least in part by a desire to serve his employer. Id. at 55 (“Although Forrest’s misconduct occurred
while ostensibly on duty, we cannot conclude that coercing plaintiff to perform fellatio was
conduct that was actuated, even in part, by a purpose to serve the county sheriff. The act Forrest
performed is so different from the acts he was authorized to perform that we can reach this
conclusion as a matter of law.”). It then adopted Section 219(2)(d) for the first time. Id.
29
Also, the court in Mary M., though not applying Section 219(2)(d), imposed liability for policy
reasons. See 814 P.2d at 1349 (“[E]ach of the three policy reasons supports the imposition of
vicarious liability on the employer of a police officer who, while on duty, commits a sexual assault
by misusing his official authority.”).
30
See, e.g., Hardwicke v. Am. Boychoir Sch., 902 A.2d 900, 920 (N.J. 2006) (“The [Child Sexual
Abuse Act] imposes responsibility on those in the best position to know of the [child] abuse and
stop it; application of section 219 of the Restatement to plaintiff’s common-law claims advances
those goals.”).
31
See Doe v. Sipper, 821 F. Supp. 2d 384, 392-93 (D.D.C. 2011) (denying company’s motion to
dismiss in order to allow the case to proceed to discovery on whether the company’s Chief
Operating Officer relied on his agency relation with another employee when raping her in his hotel
room on a business trip).
11
the scope of employment. As set forth in subsection (d), vicarious liability may be

imposed for such torts outside the scope of employment if 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 agency

relation.” The Majority relies on the second clause, the Agency Relation Prong, to

impose liability on the State as a matter of law.

Courts have tread cautiously when asked to apply this Agency Relation Prong,

and for good reason: applying it strictly according to the plain meaning of its terms

would expose an employer to virtually unbounded liability. In fact, if not properly

circumscribed, its application runs the risk of “swallowing agency law’s general

scope of employment rule” in Section 228, in making the exception greater than the

rule.32 As the United States Supreme Court has observed, “most workplace

32
Daniel M. Combs, Case Note, Costos v. Coconut Island Corp.: Creating a Vicarious Liability
Catchall Under the Aided-by-Agency-Relation Theory, 73 U. Colo. L. Rev. 1099, 1105 (2002).
The comments to the Restatement and the transcripts of the drafting committee meetings suggest
that the drafters were concerned about the potential for broad application of the Agency Relation
Prong and attempted to limit its reach, even though the drafting committee never addressed these
concerns through adjustments in the actual black letter text of the Restatement. Comment e
provides a non-exhaustive list of two examples of situations that fit within the Agency Relation
Prong, and they both involve deceit. The two examples in Comment e are also clear illustrations
of situations that other provisions within the Restatement state already provide a basis for
respondeat superior liability. Comment e’s first example of a situation engendering liability under
the Agency Relation Prong states that a master may be liable where his agent, a telegraph operator,
“sends false messages purporting to come from third persons.” Restatement, supra note 2, § 219
cmt. e (citing § 261). Indeed, another provision in the Restatement, Section, 261 provides a basis
for liability in such circumstances: “[a] principal who puts a servant or other agent in a position
which enables the agent, while apparently acting within his authority, to commit a fraud upon third
persons is subject to liability to such third persons for the fraud.” Id. § 261. The second example
is where “[t]he manager of a store operated by him for an undisclosed principal is enabled to cheat
12
tortfeasors are aided in accomplishing their tortious objective by the existence of the

agency relation.”33

When the United States Supreme Court addressed the applicability of Section

219(2)(d) (and its Agency Relation Prong) in a pair of decisions in 1998, in

Burlington Industries Inc. v. Ellerth34 and Faragher v. City of Boca Raton,35 the

Court took care to circumscribe its reach. It considered the Restatement because an

the customers because of his position.” Id. (citing § 222). Again, Section 222 provides a basis for
liability in such circumstances as it states that “[a]n undisclosed principal is subject to liability to
third persons for conduct within the scope of employment of servants and of subservants employed
for him by a servant or other agent empowered to employ them.” Id. § 222. Further, “the
deliberations preceding Section 219(2)(d)’s adoption demonstrate an intent to limit the section’s
application to cases involving apparent authority, reliance, or deceit.” Mahar v. StoneWood
Transp., 823 A.2d 540, 546 (Me. 2003). The chairman of the drafting committee noted, “I have
had the idea that I would like to see it confined (if nothing better can be had) to cases which are
not criminal.” Discussion of Restatement of the Law, Second, Agency (Tentative Draft No. 4), 33
A.L.I. Proc. 314, 383 (1956) (quoting Chairman John G. Buchanan). See also Alan J. Oxford, II,
When Agents Attack: Judicial Misinterpretation of Vicarious Liability Under “Aided in
Accomplishing the Tort by the Existence of the Agency Relation” and Restatement 3rd’s Failure
to Properly “Restate” the Ill-Fated Section 219(2)(d) Provision, 37 Okla. City U. L. Rev. 157,
180-81 (2012) (“What is clear from the 1956 Proceedings is that the ALI showed great hesitancy
in extending vicarious liability to the case where the utility worker rapes the homeowner, even if
he gained access into the home by showing his employer-issued badge. In addressing this example,
the 1956 Proceedings take the position that no vicarious liability could attach and that no liability
is intended by Section 219(2)(d). It is also clear that the ALI rejected liability under the Aided in
Accomplishing language for theft, libel, and other ‘crimes’ . . . .”).
33
Ellerth, 524 U.S. at 760 (“Proximity and regular contact may afford a captive pool of potential
victims. Were this to satisfy the aided in the agency relation standard, an employer would be
subject to vicarious liability not only for all supervisor harassment, but also for all co-worker
harassment, a result enforced by neither the [Equal Employment Opportunity Commission] nor
any court of appeals to have considered the issue. The aided in the agency relation standard,
therefore, requires the existence of something more than the employment relation itself.” (citations
omitted)); Zsigo v. Hurley Med. Ctr., 716 N.W.2d 220, 226 (Mich. 2006) (declining to adopt
Section 219(2)(d) and observing that “it is difficult to conceive of an instance when the exception
would not apply because an employee, by virtue of his or her employment relationship with the
employer is always ‘aided in accomplishing’ the tort.”).
34
524 U.S. 742 (1998).
35
524 U.S. 775 (1998).
13
earlier decision, in Meritor Savings Bank v. Vinson,36 held that, in deciding whether

an employer could be held vicariously liable for claims under Title VII of the Civil

