Lead Opinion
¶ 1. This case requires the Court to determine whether a sheriff can be held liable as the employer of a deputy who perpetrates intentional criminal misconduct while on duty. Plaintiff-victim was
¶ 2. On December 21, 1997, plaintiff, then twenty years old, was working alone as a cashier at a convenience store in East Dorset, Vermont. Forrest, who was on duty and wearing his department-issued uniform, badge, gun, and handcuffs, entered the convenience store between 8:00 p.m. and 9:00 p.m. This was Forrest’s third visit to the store since 6:30 p.m. that evening. Although this particular stop was not prompted by a specific request, Forrest routinely checked the store during his East Dorset patrol as part of his “community policing function,” pursuant to a contract between the Bennington County Sheriff’s Department and the Town of East Dorset. As such, he had become familiar with several of the store’s employees and developed something of a personal relationship with plaintiff. During some of these routine checks, Forrest jokingly threatened to handcuff or ticket plaintiff. He also bragged about his exploits as a police officer and that he was trained to “shoot to kill.” In the weeks preceding December 21, his routine checks at the store increased in frequency and duration, as he apparently became more personally interested in plaintiff.
¶ 3. When Forrest entered the store, plaintiff was on the telephone with her mother while attending to customers at the check-out counter. After those customers left the store, he took the telephone from plaintiff and jokingly told her mother, who was also an employee of the store, to stop harassing plaintiff. Forrest then hung up the telephone and began asking plaintiff questions that were sexual in nature. He turned the store’s thermostat to ninety degrees and informed her that he had done so. As she was readjusting the thermostat, he took hold of her hair, which was in a ponytail, and used it to move her head in various directions. He told her that he liked women who wore their hair in a ponytail so that he could control them. He then put his arm around plaintiff, who said nothing, but moved away from him and returned to the check-out counter.
¶ 5. As a result of the incident, Forrest resigned from the Sheriffs Department. Following an investigation by the Vermont State Police, he was charged with, and voluntarily pled nolo contendere to, a criminal charge of lewd and lascivious behavior for exposing and “causing his penis to contact the mouth of [plaintiff] in violation of 13 V.S.A. § 2601.” He also pled nolo contendere to a charge of neglect of duty for engaging in “open and gross lewd and lascivious conduct with [plaintiff] while assigned to patrol duty in violation of 13 V.S.A. § 3006.” He was sentenced to three-to-five-years’ imprisonment, all suspended, and was placed on probation and ordered to have no contact with plaintiff or her family.
¶ 6. Plaintiff filed suit against defendants, alleging various state and federal claims and seeking monetary damages for injuries she suffered as a result of Forrest’s conduct. After plaintiff voluntarily dismissed all federal claims, defendants moved to dismiss her state law claims, arguing that an employee’s intentional sexual misconduct could not be imputed to an employer because such conduct is beyond the scope of employment. Finding further discovery warranted, the trial court denied defendants’ motion to dismiss.
¶ 7. After approximately two years of discovery, defendants moved for summary judgment, reasserting their argument that Forrest’s misconduct was not within the scope of his employment; that no theory of vicarious liability recognized in Vermont would impute Forrest’s conduct to defendants; and that there was no evidence to indicate that Sheriff Forrest had negligently trained Deputy Forrest, or that Sheriff Forrest knew or should have known that Deputy Forrest had a propensity to assault women.
¶ 8. Following a hearing, the court granted defendants’ motion. The court found that 24 V.S.A. § 309, which plaintiff asserted was a basis for liability, was not applicable; that based on the undisputed material facts defendants were not vicariously liable under the doctrine of respondeat superior or alternative theories of liability under the Restatement (Second) of Agency § 219(2)(d); and that there was no evidence indicating defendants had negligently supervised Forrest. The court then entered judgment in favor of defendants. This appeal followed.
¶ 9. Our review of summary judgment is de novo, and in proceeding with that review, this Court applies the same standard as the trial court. Springfield Terminal Ry. v. Agency of Transp.,
I. Direct Liability Under 24 V.S.A § 309
¶ 10. Plaintiff alleges that Sheriff Forrest is directly liable for Deputy Forrest’s misconduct under 24 V.S.A. § 309, and that the trial court failed to accord proper weight to Forrest’s neglect-of-duty conviction when assessing defendants’ liability under § 309. Section 309 provides that:
A sheriff shall be liable for the official acts and neglects of his deputies, and may take bonds of indemnity from them. Such deputies may, and when required, shall perform any official duty which may be required of the sheriff. Returns of their acts and doings shall be signed by them as deputy sheriffs, and their official acts shall be deemed to be the acts of the sheriff.
(emphasis added). Traditionally, § 309 and the statutes upon which the current version is based have been applied to hold sheriffs liable for their deputies’ negligent or malfeasant execution of writs. See Lyman v. Holmes,
¶ 11. Apparently, plaintiff concedes that Forrest’s actions cannot be considered “official acts” as those words are used in the statute. Instead, plaintiff argues that" Forrest’s actions represent a neglect of duty because he failed to intervene to prevent his own crime. In support of this argument, plaintiff points particularly to the fact that Forrest was convicted of neglect of duty in violation of 13 V.S.A § 3006.
