*1
Vermont A.2d [853 48] 02-184 No. Dooley, JJ., (Ret.), Amestoy, Gibson, C.J., Skoglund, Present: Johnson and J. Specially Assigned 7, 2004
Opinion May Filed 28, 2004 Reargument May Denied Motion *2 Putter, Bradley Myerson, David Manchester and Montpelier, Center, for Plaintiff-Appellant. Associates, Lynn & and Heather E. Thomas Lynn
Pietro J. P.C., Defendants-Appellees. for Burlington, whether a Dooley, the Court to determine requires J. This case deputy perpetrates as the of a who can be held liable sheriff Plaintiff-victim was duty. on intentional criminal misconduct while County Deputy by then-Bennington oral sex performing coerced into (Forrest). nolo voluntarily pled Forrest Richard Forrest Sheriff of 13 behavior violation charges of lewd and lascivious contendere to § 3006. of 13 V.S.A neglect duty § 2601 violation V.S.A. and against employers, action Forrest’s filed a civil subsequently Plaintiff (Sheriff Forrest) County Gary Sheriff Forrest Bennington (collectively Bennington County Department Sheriffs the defend- ants),1asserting injuries several claims of vicarious for the she liability initially suffered as a result of criminal conduct. Forrest was Forrest’s defendant, a named but dismissed him from the plaintiff voluntarily of his lack Superior case because of assets. Court Bennington granted summary defendants’ motion for judgment dismissed Court, plaintiff’s claims. Plaintiff appeals alleging now that the granted summary court for improperly judgment defendants on that, several theories of direct and vicarious hold liability. We on the evidence, correctly record the trial court ruled that defendants are not directly liable Forrest’s misconduct under 24 V.S.A.
summary judgment for defendants was two of proper plaintiff’s on theories of also liability. We hold that there is sufficient summary evidence to withstand the judgment plaintiff’s motion (Second) theory of vicarious under Agency Restatement 219(2)(d)(1958), and reverse and remand. 21, 1997, old, 2. On December twenty years then plaintiff, Dorset, working alone as a cashier convenience store East Forrest, duty Vermont. who and wearing department- was on uniform, badge, handcuffs, issued gun, and entered the convenience store 8:00 p.m. p.m. between and 9:00 *3 This was Forrest’s third visit to the store 6:30 p.m. evening. since that Although particular stop was request, not a prompted specific routinely Forrest checked the store his during part East Dorset as patrol “community policing his function,” pursuant to a contract between Bennington County such, Sheriff’s Department and the Town of East As Dorset. he had become familiar with employees several of store’s and developed a something personal relationship with plaintiff. During some of checks, these routine jokingly Forrest threatened to handcuff or ticket plaintiff. He also bragged exploits about his as a officer police and that he was to “shoot trained to kill.” In the weeks preceding December his at the duration, routine checks store increased in and frequency he apparently more personally plaintiff. became interested in
¶ store, 3. When Forrest entered the on plaintiff telephone with her while attending mother to at the customers check-out store, counter. After those left the customers he took the telephone mother, from plaintiff jokingly and her told who was also an employee Bennington against Plaintiff also sued and the State of but the ease Vermont, County these defendants was and has not this dismissal. dismissed, plaintiff appealed up then store, harassing plaintiff. hung Forrest stop to in that were sexual plaintiff questions telephone began asking and ninety degrees to and He thermostat nature. turned store’s the thermo- readjusting her he had done so. As she was informed to hair, in a and used it stat, ponytail, took of her which was he hold her he liked women her directions. He told move head various them. He that he could control ponytail wore their hair so who away but moved plaintiff, nothing, his arm around who said put then him returned to the check-out counter. from and maga- adult the store’s magazine then selected an from Forrest fellatio. plaintiff picture performing zine rack of a woman and showed depicted in the pertaining After a short conversation to the sexual act store, to her area of the began he maneuver into secluded magazine, he her to He also kissed and fondled perform coerced oral sex. where minutes, away approximately After fifteen she moved her breasts. Forrest, telephoned She then for departed from who soon thereafter. weapon not the sexual assault unholster his help. during Forrest did handcuffs, plaintiff. he to use instrument on nor did threaten either incident, resigned from the 5. As a result of Forrest Sheriffs Police, State Following investigation by an Vermont Department. with, to, a voluntarily pled he was and nolo contendere charged exposing of lewd and behavior for charge criminal lascivious to contact the in violation of 13 “causing penis [plaintiff] mouth charge He also nolo contendere to a pled neglect V.S.A. 2601.” duty engaging “open gross for lewd and lascivious conduct with while in violation 3006.” [plaintiff] assigned patrol duty of V.S.A. three-to-five-years’ all imprisonment, suspended, He was sentenced no placed probation and was ordered have contact with family. or her plaintiff defendants, against alleging 6. Plaintiff filed suit various state and monetary damages injuries
federal claims and she suffered seeking voluntarily as a result of Forrest’s conduct. After dismissed all claims, claims, moved state federal defendants to dismiss her law arguing employee’s that an intentional sexual misconduct could conduct is imputed beyond because such warranted, the trial court employment. Finding discovery further denied defendants’ motion to dismiss. *4 years discovery, 7. After two defendants moved approximately that argument their Forrest’s summary judgment, reasserting
for theory not within the that no scope employment; misconduct was of his 480 liability recognized impute Vermont would Forrest’s defendants; that was no
conduct there evidence to indicate that Forrest, Sheriff Forrest had trained or negligently Deputy that Deputy Sheriff Forrest knew or should have known that Forrest had a propensity assault women.
¶ 8. the Following hearing, granted court motion. The defendants’ court found that V.S.A. which asserted awas basis liability, was not that applicable; undisputed based material vicariously facts defendants were not liable under the doctrine of respondeat superior alternative theories of under (Second) 219(2)(d); Restatement Agency § and that there was no indicating evidence supervised defendants had negligently Forrest. judgment court then entered in favor of appeal defendants. This followed. novo, Our summary 9. is judgment review de and in proceeding review,
with that this applies Court same standard as trial Springfield court. Ry. Agency Terminal v. Transp., 341, 344, Vt. 448, 452(2002). willWe affirm summary judgment when “the pleadings, depositions, interrogatories, answers to and admissions on file, affidavits, together any, if ... that show there is no genuine any issue any party as material fact and that is entitled to judgment 56(c)(3); a matter of law.” V.R.C.P. King Gorczyk, ¶ 7, 175 220, 825 standard, VT Vt. A.2d In applying we give the nonmoving party the benefit of all reasonable doubts and infer King, ences. VT 7. Summary when, judgment required after adequate time for discovery, party fails make showing sufficient to establish existence of an element her essential to case upon which she of proof. Poplaski has burden v. Lamphere, 152Vt. 251, 254-55, A.2d Plaintiff asserts several arguments on appeal of her trial support contention court erred in granting summary defendants’ motion for judgment. Plaintiff (1) argues that: defendants are liable directly for Forrest’s misconduct pursuant to 24 V.S.A. 309 because neglected duty Forrest when (2) he failed to misconduct; arrest himself for his own sexual Forrest’s criminal act intentional was within the his employment, even though was contrary conduct to the wishes instructions of and/or (3) defendants; vicariously defendants are liable under (Second) §219(2)(d) Restatement of Agency if even Forrest’s acts were outside the scope of his each employment. We address plaintiffs arguments in turn.