Rights Act, “Congress wanted courts to look to agency principles for guidance in

this area.”37

In light of that dictate, the United States Supreme Court determined that the

text of Section 219(2)(d), viewed through the lens of advancing the policy interests

of Title VII, allowed employers to face vicarious liability for sexual harassment

committed by their employee-supervisors if their commission was aided by the

employees’ agency relation to their employers.38 But, recognizing the dangers of an

expansive reading of Section 219(2)(d), the Supreme Court took care to avoid

imposing strict liability on employers and, instead, limited respondeat superior

liability to situations where “a supervisor takes a tangible employment action against

the subordinate.”39 Such “tangible employment actions” are actions that “fall within

the special province of the supervisor” who “has been empowered by the company

as a distinct class of agent to make economic decisions affecting other employees

36
477 U.S. 57 (1986).
37
See Meritor, 477 U.S. at 72, cited in Ellerth, 524 U.S. at 754-55, and Faragher, 524 U.S. at 791-
92.
38
Ellerth, 524 U.S. at 761-62 (“When a supervisor makes a tangible employment decision, there
is assurance the injury could not have been inflicted absent the agency relation.”); Faragher, 524
U.S. at 802 (using Section 219(2)(d)’s Agency Relation Prong as a “starting point” for determining
vicarious liability). See also Meritor, 477 U.S. at 77 (Marshall, J., concurring in the judgment)
(“[I]t is precisely because the supervisor is understood to be clothed with the employer's authority
that he is able to impose unwelcome sexual conduct on subordinates.”).
39
Ellerth, 524 U.S. at 760.
14
under his or her control.”40 The cases also allow the employer to assert an

affirmative defense, which includes a showing that the employer instituted controls

and training—an incentive consistent with Title VII’s policy of “encouraging

forethought by employers,” such as through ex-ante prevention, “and saving action

by objecting employees.”41

In both Ellerth and Faragher, while it was outside the supervisor’s scope of

employment to sexually harass his supervisee, the Court determined that it made

sense to hold the employer liable for the employee-supervisor’s conduct when the

employer had granted the supervisor the authority to make subsequent decisions

affecting such employees. In other words, the infraction could be described as

“misuse of delegated authority.”42 In contrast, here, the State did not give the Officer

any such decision-making authority. And, unlike in Faragher and Ellerth, where

the Court was guided by the policies of Title VII,43 we have no legislative directive

to guide our analysis.

40
Id. at 762; see also id. at 761 (“A tangible employment action constitutes a significant change
in employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.”); id. at 762
(“Tangible employment actions are the means by which the supervisor brings the official power
of the enterprise to bear on subordinates. . . . For these reasons, a tangible employment action
taken by the supervisor becomes for Title VII purposes the act of the employer.”).
41
Id. at 764; see also Faragher, 524 U.S. at 807-08.
42
Ellerth, 524 U.S. at 760.
43
The United States Supreme Court submitted that its invocation of the Agency Relation Prong
was driven by a prior case, Meritor, obligating it to “adapt agency concepts to the practical
objectives of Title VII.” Faragher, 524 U.S. at 802 n.3 (citing Meritor, 477 U.S. at 72). The Court
was not purporting to “make a pronouncement of agency law in general.” Id.
15
 In the years since Faragher and Ellerth, only one state supreme court has

adopted the United State Supreme Court’s reading of Section 219(2)(d)’s Agency

Relation Prong to allow for the possibility of imposing respondeat superior liability

on the state for the sexual assaults committed by police officers. 44 In that outlier

case, Doe v. Forrest,45 the Vermont Supreme Court acknowledged that its decision

was guided by its own policy judgments for why the state should be held responsible

for the acts of an officer outside the scope of his employment. The court deemed it

proper to impose liability on the state because the state grants police officers

“extraordinary power” and, as such, when an officer is the wrongdoer, his or her

victim is “stripped of the official protection that society provides” and rendered

“particularly vulnerable and defenseless.”46 And the court believed that it was

44
See Forrest, 853 A.2d at 57. In the pre-Ellerth and Faragher era, the California Supreme Court
held in Mary M. v. City of Los Angeles that respondeat superior liability may be imposed on the
state when “a police officer on duty misuses his official authority by raping a woman whom he
has detained.” 814 P.2d at 1352. But, unlike the near strict liability imposed by the Majority’s
opinion here, that court also held that the question of whether the officer misused official authority
in committing the rape is “a question of fact for the jury” and noted that, “[i]n this case, plaintiff
presented evidence that would support the conclusion that the rape arose from misuse of official
authority.” Id. That court did not rely on Section 219(2)(d). In the years since, at least three
justices of the California Supreme Court have noted that they believe Mary M. was “wrongly
decided” and would overrule its imposition of vicarious liability on the state. See Farmers Ins.
Grp. v. Cty. of Santa Clara, 906 P.2d 440, 459 (Cal. 1995) (Baxter, J., concurring) (“[W]hile I
agree with Justice George that Mary M. was wrongly decided and should be overruled, I do not
believe this case presents the proper vehicle because the facts here are amply distinguishable.”);
id. (George, J., concurring, with Lucas, C.J., joining) (“I would go further and overrule Mary M.,
because I believe that case was wrongly decided. By declining to overrule that decision at this
time, we run the risk that lower courts in future cases will feel constrained to follow the aberrant
holding of that decision.”).
45
853 A.2d 48 (Vt. 2004).
46
Id. at 61.
16
important to incentivize the state to provide appropriate training and oversight. It

stated that “[n]o incentive to prevent this kind of conduct is created by leaving the

victim uncompensated.”47 The court remanded for the jury to consider evidence

about whether the defendant officer had “special access to plaintiff: access created

by the existence of the agency relationship that aided the commission of the tort.”48

