Sherman v. State, N10C-08-178 VLM

Plaintiff James Sherman, administrator of Dawn Worthy’s estate, sued the State of Delaware under respondeat superior for sexual misconduct by Officer Giddings allegedly committed after arresting Worthy for shoplifting in March 2009.
At trial (three days), the jury found the State not vicariously liable; both principal witnesses (the officer and the alleged victim) were deceased and their statements to investigators were inconsistent.
Plaintiff moved post-trial under Superior Court Civ. R. 59(a) for a new trial or to set aside the verdict as against the great weight of the evidence and challenged several jury instructions (scope of employment, foreseeability, and consent).
The State argued there was sufficient conflicting evidence for the jury to resolve credibility, and that scope and foreseeability were properly submitted to the jury.
The Court denied the motions, finding (1) the verdict was not against the great weight of the evidence given significant factual disputes and inconsistent statements, and (2) the jury instructions were legally adequate and did not mislead the jury or improperly shift burdens.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Verdict against weight of evidence	Evidence overwhelmingly showed no consent and coercion; reasonable jury could not find no tort	Evidence was conflicting and sufficient for the jury to weigh credibility	Denied — factual disputes justified jury verdict
Scope of employment (respondeat superior)	Court should have instructed jury to distinguish officer’s "general" duties from his "specific" sexual act; scope favored Plaintiff	Prior appellate rulings addressed summary judgment context; at trial jury may reject Plaintiff’s evidence	Denied — instruction consistent with law and appropriately left scope to jury
Foreseeability (element of scope)	Court should have given Plaintiff’s proposed foreseeability instruction and treated lack of foreseeability as State’s burden/affirmative defense	Foreseeability was a factual issue for jury; Plaintiff bears burden to prove element, not State to prove lack	Denied — proposed instruction was improper; foreseeability correctly left to jury and burden ruled on earlier
Consent instruction	Court should have given Plaintiff’s proposed "No Consent" instruction	Parties could argue credibility in closing; evidence conflicted	Denied — credibility issues precluded special instruction; parties permitted to argue evidence

Sherman v. State, 133 A.3d 971 (Del. 2016) (appellate decision addressing summary-judgment issues in the same litigation)
Doe v. State, 76 A.3d 774 (Del. 2013) (held scope-of-employment questions must be broadly construed and are generally jury questions)
Probst v. State, 547 A.2d 114 (Del. 1988) (standard for evaluating jury charge — reasonably informative and not misleading)
Storey v. Camper, 401 A.2d 458 (Del. 1979) (deference to jury unless evidence preponderates heavily against verdict)
Draper v. Olivere Paving & Constr. Co., 181 A.2d 565 (Del. 1962) (discussion referenced regarding burdens in summary-judgment context)