481 Liability § Under 24 309 I. Direct V.S.A directly Dep- for liable alleges Plaintiff that Sheriff Forrest 10. 309, trial court § 24 and that the uty misconduct under V.S.A. Forrest’s conviction neglect-of-duty to Forrest’s proper weight failed to accord § provides under 309. Section 309 assessing when defendants’ that: for the acts and neglects A shall liable sheriff be of official indemnity take from them. may and bonds of deputies,
his perform any shall deputies may, required, Such and when required of the sheriff. Returns duty may which be official signed be them as sher- doings deputy their acts and shall iffs, their shall deemed to be the acts of official acts be the sheriff. added). § 309 the statutes which
(emphasis Traditionally, upon hold for current version is have been to sheriffs liable applied based negligent Lyman their or malfeasant execution writs. See deputies’ (sheriff (1915) Holmes, 432, 829, for 431, 92 A. 830 liable v. 88 Vt. against party); malfeasant another deputy’s property seizure writ (1877) Smith, 235, to (plaintiff 235 sued sheriff Cowdery v. 50 Vt. execution); failure Buck deputy’s levy for to writ negligent recover (sheriff (1865) 475, deputy’s for may v. 37 Vt. be liable Ashley, Flanagan v. 36 Vt. property); Hoyt, maintenance of attached negligent (sheriff 565, (1864) not sale of attached deputy’s 571-72 liable for knowledge law sheriffs done accordance with and without property (1843) consent); 414, 421 Perry, Charles & Co. 15 Vt. Kimball (sheriff following for direc deputy’s goods not liable sale of attached official); Wetherby v. attorney tion creditors’ because conduct not (sheriff 136, 138 Foster, (1832) neglect levy deputy 5 Vt. liable for upon personal property). execution plaintiff concedes that Forrest’s actions cannot Apparently, those are used in the statute. considered “official acts” as words Instead, argues represent neglect that" actions Forrest’s his In duty he intervene to crime. prevent failed to own because the fact that support argument, plaintiff points particularly neglect duty in violation of 13 V.S.A Forrest was convicted of § 3006. construed to include com- 12. Because Forrest’s duties cannot be assault, we cannot conclude the misconduct a sexual
mitting (cid:127) If, in this litigation supports theory. involved novel plaintiffs the damages sought robbing from the example, resulted another engaged store while Forrest was in sexual misconduct not duties, his performing plaintiffs theory statutory would better fit language.
¶ 13. While failure prevent Forrest’s criminal own acts in some sense “neglect” constitute because a sheriff has the statutory disorder,” ... duty “suppress unlawful 24 V.S.A. we that, construed, do believe reasonably applies these 346-47, circumstances. See at Springfield Ry., Terminal 174 Vt. 453; G.T., (2000) In re A.2d Vt. (Court always statutory leading will avoid construction to absurd or *6 results). irrational interpretation Plaintiffs would effectively render strictly sheriffs liable under the for all statute criminal misconduct of their in on-duty except wholly the deputies, implausible unlikely event that the malfeasant deputy prevented his or her own criminal construed, undertaking. § So impose duty would a legal upon to sheriffs control all on-duty volitional criminal acts of their deputies “absolutely no despite having reasonably foreseeable notice [of those 595, (1987)(refus Day, 598, 157, 159 Smith v. 148Vt. acts].” 538 A.2d impose ing duty military university to to control volitional criminal students, acts of its having “large despite degree a of control over the students,” foreseeable). activities its because criminal acts not As this Court the recognized early in Flanagan Hoyt, case of 36 Vt. at statutory 309), 571 (interpreting predecessor § to 24 V.S.A. an expan § reading sive of 309 “compel sheriffs to have deputies,” no or deny cause them to to important community, services the such as the community policing function that Forrest providing before in sexual engaging plaintiff. acts with 14. Given our reject § construction of we plaintiffs assertion trial that the court weight did not accord proper to Forrest’s conviction neglect for under 13 duty §3006. V.S.A. The charge was that neglected duty by Forrest his engaging in “lewd and lasciviousconduct [plaintiff] assigned patrol duty.” Thus, while to neglect of duty failure perform was his his assigned patrol. Forrest’s failure to perform his assigned patrol is not the of plaintiffs damages. cause The conviction nothing plaintiffs adds case. Scope Liability
II. Within Conduct Vicarious Employment her rejecting court erred contends the trial 15.Plaintiff next for Forrest’s misconduct vicariously are liable claim that defendants of his “Under scope employment. fell that conduct within because master is or superior, respondeat settled doctrine of or employee acts of an servant for the tortious vicariously held liable Brueck to, employment.” scope or during, committed incidental (1999). 1086, 1090 118, 122-23, Univ., 730 A.2d 169 Vt. ner v. Norwich out in employment set scope the elements of adopted have We 229(1). A.2d (Second) See id. at at of Agency Restatement scope of his that a conduct falls within 1091.To establish servant’s that the conduct: must demonstrate employment, plaintiff or her (b) (a)... employed perform; the servant is is of the kind and space the authorized time substantially ... occurs within limits; (c) actuated, purpose least in part, ... (d) master; force is intention- a ease which
serve against unexpect- another ... is not ally used servant able master. 418, 430-31, 703-04
Id.; 173Vt. Roy, Sweet v. if it is conduct of an falls outside employee authorized, far the authorized time beyond “different in kind from that limits, the master.” by purpose or too little actuated to serve space (Second) 228(2);Sweet, 173 Vt. at Agency Restatement A.2d at 704. all 16. Plaintiff that Forrest’s sexual misconduct satisfies asserts *7 Court. adopted by
four
test
prongs
scope-of-employment
Sweet,
prong
disagree.
further than the third
See
We need look no
431-32,
the acts
(inquiry
173Vt. at
that Forrest entered the convenience store to carry community out a event, policing however, function. The forming basis of this suit was undeniably detached from and unrelated to that role. While initially Forrest have gone to store to serve the purpose of his employer, ensuing his sexual misconduct cannot be found to further the goals Indeed, of law enforcement. Forrest person victimized a he was there to protect, exactly contrary to the interests of employer.
¶ 18.This case is unlike
where
those
a law enforcement officialis
overly aggressive in attempting to obtain information from a suspect
or in performing the
suspect.
situation,
arrest of a
In such a
tortious conduct partially implements law
goals,
enforcement
however
inappropriately.
Brueckner,
See
atVt.
¶ 19. Because we decide that plaintiff does not meet the third prong of the scope of employment test, we need not plaintiff’s consider argument the sexual misconduct was not unexpectable, but instead was foreseeable. Liability
III. (Second) Vicarious Under the Restatement 219(2)
Agency (d) ¶ 20. Finally, plaintiff that, claims although Forrest’s sexual miscon- duct was outside scope of his employment, defendants are vicari- ously liable for conduct, that tortious relying on the principles set forth (Second) in the Restatement §219(2)(d). of Agency In its entirety, § 219reads:
2 Forrest’s sexual misconduct also Bennington violated directly Sheriffs explicit County prohibiting sexual Department activities while on policy This while duty. fact, relevant, not determinative in our because “there is no inquiry requirement that the master authorize the Roy, took.” Sweet v. action the specifically servant precise 173 Vt. A.2d 418, 432, 801 694, 704 *8 for Torts of His Servants When Master is Liable (1) of servants subject liability A for the torts his master is their scope employment. in the acting committed while (2) the ser- subject liability A master torts scope employment, outside the of their unless: acting vants (a) the or the consequences, the master intended conduct or
(b) reckless, or or negligent the master was master, (c) duty non-delegable conduct violated or
(d) purported speak the servant to act or behalf of upon apparent authority, and there was reliance principal he was aided in the tort the existence accomplishing agency relation. added). different theories of (emphasis actually Plaintiff asserts two 219(2)(d). §in liability relying upon disjunctive language first employer’s liability clause establishes an for the torts of employees “apparent authority,” based on the doctrine of while the agent second creates for an whose “was aided in accomplishing agency the tort the existence of the relation.” Id. argues Plaintiff that defendants are under both vicariously liable theories. § explicitly adopted excep 21. This Court has not as an rule,
tion to our
seope-of-employment
although
recognized
we have
as relevant in the context of
provision
workplace sexual harassment.