Because it is purely the result of judicial policy-making, the Majority’s

decision—though motivated by a desire to “clarify” the law—raises more questions

than it answers. No doubt, our courts will be faced with requests to apply Section

219(2)(d) to a host of other situations.49

Further, the Majority, in focusing on its own assessment of how risks and costs

ought to be allocated from a public policy standpoint, gives short shrift to Delaware’s

long-standing history of limiting rights of recovery against the State.50 Our General

Assembly has reflected this limitation of rights of recovery in the State Tort Claims

Act.51 Similarly, the County and Municipal Tort Claims Act provides that, “[e]xcept

as otherwise expressly provided by statute, all governmental entities and their

47
Id. at 62-63.
48
Id. at 68.
49
After Forrest, the Vermont Supreme Court entertained entreaties to extend its applicability to a
range of other scenarios. For example, in Doe v. Newbury Bible Church, 933 A.2d 196 (Vt. 2007),
answering a certified question from the Second Circuit, the Vermont Supreme Court determined
that, under Vermont law, Section 219(2)(d) does not apply to “situation[s] involving tortious acts
by a pastor.” Id. at 198.
50
See Majority Op. at 72-73.
51
10 Del. C. §§ 4001-05.
17
employees shall be immune from suit on any and all tort claims seeking recovery of

damages.”52

As both sides candidly acknowledged during the most recent oral argument

before this Court, that the decision as to whether respondeat superior liability should

be imposed is laden with policy questions. Among them are questions pertaining to

how the risks and costs of such deviant conduct should be allocated. But, instead of

allowing citizens (i.e., taxpayers) and their representatives in the General Assembly

to weigh in after debate—and instead of respecting the General Assembly’s

policymaking function—the Majority’s holding effects a change in the law based

entirely on its view of what the “proper” public policy should be and who should

bear the risks (and costs) of wrongful conduct by a law enforcement officer.53 And

the Majority does so without any evidentiary showing that the public will benefit by

52
10 Del. C. § 4011. There are limited statutory exceptions for certain negligent acts or omissions.
See, e.g., 10 Del. C. § 4012.
53
See Shea v. Matassa, 918 A.2d 1090, 1095-96 (Del. 2007) (“[W]e decline to create a new cause
of action. We defer, as we should, to the General Assembly, which is uniquely situated to
effectively examine the empirical data, hold public hearings, debate the social and economic issues
implicated, and then decide whether Delaware should recognize dram shop liability.”); Justice v.
Gatchell, 325 A.2d 97, 102 (Del. 1974) (“The General Assembly has access to relevant
information bearing upon these matters more significant than any afforded this Court, bound as it
is by the limitations of the record of this judicial proceeding.”); see also Maguire v. State, 835 P.2d
755, 759 (Mont. 1992) (“[M]ajor change to the respondeat superior doctrine is best left to the
legislature.”); Niece v. Elmview Group Home, 929 P.2d 420, 431 (Wash. 1997) (“Any needed
redirection of social policy is more appropriately the function of the legislature.” (quoting Bratton
v. Calkins, 870 P.2d 981, 987 (Wash. Ct. App. 1994))).
18
spreading the cost of a rogue employee’s conduct to the public entity (the State) and

ultimately, potentially to taxpayers, instead of on the wrongdoer alone.54

The Majority reasoned that respondeat superior liability is appropriate

because, without it, “the incentives for police agencies to take these steps [to deter

and prevent sexual wrongdoing by police officers] will be diminished and the risk

of misconduct placed on a class of victims poorly positioned to protect

themselves.”55 I do not believe we should sit as a “superlegislature”56 in this State

and deprive our General Assembly of its proper role as the entity responsible for

devising new forms of liability where appropriate, especially when based upon pure

policy matters.57

54
Importantly, this is not a case where anyone has suggested that the police department itself was
negligent in hiring, training or supervising the Officer. As the dissenting justice in Doe v. Forrest
rightfully questioned, “why is it fair or reasonable to burden the public with liability for a sexual
assault perpetrated by a rogue employee solely for his own twisted personal gratification?” 853
A.2d at 74 (Skoglund, J., dissenting). The question of why the State (public) should bear the cost
is a legitimate inquiry, particularly where there is no suggestion that the law enforcement agency
was negligent in hiring, training, or supervising the officer. Here, all agree that the Officer’s
conduct was based upon his own selfish desire for sexual gratification at the expense of his
detained suspect—rather than on advancing any interest of the State.
55
Majority Op. at 73.
56
See Delaware Solid Waste Auth. v. The News-Journal Co., 480 A.2d 628, 634 (Del. 1984)
(quoting Pub. Serv. Comm’n v. Wilmington Suburban Water Corp., 467 A.2d 446, 451 (Del.
1983)).
57
See Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1257 (Del. 2011) (noting that the
General Assembly “made a policy decision to set gross negligence as the floor—not the ceiling—
for invoking [the Child Victim’s Act’s] applicability”); Laws v. Webb, 658 A.2d 1000, 1006 (Del.
1995) (noting that the General Assembly adopted comparative negligence to abolish the “‘all or
nothing’ common law rule of contributory negligence,” and, thus, the Court “perceive[ed] no
logical basis to retain the ‘all or nothing’ doctrine of last clear chance”), overruled on other
grounds by Lagola v. Thomas, 867 A.2d 891, 892 (Del. 2005); In re Rural/Metro Corp. S’holders
Litig., 102 A.3d 205, 222-23 (Del. Ch. 2014) (noting that the General Assembly enacted the
19
 I am reminded of Justice Wolcott’s opinion in Ciociola v. Delaware Coca-