291, 618
286,
v. Dep’t Employment
Training,
See Allen
&
159 Vt.
(1992) (noting
A.2d
that standards courts have
applied
knowledge workplace
sexual harassment to
is in
impute
employers
219(2)(d)).
accord
general
routinely adopted provisions
with
We have
(Second)
Agency
reflecting
Restatement
the common law
Sweet,
432-33,
704-05;
at
of Vermont. See
173 Vt.
801 A.2d at
Brueck
ner,
Certainly, opening general which states proposition that a master is liable for the torts of his or her servants employment, committed of their is in accord while Fayston our current See Breslauer v. respondeat superior. view Dist., Sch. 416, 424, 1129, 1134 (1995) 163 Vt. (citing § 219 for proposition that a plaintiff must show master-servant relationship servant). vicariously to hold master liable for torts of his We have also *9 consistently the doctrine recognized apparent authority, primarily in the context an agent’s authority to enter into a contractual Lakeside v. relationship on behalf of the See Equip. Corp. principal. Chester, Town 317, 324-25, 1174, (2002) 173 Vt. 795 A.2d 1180-81 (apparent authority agent sufficient personal jurisdic to establish Serv., England New Educ. Training tion over the principal); Inc. v. Silver Street P’ship, 148 Vt. 99, 105, 1117, (1987) 528 A.2d 1120-21 (apparent authority recognized not applicable but because no grounds Breen, Blitz v. reliance); for 455, 458-59, 48, 132 Vt. 50-51 (1974) (apparent authority recognized but not applicable because real agent estate did not act with principal’s apparent authority purchase to Co., land Star Rest. v. Metro. plaintiff); on behalf of Ins. 77, 105Vt. Life (1933) 163 A. (stating general rule that “the tort of an agent is within the course of his when... he is endeavor ing promote to the principal’s business within the of the actual or apparent omitted). authority”) (emphasis original
¶22. Thus, consistent with our previous references 219(2)(d), expressly we adopt provision of the Restatement as applicable in assessing whether an employer has the tortious conduct of an employee when that conduct falls outside the scope of or result, her employment. As a analyze we both of plaintiff’s arguments under this section. Apparent Authority
A.
that,
23. Plaintiff argues
pursuant
to the first clause of
§219(2)(d),
vicariously
defendants are
liable for Forrest’s
sexual
misconduct under the doctrine of “apparent authority” because the
police
instruments of
power provided
Forrest,
such as a gun, badge,
uniform,
can “reasonably create an impression that the employer
authorized the deputy to coerce
rule,
sex.” “As a general
apparent
authority is relevant where the agent purports to
power
exercise a
have,
which he or she does not
as distinct from where the agent
Indus.,
threatens to misuse actual power.”
Burlington
B. Aided in the Tort Accomplishing Finally, 25. plaintiff argues summary judgment that was inappro- priate a question because of material fact remains as to whether defendants vicariously should be held liable under the last clause of 219(2)(d), § which authorizes liability for torts committed outside the of the if servant’s the servant “was aided in the tort the existence accomplishing agency relation.” Plaintiff argues agency relationship that aided the commission of (1) the tort in ways: by giving unique two Forrest access to and (2) tort; authority plaintiff over to commit the by giving Forrest instruments, particularly firearm, the uniform and prevent resistance. Because we conclude there are questions of material fact issue, regarding this we reverse the trial grant court’s of summary judgment on this issue. outset, At 26. we acknowledge theories, must that plaintiffs them,
assuming support facts appear to fit squarely within the plain language 219(2)(d). of the last clause of Plaintiff that alleges Forrest could not have committed the sexual assault plaintiff oh except by virtue deputy of the sheriff position conferred on him defend- In the wording section, ants. of the plaintiffs theory is that Forrest’s appointment and his official powers responsibilities “aided in accomplishingthe tort” on plaintiff.
¶ 27. As is fully below, more developed however, we are convinced that we must look further than the plain language of the clause. Indeed, as is apparent decision, from a reading of this the trial court dissent, opinion and the we must first choose among conflicting interpretations of the Restatement language before we can apply to the facts of choice, this case. In making this we are guided by three important points. First, although only a limited number of decisions from other
courts have
§219(2)(d)
relied
upon
last
clause
reaching
comparable decision, the language has been comprehensively and
persuasively construed in recent decisions of the United States
Court,
Supreme
Indus.,
Burlington
Ellerth,
Inc. v.
¶ 29. In Faragher, the issue was whether an employer could be liable “for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting employment Faragher, discrimination.” 524 U.S. at 780. The Court concluded liability that could not be found under the rubric that the id. at 798- of his acting employment, within the supervisor was language the tort” accomplishing to the “aided in and turned 219(2)(d). of the reading language: a narrow rejected § The Court 219(2)(d) however, appli- § has no City, contends of the qualification here. It that the second argues
cation subsection, accomplishing to a servant “aided referring relation,” agency merely of the “refines” by tort existence it, vicariously employer which holds the preceding the one apparent authority____But its liable for servant’s abuse untenable; it render the second reading narrow is would (and 219(2)(d) entirely superfluous almost qualification to the effects eyes potential would seem to ask us to shut our invoked). supervisory authority, explicitly even when make clear accompanying The illustrations this subsection only involving apparent that it covers not cases the abuse of authority, but also cases in which tortious conduct is made by agency or facilitated the existence of the actual possible relationship____ that in agree [plaintiff] implementing
We therefore
with
li-
employer vicariously
Title VII it makes sense to hold an
for some tortious conduct of a
made
supervisor
possible
able
aided-by-
of his
and that the
supervisory authority,
abuse
§in
of the Re-
agency-relation principle embodied
provides
appropriate starting point
statement
for deter-
liability for the kind of harassment
here.
mining
presented
219(2)(d),
Id. at 801-02.
In describing
application
further the
supervisor-employee relationship provides
Court noted that
access, and the
is such that the
who
power
supervisor
employee
is faced
harassment
is not in a
supervisor
position
true with a coworker. Id. at 803.
defend,
normally
Finally,
as is
recognition
liability
supervisor’s
Court stated that
for a
actions
party
guard against
the burden on the
that can
misconduct
places
Id.
monitoring.
through screening, training
¶30.
case,
Ellerth
day
decided on the same
companion
Faragher,
addressing
whether an
has vicarious
Title
creates a hostile work environment
supervisor
under
VII when
actions,
to a
based on
threats
subordinate of adverse
sex,
Again,
does not fulfill the threat.
Indus,, Ellerth, Inc. (1998), relying U.S. the Court noted that it was (citation omitted). general agency.” “the common law of The Court noted that state court id. decisions could be but “instructive,” often relied federal they decisions, upon Agency starting and found the Restatement of general a useful to find the common point law. Id. It went (Second) through the various Agency sections of the Restatement follows from the United introductory point 32. Our second States It is not to too narrow an Supreme important adopt Court decisions. 219(2)(d), last clause of it is interpretation equally impor- but are adopt interpretation. tant not to too broad We sensitive to expressed by plaintiffs arguments concern the trial court that could principal lead to a rule that makes a liable for all intentional torts of an agent Supreme in all circumstances. Just as the Court decided that could not be read to make for all employers liable acts of supervisors against employees, *13 sexual harassment of we must simi- larly any upon. narrow rule we decide introductory 33. Our third deals with the of this case. point context Faragher very
The Court in
careful to
the
analyze
policy judg-
was
219(2)(d)
§
ments behind
and
it to
apply
implement
policies.
those
We
similarly
policy
examine some of those
issues in the context of an
intentional sexual tort of a law enforcement officer
on a
perpetrated
community
charged
citizen the officer was
as
of his
protect
part
community policing
Faragher
function. The
Court
three
emphasized
219(2)(d)
§
main considerations in
in the
applying
supervisor-employee
the
for contact
relationship:
opportunity
by the relationship;
created
powerlessness
employee
the
of the
to resist the
and
supervisor
prevent
contact;
the unwanted
and the
opportunity
prevent
guard
and
against the conduct.
¶ 34. What makes the circumstances of this case virtually unique from a is the policy perspective extraordinary power that a law enforcement officer has over a citizen. A number of courts have talked power finding about this in in involving cases sexual See, assaults police e.g., Applewhite officers. v. City Baton of 219(2)(d) § agency centered on as the most useful. It then the “aided in the finally applied 219(2)(d) §of the situation before it. Id. at 760-65. The relation principle” analysis Raton, Faragher City (1998), v. Boca U.S. 801-02 is and noted in similar, as of 219(2)(d), meaning language the a text, Court resolved over the of the dispute holding “aided-by-agency-relation a not refinement of merely principle” authority. apparent course, It the nature of the common law that is, decision every appellate represents nothing of the common and law, Court decisions development Supreme suggests integral are not the resolution of Indeed, they part process. Faragher meaning over the the kind of decision that dispute exactly engaged best defines and the common law. No common-law court in this develops highest court would that a common- process, certainly country, expect applying law decision on one set of facts would have no influence decisions future legal same factual scenario. a different principle (La. 119, 121 1979), Mary City M. v. Rouge, App. 380 So. 2d Ct. (Cal. 1991)(en banc). 1341, 1349-52 814P.2d Angeles, Los ¶ 35. M. is and contains this rationale Mary explicitly policy-based holding: of the part outset, that society granted police
At the
we observed
has
extraordinary
authority
citizenry.
officers
over its
power
acting
An officer who detains an individual is
as the official
state,
representative
power.
with all
its coercive
As
symbols
given
visible
of that
an officer is
a distinc
power,
car,
uniform,
and a
one
tively
badge,
gun.
marked
As
commented, “police
court
officers
the most awe
[exercise]
some and
that a democratic state
dangerous power
possesses
—
to its residents
to use
force
respect
power
lawful
to arrest and detain them.” Policeman’s Benev. Ass’n of N.J.
(3d
1988).]
Washington
F.2d
Cir.
Tp., [850
Inher
ent in this formidable
is the
power
potential for abuse. The
resulting
cost
from
of that power
misuse
should be borne
community,
because
substantial benefits that the
community derives from the lawful
of police power.
exercise
M.,
Mary
rationale,
We particularly duty note that Officer Crowe was on *14 armed, uniform and and was unit at operating police time of this incident. He was to separate plaintiff able companions from her of the authority because force and the position which he held. He took her into police custody and then committed the sexual her in upon abuse the vehicle provided for his employer. use
A police
public
officer is a
servant given
pub-
considerable
lic trust and
Our
authority.
jurisprudence
review of the
indi-
that,
cates
almost uniformly, where excesses are committed
officers,
by such
their employers are held to be responsible
for their actions even though
those actions
be somewhat
removed from their usual
unquestionably
duties. This is
case
position
because of the
of such officers in our society.
Applewhite,
¶ 36. This
power
especially pronounced when the tort is commit-
ted on a citizen the law enforcement officer is charged
protecting.
with
The Faragher
particular power
Court noted the
of an employment
supervisor
employment
who could inflict adverse
actions on a resistant
only
supervisor placed
position
sexually
Not
is the
to
employee.
employee,
prevents
employee
harass the
but the fear of retaliation
manner,
resisting
from
See
commit the tort the can In a relationship provide. very way, similar a law enforcement officer unique has access a citizen who is the law enforcement depending upon protection. officer for We are struck modem philosophies how law enforcement increase the significance of factor. community this We live now the era of result, As a policing. emphasis police prevention work is more on and interaction with community members to create conditions that Stevens, inhibit crime. See D. Community Policing and Police (D. Leadership Policing Community Partnerships ed., 2001) Stevens Prentice Hall (community policing involves “a preventative response public through delegation order a level of authority community members and line officers as a response occurred”); future crimes as to a opposed response after crimes have Hartnett, Skogan W. & S. Community Policing Chicago Style 5-9 (Oxford 1997) (defines Univ. Press community policing explains that police are “reorganizing provide opportunities' for citizens to come into contact with them under circumstances that encourage information exchange, the development trust, of mutual and an opportunity for joint activities”); Waldeck, or coordinated S. Cops, Community Policing, and the Social Norms Approach to Crime Control: Should Others?, One Make Us More with the Comfortable 1253,1254 (2000) Ga. L. Rev. (defining community policing).This role requires community place members to confidence and trust in law enforcement officers partners crime, as in preventing as “Officer Thus, Friendly.” the interaction between Forrest and case occurred because Forrest acting plaintiffs protector and presence his visible discourage would those who might want to rob the convenience store.
¶ 38. Other courts have noted the effect unique of a access law enforcement officer on liability. example, For the Seventh Circuit Court of Appeals noted in a case where an sexually officer *15 girl routinely he drove home so she would thirteen-year-old
molested a out after curfew: not be employee police employer is a male officer whose
[W]hen intimidating authority pri- has invested him with to deal advantage teenage girls, taking vate with troubled authority proximity privacy give opportunity girls him to extract sexual favors from these should be suffi- ciently within the of his to employer-conferred powers orbit the doctrine of into even bring respondeat superior play, though acting he is not to further the but employer’s goals instead is on a frolic of his own. (7th 1997) (internal Waymire,
West v. F.3d Cir. citations (8th omitted); States, see also Red Elk v. United 62 F.3d 1995)(in Cir. case where officer picked up young violating woman for curfew, court held “it was also foreseeable that a male officer with authority pick teenage to out alone at in violation of the up girl night might curfew tempted Claymore violate his trust. had that office, opportunity because of his employment, trappings of his enforce.”). policy the curfew he towas Finally, relied on the Faragher greater opportunity that em- ...; had to
ployers
“guard against
by
misconduct
supervisors
employ-
them,
greater opportunity
them,
ers have
and incentive to screen
train
and monitor
performance.”
their
constructions
We start
the superior
with
court’s
construction under which it held that the
clause
apply
last
does not
to
the facts of this case. The
court
that
superior
recognized
language
the
fit,
appeared
the section
but
that a “plain reading”
concluded
the exception contained in the last
general
clause would “eviscerate the
scope of
rule”
ways
applica
and looked for
to narrow its
tion. It
on the
adopted Gary
settled
limitations
in
59
Long,
F.3d
1391, 1397-98(D.C.
1995),a
Cir.
sexual harassment case
under
brought
Title VII
Rights
of the Civil
Act. Gary
two limitations on the
adopted
broad
First,
the
coverage
exception.
drawing on
examples
219(2)(d)
§
official
as
comment
described in the concurring opinion
Costle,
(D.C.
983,
1977) (MacKinnon,
in Barnes v.
561 F.2d
J.,
Cir.
concurring), the court
held that
makes
exception
only
liable
if the tort
“‘accomplished by
instrumentality,
or
”
through conduct associated
the agency
with
F.3d
Gary,
status.’
Second,
it adopted
§
a limitation from the comment to
219(2)(d).
§
section cited in the
Gary,
comment to
Liability upon position is that the agent’s facili- [tort], consumption tates the of the in that from the point person view of the third the transaction seems its regular on face the agent and in appears acting ordinary course of the business confided to him. (Second) §
Restatement of Agency cmt. a. court added from a § comment to 166:
If a person has information which would lead a reasonable man agent to believe that the is violating the orders that the principal principal or would the agent not wish to act under the circumstances known to the he agent, cannot sub- ject the principal to liability. §
Id. The superior cmt. a. court applied this second limitation in part 219(2)(d) to find that the exception the last clause did not apply.
¶ 41. We
holding
conclude
did not
Gary
survive the Su-
Court
preme
decisions in
We
Faragher
Faragher
Ellerth.
read
the transaction
by Gary,
imposed
limitation
the second
rejecting
acting
to be
agent appears
and the
a third party
“regular”
seems
clearly
limitation is
This
by the
authority given
principal.
within
U.S. at
Faragher, 524
analysis. See
authority
apparent
refinement
apparent
the abuse of
(§ 219(2)(d)
involving
only
cases
“covers
made
possible
conduct is
tortious
cases in which
authority, but also
also
relationship”); see
agency
the actual
existence of
by the
facilitated
1998)
(1st
(argu-
Cir.
F.3d
Corp.,
Island
Costos v. Coconut
author-
apparent
is a branch of
§of
that the last clause
ment
words,
it
and renders
of the
meaning
the plain
ity is inconsistent
Faragher
analysis
we have embraced
Since
superfluous).
its second
Ellerth,
holding Gary
particularly
reject the
we
court.5
limitation,
superior
upon by
as relied
219(2)(d),
such that
narrowing
method of
42. An alternative
the recent decision
prevail,
presented
would not
*17
2003
Transp.,
in Mahar v. StoneWood
Judicial Court
Supreme
Maine
that
Mahar,
held
apparently
the Maine court
63, A.2d 540. In
ME
or deceit. Id. at
219(2)(d)
misrepresentation
in cases of
only
§
applies
¶21.
upon
the court first relied
this conclusion
reaching
In
219(2)(d)
provides:
§
which
comment to
(d)
princi-
in which the
includes
situations
primarily
Clause
ap-
is
conduct which within
upon
is based
pal’s
servant,
speak
one
purports
of a
as where
authority
parent
an-
interfering
another or
defaming
in
for his
authority may
§§
Apparent
See
247-249.
other’s business.
(§§257-264),
even
of an action of deceit
also be the basis
situations,
In other
the ser-
§§
See
265-267.
harm.
physical
position
his
to cause harm because
may
vant
be able
of
messages
false
sends
telegraph operator
as where a
agent,
§
Again,
third
See 261.
persons.
to come from
purporting
prin-
him for an undisclosed
a store
manager
operated
of
of
posi-
the customers because
to cheat
cipal is enabled
is not ex-
§
of such situations
tion. See 222. The enumeration
the area within
haustive,
only
intended
to indicate
and is
liability for acts of his
subjected a master
which
employment.
not in
servants
1995),
(D.C.