Cola Bottling Co.,58 where he cautioned against dispensing with common-law

shields to liability without input from the legislature. He observed that, “It may well

be desirable as a matter of public policy to impose absolute liability upon a

manufacturer for injuries caused by defects in his product but, if such is to be the

public policy of this State, it must be made so by the Legislative rather than the

Judicial Branch of the Government, the function of which is not to change

established law but to apply it.”59 The General Assembly responded in kind and

passed 6 Del. C. § 2-318.60

IV.

Equally concerning to me is the Majority’s holding, borrowed from the

intermediate appellate court in Indiana, 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.’”61 Under this duty, the law enforcement agency is liable for any

and all intentional torts committed by officers against those under the agency’s

control.

Delaware Uniform Contribution Among Tortfeasors Act in order to abolish “the common law ban
on contribution” among joint tortfeasors).
58
172 A.2d 252 (Del. 1961).
59
Id. at 257.
60
See Franchetti v. Intercole Automation, Inc., 523 F. Supp. 454, 456 (D. Del. 1981).
61
Majority Op. at 61 (quoting Cox v. Evansville Police Dep’t, 84 N.E.3d 678, 687 (Ind. Ct. App.
2017)).
20
 The Majority, like the Indiana Court of Appeals’ decision in Cox v. Evansville

Police Department,62 relies on Section 219(2)(c) of the Restatement, another

exception to the scope of employment requirement for respondeat superior liability.

Section 219(2)(c) provides that a master is liable for the torts of its servants if “the

conduct violated a non-delegable duty of the master.”63

The parties never mentioned the possibility of Section 219(2)(c)’s application

until this appeal—after oral argument—and then only after being prompted by this

Court for supplemental briefing on two questions. The first question asked whether

the law of the case doctrine should give way. The second asked for the parties’

views on the “extent to which certain principles of agency,” including as discussed

in Cox v. Evansville, “should bear on this Court’s resolution of the issues on

appeal.”64

The non-delegable duty exception is extremely narrow, typically reserved for

innkeepers and common carriers.65 The logic behind imposing a non-delegable duty

is grounded in contract and, as such, “the extent of this liability depends upon the

duty assumed” by contract, as an innkeeper or common carrier.66 The Restatement

(Second) of Torts discusses such duties in the context of evaluating liability for

62
84 N.E.3d 678 (Ind. Ct. App. 2017).
63
Restatement, supra note 2, § 219(2)(c).
64
Letter from the Clerk of the Supreme Court of Delaware to Counsel (Mar. 5, 2018), available
via File & ServeXpress.
65
See, e.g., Furek v. Univ. of Delaware, 594 A.2d 506, 517 n.8 (Del. 1991).
66
Restatement, supra note 2, § 214 cmt. a.
21
nonfeasance—where one fails to act in light of a duty to act.67 But that duty is a

limited one: “[t]he duty in each case is only one to exercise reasonable care under

the circumstances.”68 Further, “[t]he defendant is not required to take any action

until he knows or has reason to know that the plaintiff is endangered, or is ill or

injured . . . .”69

This Court has never cited Section 219(2)(c), and the Superior Court has

mentioned it only twice: first in rejecting an argument that such a duty should be

imposed on private security agencies,70 and later in rejecting an argument that a

school district owed a non-delegable duty to a student who resided in the dormitories

at its school for the hearing impaired.71

The Indiana opinion that extends such a duty to law enforcement officers is

an outlier, decided in reliance on precedent peculiar to that particular jurisdiction.

67
See Rogers v. Christina Sch. Dist., 73 A.3d 1, 7-8 (Del. 2013) (citing Restatement (Second) of
Torts §§ 314-20 (1965)).
68
Restatement (Second) of Torts § 314A cmt. e.
69
Id. cmt. f; see also id. § 320 (“One who is required by law to take or who voluntarily takes the
custody of another under circumstances such as to deprive the other of his normal power of self-
protection or to subject him to association with persons likely to harm him, is under a duty to
exercise reasonable care so to control the conduct of third persons as to prevent them from
intentionally harming the other or so conducting themselves as to create an unreasonable risk of
harm to him, if the actor . . . .”).
70
E. I. du Pont de Nemours Co. v. Spence Protective Agency, Inc., 1987 WL 8272, at *2 (Del.
Super. Ct. Mar. 6, 1987) (citing Rabon v. Guardsmark, Inc., 571 F.2d 1277 (4th Cir. 1978)).
71
Simms v. Christina Sch. Dist., 2004 WL 344015, at *8 (Del Super. Ct. Jan. 30, 2004) (“The
plaintiff offers no Delaware authority, however, for the proposition that a School District should
be held liable under this concept for torts of its employees which are outside the scope of their
employment. I decline to extend liability to the School District or its Board on this basis.”).
22
And it is even more of a frail reed upon which to hang such a weighty holding given

that it is currently on appeal to the Indiana Supreme Court.72

Moreover, that case arises in a context where Indiana law has developed

differently from ours. Indiana’s history of extending non-delegable duties began

with the Indiana Supreme Court’s opinion Stropes v. Heritage House Children’s

Center of Shelbyville, Inc.,73 which held that a residential children’s center held a

non-delegable duty to its mentally disabled resident,74 though it remanded the case

for determination of whether the center’s protection “fell short of the extraordinary

standard of care which is imposed by the common carrier exception and which it

assumed when it accepted [plaintiff] as a resident.”75 In Robins v. Harris,76 the

Indiana Court of Appeals held that “inmates are not precluded from recovering

damages from a sheriff for injuries suffered by intentional wrongful acts of jail

employees.”77 Similar precedent does not exist in this State.