Gary Long,
v.
provided liability. The defendant'was a trucking company employed driver who assaulted in plaintiff automobile driver road rage thought incident which the truck driver that plaintiff was him driving high behind with his beams The court that the on. found deceit, truck engaged misrepresentation driver no or and therefore 219(2)(d) § not apply. did Id. at 24.
¶ Although we disagree do not with the holding Mahar court, facts persuaded by before the we are not its The plain rationale. language of the section directly against into importing require- it a ment of misrepresentation or deceit. one of the Although hypothetical deceit, the comment misrepresentation involves or the other does not, and the comment not limit does the reach the section language Indeed, in this respect. the comment specifically states that “enumeration such situations is not exhaustive.” Restatement (Second) Agency 219(2), cmt. e. most Finally, important use of the last law, clause has-been in sexual harassment often application does not involve deceit misrepresentation. *18 Thus, 219(2)(d) § the Mahar construction also inconsistent with Faragher and Ellerth. important, 45. More we doubt that the Mahar would decision
determine in analysis the result this case. As our of the consid- policy shows, erations this is a vastly different case from Mahar. The by difference is shown the Maine in analysis court’s which Costos 219(2)(d) the Court Appeals applied as of Maine law to hold part that the owner of an inn vicariously manager was liable when the inn entered of plaintiff guest raped the room a master using key her. The holding following of the Costos court is para- contained graph: focus of viewing through case narrower
Even
§219,
Gary
which the
court
commentary
Restatement
defendants are well within
helpful,
found
agency relationship
of his
liability. By
virtue
defendants,
inn,
manager]
as
of the
was
manager
[the
rooms,
room,
keys
including
with the
to the
Costos’
entrusted
manager
Because he
of the
at the Bernard House.
was
inn,
jury
knew
where to find
could
exactly
Costos.
[he]
the inn
had
to be at
or
manager]
responsibilities
[the
find that
short,
at
In
he was
night.
to have others there late
because
that Costos
agent,
manager]
the defendants’
knew
[the
House,
at
he was
to find Costos’
staying
the Bernard
able
night,
key
he had the
the room and used the
room late
door,
slept,
into bed
her as she
key
slip
to unlock
beside
her.
rape
Mahar,
In
court distinguished,
analysis §219(2)(d) only other we have considered construction the view of above. Costos is consistent with a number commentators vicariously should liable torts employers by for committed employees involving job-created authority, particularly an abuse of al., involves See et Jorgenson where the tort sexual abuse. L. Trans- Liability Liability: Employer Sexual Misconduct for ference of (1995);Note, 60 Brook. L. 1435-39 A Therapists, Matter Rev. Liability Trust: Vicarious the Intentional Imposing Employer for 167,183-85 (1995);Note, L. Employees, “Scope Torts D.C. Rev. Holding Employers Vicariously Liable Employment” Redefined: Their Minn. Employees, Sexual Assaults Committed L. Rev. 1513,1527-30 the articles cases where analyzes Each of courts principles, have found vicarious under traditional but the situations is debatable and viewed where analysis explicitly better job give created powers nature and should *19 torts liability rise to vicarious even for certain intentional outside the scope of the employment.
¶
Nevertheless, we
Costos in
adopt
do not
the full rationale
introductory
decision. Our
is our second
primary
point
this
reason
above,
it
a
that we find
best to
rationale as narrow
adopt
possible
as
guided by
Supreme
under
circumstances. We are
Court’s
Ellerth in
to
beyond
necessary
decision
venture
what is
to decide
(“The
agency
the case. See
that This is á case Legislature. the officers must be made enforcement traditional role of discharging our in which we are impression of first the we seek to follow Exactly law. because defining the common we country, in this jurisdictions developed common law as it has law. See appropriate to find the Agency Restatement of have used the. Contracts, Institute, the Law of I Restatement American Law (1932) of a Restate purpose the (explaining introduction viii of the common orderly of an restatement preparation ment is “the law). this, saying In we do not shirk uncertainty in the law” to reduce and changing to the needs “to the common law duty adapt from our Hosp. of Vt., Med. Ctr. Hay v. of this state.” people conditions of the like 939, This is not a case 496 A.2d 145 Vt. Colchester, 270, 272-73, Hillerby v. Town of 167 Vt. law
(1997), long-standing a common our action would reverse where which it has has endorsed and on Legislature which the principle Mary majority justices. M. justice, George, who one of the Justice new replaced significance who from the fact that those dissent in this I draw no case, to the Contrary joined Mary or that are M. continue disagreed to adhere their with they position Mary Mary significant, however, M. I do it justice who did not sit on find additional Although Court has not the California M. remains the law of California. Supreme distinguished being where it is revisited the decision since appropriate, applied, e.g., Maria D. v. Westec Residential See, Court of in decisions of the California Appeals. (Ct. 2000) Inc., (Mary Security, M. does not 326-27 102 Cal. 2d 326, apply App. Rptr. Glendale, (Ct. City guard); 2d 1 Thorn Cal. App. a Rptr. security rape by private setting 1994) (Mary against of fire marshal M. does not to suit for action city apply inspecting). as well as in building cases, in these to a the marshal was analysis fire Oakland, District, M., School is Group, and John R. v. Insurance Lisa Farmers Unified argument this case cannot strong that the circumstances in to the dissent’s a response distinguished the intentional tort is committed from others where by person rationally over a vulnerable with a person. authority position Indeed, relied. have our so that we are narrowly holding we tailored If Legisla- confident future controlled that few cases will be it. disagrees ture our various behind balancing considerations decision, a different rule. it can should enact 219(2)(d), to the we have inter- application 50. We turn now it, above, superior facts of As we set out preted to the this case. court defendants it found that granted summary judgment to because plaintiff within the specific showing bring had not made herself section; (1) language of the the court found: even if Forrest specifically, duty, was able to information while it not gain about on was plaintiff (2) not him “pursuant investigation”; position to an official did aid gaining information about free to enter anyone because (3) questions; the store never gun, and ask Forrest used his handcuffs crime; (4) or other in accomplishing instrumentalities even if crime, Forrest had committing used instrumentalities authorized; (5) reasonable would use is person know that such there is no evidence that the of his in front of presence police car warded, car patrons. apparent rejection off As from other our limiting court, construction of adopted by the we superior do not find the fourth reason We disagree rely relevant. that we can *21 deny other summary judgment, generally they reasons because are based on inferences that been favorably have not viewed most the plaintiff required by summary judgment our standard. See King, 2003VT 34, at
¶ 51. The issue how gained plaintiff Forrest access to all alone in the store is disputed. One witness described that Forrest had been asking questions about plaintiff’s work schedule. He entered store when another employee working was also and and bought food left. He reentered about fifteen to thirty minutes after the employee second went off duty and loitered until all parked customers left. He his cruiser in front the store with the parking lights plaintiffs on. When mother called plaintiff, Forrest took the telephone, terminated the hung conversation and it up.
¶ 52. The evidence went special to Forrest’s to plaintiff access cre- job ated his enabling and him to commit the tort. trial court concluded that the plaintiffs information about schedule was not gathered investigation in an by anyone and could have been obtained on inquiry, and that there evidence was no that Forrest deterred anyone entering from the store. believe that a could jury We conclude that questions others could ask the kind of the kind gain a law enforcement status as special did without his
access Forrest on their own Moreover, conclude based jurors could officer. parking lights with its of the cruiser presence that experience that We do not believe entering from store. persons deter would special that Forrest did not have a matter of law court could find as the agency the existence of access created plaintiff: access to of the tort. that aided the commission relationship instruments, other respect weapons, to Forrest’s 53. With the fact that upon court relied injury, superior to inflict ability do plaintiff. instruments on We gun never used his other Forrest of actual use was determinative. the absence of evidence not believe came, from entirely, on the issue almost bearing 54. The evidence her testimony aspects support her has that both deposition; plaintiff’s her on the She testified that Forrest told case and that of defendant. gun if used his he would shoot to of the sexual assault that he ever day her grabbed she when Forrest complained kill. When asked whether side, head from side to she answered: pull and used it to her ponytail along just I with it he woüld just hoping A. kind of went somebody And I go hoping leave and back to work. — — um, had a really I he was con- would come store. I he had a He had hand- trolling power gun. over me. mean — — — I didn’t I didn’t I don’t cuffs. that Forrest never threatened to use acknowledge She went on to call why telephone or handcuffs. asked she didn’t use the gun When cousin,” her help, “kept thinking she answered first she about and then that she was who was killed in a domestic violence incident Once happened. again, “too scared” and knows what would have “who made her fear that Forrest gun.” this man had a When asked what if he use the she answered that it was the comment that gun, would kill. After gun, ever used the it would be to shoot to described assault, her questions thoughts the sexual she answered about motives as follows:
Q. why you were intimidated any Is there other reason Richard Forrest? *22 his, I mean he a officer. power. police
A. Just was Q. Well, about you any problem calling police didn’t have police allegedly raped you, right? officerwho Right. A. why you you felt that
Q. I mean was there some reason po- he was a something help yourself couldn’t do because lice officer?
IA. don’t know. mind?
Q. your Did it even enter into I guess
A. not. Q. just big guy physically forcing He who was Right. want, you something you right? to do didn’t Objection. ATTORNEY MYERSON: Q. Right? LYNN: ATTORNEY
I,A. I don’t know. Well,
Q. you just don’t remember? —just
A. I do I I if remember. don’t know it was because of — his uniform or I I don’t know. been;
Q. may It have it not have been?
A. Yes.
Q. you just At this don’t point, remember? — — — just
A. I I do I I don’t I don’t remember. know. rely primarily 55. Defendants on the last statements above as showing that the fact that had police nothing Forrest was officer plaintiffs upon do with submission to the sexual assault. Plaintiff relies her earlier along statements she went because Forrest had her controlling power gun. over because of the handcuffs and the ¶ 56. We cautioned “in granting summary judgment have about any dispositive requires cases which resolution of the issue mind, determination of state of the fact finder normally should be given opportunity credibility make a determination of the witnesses, and the demeanor of the of mind witness whose state is at 653, 653, Barbagallo Gregory, issue.” 150 Vt.
(1988) (mem.). Here, the extent to which Forrest’s as a law position officer, handcuffs, him gun enforcement with the to force enabled him persuade plaintiff perform significant fellatio on without *23 physical help disputed. goes resistance cries for issue mind, plaintiffs state of not we do believe that her state of mind can be determined as a matter of the summary judgment law from A jury record. could find based on this evidence that despite the fact that Forrest never used or threatened to gun plaintiff, use his on position implements sufficiently intimidated and scared him to commit enable the tort.
¶ In summary, 57. we find that none of the reasons advanced summary trial court warrant judgment for defendants on the 219(2)(d) claim.
IV. Conclusion ¶ Although 58. we conclude that the superior correctly court held that defendants were entitled summary judgment on the claim under 24 V.S.A. 309 and on the theories of vicarious liability we have examined in the past, we also conclude that a fact-finder could find §219(2)(d) vicariously defendants liable under of the Restatement (Second) Agency, theory of of liability expressly we adopt. Specifi- cally, the fact-finder can find that Forrest was in accomplishing “aided relation,” tort the existence of the agency as we have defined language this decision.
Reversed and remanded. Skoglund, J., dissenting. I do 59. quarrel with the Court’s (Second) § of adoption of the Restatement Agency exception to our scope-of-employment rule for of determin- purposes submit, ing however, vicarious I liability. that in application its broad case, the last clause of that section to the facts of specifically sexual assault committed a law enforcement officer acting while the scope employment, outside the majority has created a threat of liability vicarious that knows no borders. the majority While limits its holding sexual assaults committed by “on-duty law enforcement officers,” ante, the standard that it applies articulates to a broad range employees whose grant duties them unique access to others, and authority teachers, over such as physicians, nurses, officers, therapists, probation officers, and correctional to name a but observed, few. As the trial aptly court here the Court’s interpretation could virtually general scope rule.” “eviscerated Whether today’s holding aberration, stands as a legal a special departure general from the principles respondeat superior created exclusively for law enforcement agencies, or the first in a line new employers liability public and private imposing cases tell. In either only time will employees, of their the sexual misconduct done, not will have case, damage and unwarranted irreparable been singled disparate out for agencies unfairly enforcement only to the law em- decision, private every public but to by today’s treatment spate the inevitable against to defend itself ployer compelled Therefore, respectfully I today’s ruling. seeking to extend lawsuits dissent. law, the negligence imposi of care in finding Like the of a duty not from the agency flows principles of vicarious under
tion rules, that it policyjudgment from a considered rote but application *24 for the harmful employer to hold an liable is fair and reasonable Souter, for the United writing As Justice employee. actions of its Raton, 524 City v. Boca 775 Faragher U.S. Supreme States Court genuine “In there is a (1998), the instances which cogently observed: conduct he for harmful question employer’s responsibility about authorize, that the conduct falls within the holding did not in fact a not of fact ultimately expresses a conclusion but scope employment indefinite, is phrase’ liability] ‘devoid ‘highly [vicarious of law.... [T]he a formula to meaning ‘obviously in itself and is no more than bare and unauthorized acts of the servant for which it cover unordered charge liability, is found to the master with as well as expedient be to exclude other acts for which it is not.’” Id. at 796 (quoting W. (5th al., 1984); et of Torts 502 ed. Keaton Prosser and Keaton Law Harnsmut, (Ct. 706, Yamaguchi 130 Cal. 2d 713 Rptr. App. see also 2003) (“[Vicarious] fault, liability not on the but on employer’s is based should bear the of harm created public policies concerning who risk the employer’s enterprise.”).
¶ 61. In its here devotes lengthy opinion, majority considerable meaning opaque phrase attention to doctrinal debate over the nonbinding agency, yet in a of the restatement of the law of provision barely policy holding addresses the broad ramifications of its decision a sexual county department vicariously sheriffs liable for assault the normal by deputy acting entirely scope committed sheriff outside respect, majority’s I that the his duties. With submit inadequate holding, is so and that analysis support extraordinary such a should be left to significant expansion public entity all of the social and equipped underlying the branch best to consider ramifications, economic the Legislature.
506
¶ 62. “Under the settled doctrine of respondeat superior, an em- ployer vicariously or master is held liable for the tortious acts of an to, or servant employee during, committed or incidental scope Univ., employment.” 118, 122-23, Brueckner v. Norwich 169 Vt. (1999). A.2d recognized We have that there are circum- intentional, stances where even the unauthorized torts of an employee may be seen as “intending advance the employer’s interests” and therefore fairly within the scope employment. considered Sweet v. 418, 431-32, 173Vt. Roy, Outside the context — of sexual in workplace, harassment a special however more case — fully discussed below this Court has never held that an employer vicariously liable a sexual assault committed an em- ployee.7 Indeed, consistent with Vermont precedent, the majority
accurately Deputy characterizes Forrest’s crime as “rooted in prurient — self-interest” rather than as intended to advance the interests of his n — and therefore outside the proper employ- Ante, Nevertheless, ment. at 18. relying on an ambiguous rule cited by the United Supreme States Court in workplace two discrimination decisions, Faragher, Indus., U.S. at and Burlington Inc. v. Ellerth, (1998), U.S. majority concludes that Deputy — Forrest’s employer the Bennington County Sheriffs Department — may vicariously be held liable to the victim of his crime. The majority’s path startling conclusionis worth exploring.