This Court’s unexpected, sua sponte adoption of the non-delegable duty

principle—prompted only by its own post-argument question—is troubling, and

72
Oral argument in the Cox v. Evansville appeal was held on February 15, 2018.
73
547 N.E.2d 244, 247 (Ind. 1989).
74
Consistent with the contract-based roots of the non-delegable common carrier duty, the Indiana
Supreme Court observed, in imposing such a duty on the children’s care center, that the resident
and center’s “‘contract of passage’ contemplated that the entire responsibility for [the resident’s]
comfort, safety and maintenance would be on [the center] . . . .” Id. at 254.
75
Id. at 254.
76
740 N.E.2d 914, 918 (Ind. Ct. App. 2000), aff’d in part, vacated in part on other grounds, 769
N.E.2d 586 (Ind. 2002).
77
740 N.E.2d at 918.
23
worries me greatly. Here is why: the consequences could prove devastating for our

most vulnerable citizens, as aptly observed by our sister courts who have declined

to go this route. Facilities that care for our most vulnerable citizens might react in

ways unanticipated by the Majority. For example, fearing the risk of liability and

saddled with greater insurance costs, they might avoid taking on the most severely

disabled—or may not be able to afford to do so.

In Davis v. Devereux Foundation,78 the New Jersey Supreme Court held that

a charitable organization serving the developmentally disabled did not owe a non-

delegable duty to a resident burned by boiling water that a counselor had poured on

him. That court was motivated by similar concerns. It commented that, “[t]he

imposition of liability upon these organizations for unforeseeable intentional acts of

employees such as [the defendant employee] could jeopardize their continued

existence, deter the founding of new providers that could deliver quality services,

and increase the cost incurred by residents, families and the State in maintaining

residents in institutional care.”79 The employee was criminally charged, convicted,

and incarcerated for her assault on the resident.80

78
37 A.3d 469 (N.J. 2012).
79
Id. at 487.
80
Id. at 474. See also id. at 485 (“[A]s this case illustrates, the criminal justice system has a role
in deterring and punishing conduct such as [the employee’s].”).
24
 Similarly, in Niece v. Elmview Group Home,81 the Supreme Court of

Washington declined to hold a group home liable under this non-delegable-duty

theory after an employee sexually assaulted a resident. That court echoed the same

concerns, noting that “[t]he financial burden created by such strict liability might

actually reduce the residential care industry’s ability to provide quality care.”82

Washington’s high court asked questions such as, “Would insurance against such

liability be affordable or even available? Would the operators of group homes

simply pass the cost of such liability on to the families of residents or to the State

treasury? Or would commercial providers of residential care shy away from

accepting responsibility for the most vulnerable disabled persons, those most in need

of residential care?”83 But the court conceded its inability to answer them and

submitted “[i]t is particularly important to recognize the limits on our ability as an

appellate court to decide complex questions of public policy where, as here, a

decision to impose a new tort liability requires a consideration of factual matters

extrinsic to the case before the court.”84 That court also noted that “[t]he legislature

is uniquely able to hold hearings, gather crucial information, and learn the full extent

of competing societal interests.”85

81
929 P.2d 420 (Wash. 1997).
82
Id. at 431.
83
Id.
84
Id.
85
Id. (quoting Burkart v. Harrod, 755 P.2d 759, 761 (Wash. 1988)).
25
 I share our sister courts’ apprehension of the unintended consequences of

imposing new duties, especially in the absence of appropriate input from the

potentially affected constituencies and findings based upon evidentiary support.

V.

The potential impact of this decision is great. The Majority’s decision now

holds the State liable for the intentional sexual misconduct committed by a member

of law enforcement acting entirely outside the normal scope of his work duties. It

does so after reversing our own precedent in this very case and applying two sections

of the Restatement never before embraced in this State. It also is unclear whether

the holding applies only to law enforcement agencies, or whether every public (and

private) employer will now be faced with lawsuits seeking to extend this ruling even

beyond the law enforcement arena. Schools, daycares, nursing homes, and facilities

for our State’s most vulnerable citizens, and an untold number of other employers

(including government agencies) might be held liable in money damages for the

intentional torts committed by rogue employees with a purpose wholly divorced

from the interest of the employee’s employer.86

86
Although we have recognized that, in certain instances, even the intentional unauthorized torts
of an employee can be viewed as advancing the employer’s interests, see Draper v. Olivere Paving
& Const. Co., 181 A.2d 565, 569-72 (Del. 1962), this Court has never held that an employer may
be vicariously liable for a sexual assault committed by an employee.
26
 Accordingly, I respectfully dissent. I would affirm the decision of the trial

court.87

87
I join Justice Vaughn’s dissent to the extent that we both would affirm the decision of the trial
court. As set forth herein, my path and reasoning in reaching that endpoint differ from his to some
extent. But I agree with his view that this Court should decline to apply Section 219(2)(d) as well
as Section 219(2)(c) in this case.
27
VAUGHN, Justice, dissenting; joined in part by VALIHURA, Justice:

I cannot join the majority opinion because I do not agree with the majority’s

decisions on the foreseeability element of § 228 of the Restatement (Second) of

Agency (“the Restatement”), the issue of consent, or the applicability of § 219 of the

Restatement. I would affirm the judgment of the Superior Court. Since I would

affirm the judgment of the Superior Court, I will begin by discussing the five

arguments that Doe makes in her opening brief, in order.

The first argument Doe makes is that the trial court committed error in its

scope of employment instruction. The instruction is set forth in full in the majority’s

opinion. Specifically, Doe argues “[t]he Instruction was erroneous because it failed

to make clear that what had to be within the course and scope was [the police

officer’s] general activity and not specific wrongful activity occurring within that

general activity.”1 This argument relates to the element of § 228 requiring that the

wrongdoer’s conduct be “actuated, at least in part, by a purpose to serve the

master[.]”2 Doe argues that this element of § 228 is satisfied, or could be found by

a jury to be satisfied, because the officer was processing an arrest in the general

course of his police duties when the tortious conduct occurred. She argues that the

jury instruction should have more clearly informed the jury that it could find that the

 Justice Valihura joins in part, as reflected in footnote 87 of her dissenting opinion.
1
Doe’s Opening Br. 15.
2
Restatement (Second) of Agency § 228(1)(c) (1958).
officer was acting within the scope of employment if he was carrying out police

duties when the wrongful conduct occurred and need not find that the wrongful

conduct itself was motivated by a desire to serve the employer.

The majority discusses this “motivation prong” of § 228 in detail and I need

not do so here. I agree with the majority’s conclusion that it makes sense, in the

interest of justice, to depart from the law of the case on this issue in order to clarify

the meaning of § 228’s motivation prong. I also agree that the prong “requires that

the wrongful act must itself be motivated in part by a desire to serve the employer.”3

And I agree with the majority that the officer’s conduct was not motivated in any

sense by a desire to serve the state police. It follows that Doe’s first argument, in

retrospect, must fail because she was not entitled to an instruction that the motivation

element was satisfied if the officer was acting within the scope of general police

activity at the time the wrongful activity occurred.

Doe next argues that the trial court erred by refusing to give a foreseeability

instruction which she offered at trial and which the parties refer to as the “MacLeish

Instruction.” The MacLeish instruction was entitled “KNOWLEDGE OF COL.

MACLEISH” and read as follows:

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

3
See supra p. 5–6.
2
 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.4

The trial court rejected the MacLeish Instruction and gave the following a

pattern instruction on foreseeability:

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
foreseeable, but only that the risk of injury existed.5

The request for the MacLeish Instruction was based upon the testimony at trial

of former Delaware State Police Colonel Thomas F. MacLeish, which included the

following:

Q. And would you agree with me that it is known in your business, at
least as it existed when you retired back in 2009, is known, or was
known in your business that a small, very small, but small percentage
of police officers occasionally engage in sexual misconduct during the
course of an arrest?
A. Yes. It is an extremely small percentage. Yes, it is.
Q. It hurts to have to admit that, doesn’t it?
A. It is true in any occupation out there and law enforcement, you are
given the power and the authority and responsibility to take care of
others. And you do not ever cross that line. . . . To ask me if there is
anyone out there that has, yes, there has been a very, very small
minority.6

4
App. to Opening Br. at A0349.
5
Id. at A0474.
6
Id. at A0378–79.
3
 It is well known that a party does not have a right to have a particular

instruction in particular language as long as the instruction given is a correct

statement of law.7

It is unusual to have an instruction which is tailored to a particular witness’

testimony, as is the MacLeish Instruction. It refers to a “general problem” within

law enforcement that some police officers commit sexual assaults, but Col.

MacLeish’s testimony did not speak of a “general problem.” It states that if the jury

found that there was such a general problem, “then it was not completely

unforeseeable to the State that such wrongful conduct could occur.”8 The issue

however, is foreseeability, or expectability, not whether conduct was “not

completely unforeseeable.” The instruction seems to be one asking the trial court to

comment upon Col. MacLeish’s testimony, and it seems designed to steer the jury

in the direction of finding foreseeability. It is not a balanced instruction which

simply informs the jury of the law. I see no error in the trial court’s refusing to give

the MacLeish Instruction and instead giving the pattern instruction. The standard

instruction gave both sides full latitude to make their arguments on foreseeability.

I turn now to the majority opinion on the foreseeability element of § 228.9

The majority states that “[t]he reality is that there is no question of fact in this case

7
Chavin v. Cope, 243 A.2d 694, 698 (Del. 1968).
8
App. to Opening Br. at A0349.
9
Restatement (Second) of Agency § 228(1)(d) (1958).
4
that the Foreseeability Prong was satisfied.”10 Relying in part upon alleged wrongful

acts by state troopers that are included in a motion for partial summary judgment

filed in the Superior Court but which apparently were not introduced at trial, and in

part upon news and secondary sources which don’t seem to have much in particular

to do with Delaware and are not in evidence, the majority finds that foreseeability is

established as a matter of law in any case where a police officer sexually assaults a

detainee in the officer’s custody. I disagree with this conclusion for two reasons.

The first is that I think the doctrine of law of the case should bar

reconsideration of this issue. In Doe II we recognized that Col. MacLeish had

testified by deposition that there is a risk that some police officers will engage in

sexual assault, but we held that the foreseeability factor was a question for the jury.11

While I have agreed with the majority that the law of the case doctrine should give

way on the motivation prong, I do not think that the interests of justice call for

reconsideration of our ruling in Doe II on the foreseeability element of § 228.