¶ 64. The in question rule set forth in of the Restate- (Second) ment of Agency, provides which that a master is not subject *25 liability to for the torts of a acting servant outside the of em- scope ployment unless “the purported servant to act or speak to 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 the (Second) relation.” 219(2)(d) Restatement (1958). of Agency While — — acknowledging as indeed it must that there was no evidence the Department had conferred upon Deputy Forrest the “apparent authority” to in engage assault, sexual the majority nevertheless concludes that there was disputed sufficient evidence that he was 7 Derivative or vicarious of an for the intentional misconduct of an liability employer distinguished, is to be of from an employee course, direct for the employer’s Univ., negligent hiring or Brueckner v. Norwich of an supervision employee. Vt. 118, (1999). allegation There was 1086, 1093 no or evidence here, however, the assault was the result of the Sheriff’s failure to Department’s screen, adequately or train, Forrest. supervise Deputy survive agency the relation” in the tort to accomplishing “aided conclusion, majority relies In summary judgment. support the United States Ellerth, cases in which companion Faragher on employer an the circumstances which addressed Supreme Court 1964, for Act of liable, Rights Title VII of the Civil held under an against employee. aby supervisor perpetrated sexual harassment upon had drawn a court decisions that numerous lower Observing the Restatement enumerated in principles law variety agency Souter, (Second) conflicting holdings, Justice to reach Agency proper cautioned that Faragher, “[t]he for the Court writing of indefinite application ... calls not for a mechanical analysis see, 219, 228, §§ Restatement, g., e. factors set forth in the malleable that would a support an into the reasons inquiry but rather the scope to held within harassing ought behavior conclusion view.” 524 opposite a and the reasons for supervisor’s employment, added). (emphasis at 797 U.S. Congressional policies underly- Court concluded that — workplace encourage to
ing prevent Title VII harassment and establish reliable and policies to anti-harassment employers adopt — internal mechanisms would be well served grievance accessible supervisory liable the misuse of holding employer vicariously an when technically employment, if outside the creates authority, even alter the or hostile environment terms pervasively a work sufficient tangible negative of a or results in a employment conditions victim’s In found “that the aided- holding, decision.8 so Court employment §in by-agency-relation principle embodied the Restate- starting point determining liability ment provides appropriate at 802. presented Faragher, for the kind of harassment here.” U.S. however, that explain, relying The Court was careful to distinguishing the two that where the discrimination, In Court explained types tangible firing, failing such as misconduct results in action, supervisory employment reassignment, it an official act of act,” promote, “requires enterprise, company Indus., Burlington act of the and thus “becomes for Title VII employer.” purposes Ellerth, (1998). involving tangible Inc. v. sexual harassment not 524 U.S. For imposing the Court found that decision, liability upon but would incentives Title also VII, provide promote policies employer recognized defense that it that the should be able to assert as an affirmative might care avoid harassment and to eliminate it when it “had exercised reasonable complaining had to act with like reasonable care to and that the failed occur, employee Raton, City safeguards____” Faragher v. Boca advantage take employer’s U.S. 775, 805
508 219(2)(d)
§ its intention was not “to make a pronouncement of agency- in general,” law adapt agency but “to concepts rather to the practical objectives of Title VII.” Id. at 802n.3.8 Faragher decisions, 66. Since the and EUerth courts and commen disputed tators have the proper scope of the “aided-in-aecomplishing” 219(2)(d) clause of outside the Title VII context. Some have severely criticized the Court for distorting the principles vicarious liability §219(2)(d), embodied in arguing the Court fundamentally misinterpreted the second clause completely independent of the first, and that properly understood it applies only agent where the “purported speak to act or on behalf of the principal and he was aided in accomplishing the tort the existence of the agency relationship.” P. Dailey, All in Day’s Work: Employers’ Liability Vicarious Harassment, Sexual 517, 104W. Va. L. Rev. According to critics, the result of that misunderstanding, elsewhere, if applied would “vastly be to expand vicarious tort liability, and would make the scope of employment requirement largely Others, superfluous.” Id. relying §219(2)(d) on the history of and the debates among the drafters at 1956 Proceedings of the Institute, American Law have argued that the aided-in-accomplishing clause “does not properly apply intentional physical tort cases that lack elements of reliance or Casenote, deceit.” Costos v. Coconut Island Corp.: Creating a Vicari ous Liability Catchall under the Aided-by-Agency-Relation Theory, 1099, 73 U. Colo. L. (2002); Rev. accord Mahar v. StoneWood Transp., ¶ 21, (“section 2003 ME 219(2)(d) 823 A.2d 540 ... limited in application its to cases within the apparent authority of the employee, or when the employee’s conduct involves misrepresentation deceit”). An example of reasoning such can be found in Costos v. (1st Coconut Island Corp., 1998), 137 F.3d 49-50 Cir. where the court held that a hotel vicariously liable for the rape of a hotel guest by the hotel manager because the manager had been entrusted keys, room knew in located, what room the victim was and had access to the hotel at night, and therefore was “aided in accomplishing the tort” the agency relationship. 9 Even EUerth, Faragher before the Court’s decisions in this Court in Allen Supreme Dep’t Employment Training, & (1992), 159 Vt. reached similar concerning conclusion for sexual harassment employer’s potential id. (relying See 618 A.2d at on Title
workplace. VII cases and suggest knowledge sexual harassment could supervisor’s in some employee employer). circumstances be imputed debate, rejects here majority this doctrinal Weighing of the second clause for a narrow construction arguments *27 impose in that would reading favor of a broader can show agency “plaintiff a the liability on law enforcement whenever in an accomplishing officer was aided on-duty an law enforcement that the plaintiff by a sexual on the involving intentional tort assault the with the law enforcement relationship of employment existence ¶ consistent, Ante, majority the reading at 48. Such a is agency.” Faragher, employers purportedly the with Ellerth and where argues, “power” that enabled special created the conditions “access” ¶¶ Ante, 29, 30. in at to sexual misconduct. employees engage their ¶ majority’s analysis I that the and conclu- respect, 68. With submit noted, First, high flawed! the court never fundamentally sion are as to influ- Faragher any for its and Ellerth have intended decisions or the agency principles ence on the of common-law development §219(2)(d) outside context of Title VII. specific the application Second, 219(2)(d), the intentions with whether respect drafters’ narrow, largely point or are the when it comes expansive beside deciding agency vicariously whether to hold a law enforcement liable — by officers. perpetrated for a sexual assault one its That issue — nature, turns on considera- noted considerations of broad policy the barely acknowledges insufficiently tions that ana- majority lyzes.
¶ issue, The pertinent according 69. most to the to the “policy” majority, “extraordinary power is the that a law enforcement officer ¶ Ante, “unique has over citizen.” at Others mentioned are the police position access” that a officer’s affords for the commission of assaults, in the “era of particularly community polic- sexual current ¶¶ ante, 37, 38; at ing,” “vulnerability]” safety of the victim whose ante, 36; is protect, the officer at charged assumption liability on the recurrence of “imposing may prevent [the] creating vigilance tortious conduct for in a by by incentive those ante, 39; it”; to prevent finally the idea that “the costs position police community misconduct should be borne because community from the derives substantial benefits lawful exercise Id. police power.”
¶ 70. None of asserted considerations scru- policy these withstands While it is to learn that we live in a new tiny. certainly enlightening (like reforms, community many concept “era of so-called policing” context, much “community policing,” very viewed historical looks like “on the beat” that for policeman many the old-fashioned existed years), majority explain forms “community policing” fails how holding basis policy Department vicariously for Sheriffs liable for by Deputy majority the sexual assault committed Forrest. justification Deputy being notes that Forrest’s for ostensible function, store have been related to his and that the assault police may therefore have his and aided been facilitated his with the But this “power” relationship victim. does answer the question why it is fair to hold a agency law enforcement liable for an outrageous power. officer’s abuse When there has been no that the showing police department itself was negligent hiring, officer, why its it training, supervising fair or reasonable to public burden the for a sexual assault perpetrated by a rogue employee solely personal gratification? own twisted certainly 71. It is that police occupy true officers position trust and authority by virtue of their employment, authority and that this relies, informed decision on which the majority principally Mary *28 (Cal. 1991). City M. Angeles, v. Los 814 P.2d 1349 What the of — — majority however, does not if explain, is how at all this distin- guishes from police many employees, officers other public both private, who occupy parallel positions of An authority. employee’s or opportunity “access” commit an may intentional tort be facili- aby tated “trust” in relationship many different (e.g., contexts postal employee service UPS by deliverer admitted to a home virtue by of the engendered position, trust the tow-truck operator called help unsuspecting motorist stranded on the highway, the psychiatrist entrusted a office), with child in the of or her privacy his — range and the of employees vested with some form “power” in — many extraordinary power cases by over others virtue their employment is Apart labeling considerable. from police officer’s authority as “unique,” majority to explain fails what qualitatively a distinguishes law enforcement power officer’s over a “vulnerable” detainee from a correctional officer’s over a power prisoner, a teacher’s student, a power over psychiatric a power mentally nurse’s over ill patient, a residential power counselor’s over the teen-age residents of a home, or a group probation power probationer, officer’s over a to name only analogous relationships. few Indeed, 72. building M., holding Mary some courts have
advocated for the extension vicarious professions to other precisely See, based on such unexamined e.g., considerations. Har- rington Educ., v. Louisiana Bd. Elementary Secondary State & 714 (La. 845, 851-52 community college Ct. App.) (rape by So. of student 2d “authority given imputed instructor be to state based on (La. 1998). instructor]”), denied, cert. 728 So. 2d to [the however, courts, the facile for rejected argument Other have In v. Elmview simply employee’sauthority. on the Niece liability based (Wash. 1997), Home, the court example, 929 P.2d Group for an em facility a residential liable vicariously declined to hold to shift the ployee’s rape policy reason[s] of a resident absent “sound intentional from one innocent by employee’s wrong loss created justices Even party significantly, to another.” more several Supreme Mary wrongly California Court have concluded M. County Farmers Group decided and should be overruled. See Ins. (Cal. 1995) (Baxter, J., Clara, P.2d concurring) Santa M.”); express “disagreement Mary id. (writing separately (characteriz J., Lucas, C.J., joined (George, concurring) at 460-61 overruled”); ing “an that should see also Mary M. as aberration (Cal. 358, 367 Mayo Hosp., Lisa Henry M. v. Newhall Mem’l 907 P.2d 1995) J., Lucas, C.J., joined (calling for (George, concurring) Mary overruled). concurring unwillingness M. to be While court’s Mary professions, justices extend the M. rule to other these have any distinction candidly acknowledged the absence principled by police between the exercised officers and that scope authority teachers, have the end to other such called for professions rules, “special only to purportedly applicable on-duty police officers.” Ins., Lucas, C.J., 906 P.2d J. & (George, concurring) Farmers (“Police employed officers should be the same governed standard determining whether the misconduct of other falls within employees occupy of trust employment. position Police officers society, true of authority public employees, our but the same is other teachers.”). such as majority also of vicarious suggests imposition by police intentional serves the
liability for sexual misconduct officers *29 public good by providing training an “incentive” for better in the supervision. injury-prevention might rationale context work harassment, I fail to sexual but understand how better workplace solely deter an assault committed out training will intentional sexual Indeed, majority single not cite a personal motivations. does authority suggesting Depart- or what the Sheriffs example empirical Note, differently future See might prevent Mary ment do assaults. City Liable Angeles: M. Los Should a Be Held Under City Respondeat a Police 28 U.S.F. L. Superior Rape Officer?, for (1994) 419, that employers’ practical Rev. 450-53 (noting ability prevent assaults of nature “slight”). sexual is Nor does majority greater even mention the likelihood that vicarious liability may negative public consequences, inducing these circumstances have — departments to curtail the kinds of as beneficial activities such — that “community policing” place officers isolated situations with or public, encouraging members of the them to take defensive meas- ures such two-person police costly however to the patrols, public. (sexual See Mary id. at 451 as that in “realistically assaults such M. cannot be prevented causing negative consequences without law for enforcement”).