Second, I think that a question of fact exists with regard to foreseeability and

that the issue was properly submitted to the jury. The trial court put it this way in

an order denying Doe’s motion for a new trial:

Finally, Plaintiff argues there was overwhelming evidence on the issue
of foreseeability to warrant a new trial. This Court disagrees. The only
evidence presented regarding the foreseeability of sexual assault of

10
See supra p. 47.
11
Sherman v. State, 133 A.3d 971, 979 (Del. 2016).
5
 arrestees by on-duty officers came from Colonel MacLeish’s testimony
that, as of 2009 when he retired from the Delaware State Police, an
“extremely small percentage” of officers engaged in sexual
misconduct during an arrest. However, two of [the officer’s]
supervisors testified that they were unaware of any allegations of sexual
misconduct against him prior to the incident in question, and therefore,
the jury was free to consider all of the testimony from the various law
enforcement representatives on the issue of foreseeability.12

I agree with the trial court. Doe was not required to show that there was prior

evidence of sexual misconduct on the part of the officer. The evidence that an

extremely small percentage of officers engaged in sexual misconduct was enough to

get her to the jury. But I think that all of the evidence referred to by the trial court,

both the general evidence solicited from Col. MacLeish and the specific evidence

solicited from the officer’s supervisors, was admissible for the jury’s consideration.

And I think it was within the province of the jury to decide whether the evidence

submitted was sufficient to rise to the level of establishing foreseeability.13

The third argument Doe makes in her opening brief is that unforseeability

was an affirmative defense that had to be proven by the State. At trial, Doe tendered

a proposed jury instruction entitled “COMPLETE UNFORESEEABILITY AS AN

AFFIRMATIVE DEFENSE,” which the trial court refused to give.14

12
Sherman v. State, 2017 WL 19900268, at *3 (Del. Super. May 8, 2017) (emphasis added).
13
Marston v. Minneapolis Clinic of Psychiatry and Neurology, LTD., 329 N.W.2d 306, 311 (Minn.
1982) (rejecting a plaintiff’s claim that foreseeability was established as a matter of law where
there was testimony that "sexual relations between a psychologist and a patient is a well-known
hazard" thus holding that foreseeability was a question of fact.).
14
App. to Opening Br. at A0345.
6
 In support of her third argument, Doe relies upon the cases of Doe I15 and

Draper v. Olivere.16 The facts of Draper are mentioned in the majority opinion and

need not be repeated here. These cases involved motions for summary judgment

filed by defendants. They discuss the burden on a moving party in that context.

They have no bearing on the burden of proof at trial. The normal burden of proof

was on Doe, as plaintiff, to prove each element of her claim by a preponderance of

the evidence, including the element of foreseeability under § 228(1)(d).17 There was

no error on the part of the trial court in refusing to give the instruction tendered by

Doe.

Doe next argues that the State made an improper statement in closing

argument. The portion of the argument complained of is as follows:

[Defense counsel]: One of the elements as the Judge will instruct you
is whether or not this was unexpected or foreseeable. We submit to you
it was not foreseeable. You heard the testimony from Mr. MacLeish
about the number of arrests that the State Police make in a course of a
year, I think 100,000. The State Police have been around for a
longtime, 1920s. Have you heard any other incidents like this being
admitted through the course of this trial? None. None. Is this
foreseeable that this going to happen this one time?18

15
76 A.3d 774 (Del. 2013).
16
181 A.2d 565 (Del. 1962).
17
Reybold Group, Inc. v. Chemprobe Technologies, Inc., 721 A.2d 1267, 1269–70 (Del. 1998)
(citation omitted).
18
App. to Opening Br. at A0463.
7
 Plaintiff’s counsel objected, the basis for his objection being that “[t]his is

finessing the record. There was no testimony from Col. MacLeish about whether

there had been any other sexual events, [the] record is barren on that.”19 The court

overruled the objection and argument resumed.

Plaintiff’s counsel argues that this portion of the State’s argument went

outside the record because Col. MacLeish did not testify as to the number of sexual

misconduct complaints against state troopers over the force’s history. However, it

appears that counsel’s argument was a correct summary and assessment of the

evidence. Apparently, no specific instance of prior police sexual misconduct was

introduced at trial. A party is entitled to argue that the opponent has failed to support

an element of her claim. I see no error in the trial court’s overruling the objection.

Doe’s fifth and final argument in her opening brief involves the issue of

consent. In the trial court, and on appeal, Doe argues that she should not have been

required to prove that she did not consent to the sexual contact as part of her assault

and battery claim. The trial court rejected her arguments, and instructed the jury that

an element of her assault and battery claim was lack of consent on her part.

Doe contends that under principles of judicial admission and judicial estoppel,

the State should not have been permitted to argue that she consented to the sex act

with the officer. This argument is based on the fact that the State charged the officer

19
Id.
8
with sexual extortion, soliciting a sexual bribe, and official misconduct as a result of

the incident.

Judicial admissions are never conclusive and raise an estoppel only in the case

in which they are made.20 As to judicial estoppel, the charges of soliciting a sexual

bribe and official misconduct do not implicate assault or a lack of consent on the

part of the victim. Sexual extortion alleges in the alternative that a person compelled

or induced another to engage in a sexual act. It does not by express terms charge

that the sex occurred without the consent of the victim. The State did not charge

rape or any other sexual offense in which an element is that the sexual contact

occurred without the consent of the victim. Nor does the probable cause affidavit

supporting the offenses allege that the sexual contact occurred without Doe’s

consent. “Judicial estoppel is an extreme remedy, to be used only ‘when [a party’s]

inconsistent positions are ‘tantamount to a knowing misrepresentation to or even

fraud on the court.’’“21 I do not think that standard is established here and I see no

error on the part of the trial court in rejecting Doe’s arguments on judicial admission

and judicial estoppel.

Doe’s more significant argument is that she could not consent to the sexual

contact as a matter of law because she was in custody. She relies upon a Federal

20
Rudnick v. Schoenberg, 122 A. 902, 903 (Del. 1923).
21
Chao v. Roy’s Const., Inc., 517 F.3d 180, 186 n. 5 (3d Cir. 2008) (citation omitted).
9
District Court opinion, Carrigan v. Davis,22 and 11 Del. C. § 1259. The statute

makes it a crime for people working at a detention facility to have sexual intercourse

or sexual penetration with an inmate.23 Carrigan involved such a case and was

influenced by the statute. Neither the statute nor Carrigan have any direct

application to this case. There is no comparable statute governing police detentions

outside of a prison facility. I think Carrigan and the statute were properly

distinguished by the trial court.

In this case, whether Doe consented to sex was properly determined by the

trial court to be a question of fact. After initially denying the sexual contact

occurred, the officer admitted it occurred but said that it was consensual. Despite

the obvious credibility problem with his second story, the officer’s statement was

sufficient to create a question of fact for the jury.

I do not join in the majority’s determination that sexual contact between an

officer and a person in his custody is always without consent of the detainee as a

matter of law, because I think it crosses the line between the proper role of the court

and the jury.24

22
70 F. Supp. 2d 448 (D. Del. 1999).
23
11 Del. C. § 1259.
24
The majority’s research shows that some states have passed statutes prohibiting sexual contact
between a police officer and a detainee in his custody. That research apparently does not reveal
any judicial decision in which a court has held that a detainee in police custody cannot consent as
a matter of law.
10
 When Article IV, § 19 of the Delaware Constitution was being considered at

the 1897 Constitutional Convention, delegate William C. Spruance (later Judge

Spruance) stated that the object of the section is “that Judges shall confine

themselves to their business, which is to adjudge the law and leave juries to

determine the facts.”25 As judges we have heard over and over again that the

“[m]embers of the jury. . . . are the sole and exclusive judges of the facts of the

case.”26 I doubt the jury decided this case on the issue of consent. I think it far more

likely that it decided it upon the issue of scope of employment. But I think the State

is entitled to have the issue decided by a jury, not the court.

Finally, I address § 219 of the Restatement, beginning with § 219(2)(c).27 The

non-delegable duty exception to the general rule that employers are liable only for

acts of employees committed within the scope of employment has generally been

applied to common carriers and innkeepers.28 One of the justifications for imposing

a non-delegable duty upon common carriers and innkeepers is contractual.29 The

25
Storey v. Camper, 401 A.2d 458, 463 n.4 (Del. 1979) (quoting II Debates and Proceedings of
the Constitutional Convention of the State of Delaware, p. 1730). Art IV, § 19 provides that
“[j]udges shall not charge juries with respect to matters of fact, but may state the questions of fact
in issue and declare the law.”
26
Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 711 (Del. Super. 1967).
27
Restatement (Second) of Agency § 219 (1958).
28
See supra p. 59–60 n. 151.
29
"[T]he master may be under such a duty to the plaintiff that responsibility for the servant’s acts
may not be delegated to him. This is true in particular in those cases where the master, by contract
or otherwise, has entered into some relation requiring him to be responsible for the protection of
the plaintiff." Rabon v. Guardsmark, Inc., 571 F.2d 1277, 1280 n.4 (4th Cir. 1978) (quoting W.
Prosser, Law of Torts s 70, p. 465 (1971).
11
contract between the carrier and passenger, or innkeeper and guest, includes an

implied assurance that the passenger or guest will transported or cared for safely,

including the assurance that the passenger or guest will not be subjected to

intentional torts of the carrier’s or innkeeper’s employees.30 No such contractual

relationship exists between the State and a detainee.

While courts in Indiana have expanded the non-delegable duty exception,

courts in other jurisdictions have refused to do so. In Davis v. Devereux, the

Supreme Court of New Jersey declined to impose a non-delegable duty upon a

residential facility where an employee had committed an intentional tort against a

resident who had severe autism and developmental disabilities.31 While Davis

involved a residential facility, not a police department, the resident there was as

dependent upon the facility for his care, safety, and protection as is a detainee in

police custody. Davis discusses other cases which have declined to expand the non-

delegable duty exception. It notes that in Niece v. Elmview Group Home, the

Supreme Court of Washington declined to impose a non-delegable duty in a case

involving a group home for developmentally disabled persons.32 In Regions Bank

& Trust v. Stone County Skilled Nursing Facility, Inc., which involved a sexual

assault by a nursing assistant upon a semi-comatose, quadriplegic patient, the

30
Lainer v. Pullman Co., 105 S.E. 21, 24 (N.C. 1920).
31
Davis v. Devereux Foundation, 37 A.3d 469, 485–86 (N.J. 2012).
32
Niece v. Elmview Group Home, 929 P.2d 420 (Wash. 1997).
12
Supreme Court of Arkansas imposed a traditional duty of care upon the nursing care

facility rather than a non-delegable duty.33 Davis discusses other cases as well. I

agree with Davis and the cases it discusses that “established tort law appropriately

balance[s] the parties’ interests.”34

I would also decline to adopt the last clause of § 219(2)(d) as part of the

common law of this state. In Zsigo v. Hurley Medical Center, the Supreme Court of

Michigan rejected a contention that it should recognize § 219(2)(d).35 In doing so,

it noted the potential breadth of § 219(2)(d). “Because the exception is not tied to

the scope of employment but, rather, to the existence of the employment relation

itself, the exception strays too far from the rule of respondeat superior employer

nonliability.”36 The court also rejected the dissent’s assertion that the court had “the

option of applying the exception in the same tailored manner as demonstrated by the

Vermont Supreme Court in Doe v. Forrest.”37 The court recognized the “danger of

adopting an exception that essentially has no parameters and can be applied too

broadly.”38 I agree with the reasoning of the Supreme Court of Michigan.

For these reasons, I would affirm the judgment of the Superior Court.39

33
49 S.W.3d 107 (2001).
34
Davis, 37 A.3d at 488.
35
716 N.W.2d 220, 226 (Mich. 2006).
36
Id.
37
Id. at 227.
38
Id. at 229.
39
I join in parts II, III, IV and V of Justice Valihura’s dissent.
13