¶ 74. Equally misguided majority’s is the reliance the notion that liability vicarious serves the interest of spreading police “costs of among misconduct” those who benefit “from the lawful exercise of Ante, police at power.” 39. Risk spreading assumes that the em- ployer reasonably can anticipate loss and the cost of pass injuries to the beneficiaries of the enterprise higher form or rates prices. Calabresi, See G. Thoughts Some on Risk Distribution and Torts, Law 70 Yale L.J. agencies 543-44 Public such as police districts, departments however, or school cannot raise their prices, and, short of increasing already overwhelming tax property burdens, only option Note, their to cut funding be elsewhere. See supra, 28 L. (“Imposition U.S.F. Rev. at 456 of vicarious liability could have the of taking effect away funding pay judgments that would services.”); otherwise pay police be allocated to for see also TBH v. 149, 154, (if Meyer, (1998) 168 Vt. insurer re- were quired to misconduct, cover costs of insured’s sexual causing other policy costs, bear expense passed holders to along average “[t]he person... (citation at cringe very suggestion”) omitted). would
¶ 75. It
been
has also
suggested
liability necessary
is
in these kinds of situations to ensure the compensation of tort victims.
M.,
Mary
513 fixing liability”). arguments moral and economic While theoretical both issue, the in case could made on both of the record this is be sides actual evidence to inform the Court’s decision. any devoid of ¶ foregoing, majority implies 76. in addition the the that Finally, to the in these circumstances support imposition for vicarious States, Elk v. 1102, cases such as Red United in 62 F.3d may be found (8th 1995), by on-duty a sexual an Cir. which held that assault fall the may sufficiently officer “foreseeable” to within police the may employer. and therefore be attributable to a police sexually it is that officer proposition foreseeable the the merely power assault an innocent victim because officer has soundly rejected other opportunity by to do so has been courts. States, 737, (8th United See, 1983); Bates v. e.g., 701 F.2d 741-42 Cir. Cornish, (N.D. 1153, 1977); Gambling 426 F. 1154-55 Ill. Supp. Columbia, (D.C. Bates v. 1984); Boykin v. Dist. of Doria, (Ill. 1986). Ct. As Justice App. George 502 N.E.2d 457-58 Farmers, thing entity in “it is one to that a aptly say public observed police authority by, must that some officers will abuse their for expect effectuating excessive arrest or detention example, using force quite public entity expect another to conclude that a must P.2d at rape they some officers women have detained.” 906 will J., (George, concurring).10
¶ “unique” to exercised purporting rely power While officers, on-duty police majority opinion explain why this fails provides a reasoned basis for from the usual rules of departing respondeat superior agencies, law enforcement and more disturb- ingly any distinguish “power” to set forth basis to officer’s police fails employees analogous positions authority from that of other over — It populations. vulnerable is no excuse assert Court does —here that the decision intended to be and not ‘Venture “narrow” case,” ante, necessary at when the beyond what is to decide great. of doctrinal inexactitude are so potential costs States, (8th 1995), In Red Elk v. United Cir. the thirteen old F.3d 1102, 1104 year victim a tribal The court officer and officer’s cruiser. picked up raped described “five more incidents of intercourse” with the victim in which “in some appeals instances the victim submitted” until she later an end the relation voluntarily “put Id. at 1104. To describe girl sexual assaults of a ship.” multiple thirteen-year-old grown suggest as a that she submitted” discredits man “relationship” ‘Voluntarily overall opinion’s analysis. 78. Even the relatively employment- “narrow” context of law
enforcement agencies majority provides no clear to limit the basis imposition of liability. The majority rejects notion of imposing liability” “strict on the Department for the criminal acts of its ante, employees, see yet no provides reasoned basis to distin- guish case any from other involving police misconduct. The police officer’s “access” the victim in this case was no different from any store, other patron convenience *31 idea that a cruiser police the, parked “deter” store, ante, front would others from entering ¶ 52, Furthermore, is pure speculation. nothing in the suggests record the assault was particularly facilitated Deputy Forrest’s “authority” officer; as a law enforcement any other assailant with a handgun the physical power could have committed the same Thus, offense. while the majority purports reject the notion that simply owning badge, gun, and uniform enough are to create liability vicarious holding suggests its exactly the reverse.
¶ Recently, Parrott, Smith v. 64, 7, 175 2003VT Vt. A.2d this Court was presented with a similar opportunity to broadly expand potential liability tort of a profession, in that case physicians and other health professionals, care by departing from the traditional causation standard and adopting the so-called “loss of chance” doctrine. While acknowledging that the doctrine had received substantial support among legal commentators and had been accepted in a of jurisdictions, number we nevertheless cautioned that its adoption here raised “fundamental questions about its potential impact cost, on not only the but the very practice of Vermont; medicine in — — about its effect on ... other professions and the principles if any might which justify its application to medicine but not other fields.” Id. ¶at 13. Confronted uncertainties, with these we concluded that the “ decision ‘involvessignificant and far-reaching policy concerns’ more properly left to the Legislature, held, where hearings may be data collected, and competing interests heard before a wise decision is reached.” Id. at 14 (quoting Crosby States, v. United 48 F. Supp. 2d (D. 1999)). 931 Alaska I submit prudence dictates a similarly here, cautious approach where the issues are even more complex, the ramifications for the public welfare and safety greater, even and the Court’s obvious lack of information for policy formulation that much more significant. Niece, See 929 P.2d at 430-31 (declining impose on group home for employee’s rape of resident because “complexquestions of public policy” as to how the cost of such liability would be borne and how it would affect residential care Legislature”). part “dictates that we defer to the The better wisdom Legislature, uniquely equipped here is to defer to the which is “fact-finding problem-solving process” necessary engage question police an informed and balanced decision of whether vicariously be held liable for intentional sexual department Colchester, Hillerby v. Town assault committed an officer. 167 Vt. 270, 276, would, therefore, I affirm the of the trial court in favor of summary judgment defendants. am Amestoy joins 80.1 authorized to state that Chief Justice
dissent.