¶ 12. Because Forrest’s duties cannot be construed to include committing a sexual assault, we cannot conclude that the misconduct involved in this litigation supports plaintiffs novel theory. • If, for example, the damages sought resulted from the robbing of another store while Forrest was engaged in sexual misconduct and not performing
¶ 13. While Forrest’s failure to prevent his own criminal acts may in some sense constitute “neglect” because a sheriff has the statutory duty to “suppress ... unlawful disorder,” 24 V.S.A. § 299, we do not believe that, reasonably construed, § 309 applies in these circumstances. See Springfield Terminal Ry.,
¶ 14. Given our construction of § 309, we reject plaintiffs assertion that the trial court did not accord proper weight to Forrest’s conviction for neglect of duty under 13 V.S.A. §3006. The charge was that Forrest neglected his duty by engaging in “lewd and lascivious conduct with [plaintiff] while assigned to patrol duty.” Thus, his neglect of duty was his failure to perform his assigned patrol. Forrest’s failure to perform his assigned patrol is not the cause of plaintiffs damages. The conviction adds nothing to plaintiffs case.
II. Vicarious Liability for Conduct Within the Scope of Employment
¶ 15. Plaintiff next contends the trial court erred in rejecting her claim that defendants are vicariously liable for Forrest’s misconduct because that conduct fell within the scope of his employment. “Under the settled doctrine of respondeat superior, an employer or master is held vicariously liable for the tortious acts of an employee or servant committed during, or incidental to, the scope of employment.” Brueckner v. Norwich Univ.,
(a)... is of the kind the servant is employed to perform; (b) ... occurs substantially within the authorized time and space limits; (c) ... is actuated, at least in part, by a purpose to serve the master; and (d) in a ease in which force is intentionally used by the servant against another ... is not unexpectable by the master.
Id.; Sweet v. Roy,
¶ 16. Plaintiff asserts that Forrest’s sexual misconduct satisfies all four prongs of the scope-of-employment test adopted by this Court. We need look no further than the third prong to disagree. See Sweet,
¶ 17. For purposes of our analysis, we assume, as plaintiff argues, that Forrest entered the convenience store to carry out a community policing function. The event, however, forming the basis of this suit was undeniably detached from and unrelated to that role. While Forrest may have initially gone to the store to serve the purpose of his employer, his ensuing sexual misconduct cannot be found to further the goals of law enforcement. Indeed, Forrest victimized a person he was there to protect, exactly contrary to the interests of his employer.
¶ 18. This case is unlike those where a law enforcement official is overly aggressive in attempting to obtain information from a suspect or in performing the arrest of a suspect. In such a situation, the tortious conduct partially implements law enforcement goals, however inappropriately. See Brueckner,
¶ 19. Because we decide that plaintiff does not meet the third prong of the scope of employment test, we need not consider plaintiff’s argument that the sexual misconduct was not unexpectable, but instead was foreseeable.
III. Vicarious Liability Under the Restatement (Second) of Agency § 219(2) (d)
¶ 20. Finally, plaintiff claims that, although Forrest’s sexual misconduct was outside the scope of his employment, defendants are vicariously liable for that tortious conduct, relying on the principles set forth in the Restatement (Second) of Agency §219(2)(d). In its entirety, § 219 reads:
When Master is Liable for Torts of His Servants
(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their 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.
(emphasis added). Plaintiff actually asserts two different theories of liability relying upon the disjunctive language in § 219(2)(d). The first clause establishes an employer’s vicarious liability for the torts of employees based on the doctrine of “apparent authority,” while the second creates liability for an employer whose agent “was aided in accomplishing the tort by the existence of the agency relation.” Id. Plaintiff argues that defendants are vicariously liable under both theories.
¶ 21. This Court has not explicitly adopted § 219(2)(d) as an exception to our seope-of-employment rule, although we have recognized the provision as relevant in the context of workplace sexual harassment. See Allen v. Dep’t of Employment & Training,
¶22. Thus, consistent with our previous references to § 219(2)(d), we expressly adopt this provision of the Restatement as applicable in assessing whether an employer has vicarious liability for the tortious conduct of an employee when that conduct falls outside the scope of his or her employment. As a result, we analyze both of plaintiff’s arguments under this section.
A. Apparent Authority
¶ 23. Plaintiff argues that, pursuant to the first clause of §219(2)(d), defendants are vicariously liable for Forrest’s sexual misconduct under the doctrine of “apparent authority” because the instruments of police power provided to Forrest, such as a gun, badge, and uniform, can “reasonably create an impression that the employer authorized the deputy to coerce sex.” “As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from where the agent threatens to misuse actual power.” Burlington Indus.,
¶ 24. Based on the summary judgment record, there is no evidence of conduct by Sheriff Forrest or the Bennington County Sheriff’s Department communicating or manifesting Forrest’s authority to engage in sexual misconduct while on duty. See Lakeside Equip. Corp.,
B. Aided in Accomplishing the Tort
¶ 25. Finally, plaintiff argues that summary judgment was inappropriate because a question of material fact remains as to whether defendants should be held vicariously liable under the last clause of § 219(2)(d), which authorizes liability for
¶ 26. At the outset, we must acknowledge that plaintiffs theories, assuming the facts support them, appear to fit squarely within the plain language of the last clause of § 219(2)(d). Plaintiff alleges that Forrest could not have committed the sexual assault oh plaintiff except by virtue of the deputy sheriff position conferred on him by defendants. In the wording of the section, plaintiffs theory is that Forrest’s appointment and his official powers and responsibilities “aided in accomplishing the tort” on plaintiff.
¶ 27. As is more fully developed below, however, we are convinced that we must look further than the plain language of the clause. Indeed, as is apparent from a reading of this decision, the trial court opinion and the dissent, we must first choose among conflicting interpretations of the Restatement language before we can apply § 219(2)(d) to the facts of this case. In making this choice, we are guided by three important points.
¶ 28. First, although only a limited number of decisions from other courts have relied upon the last clause of §219(2)(d) in reaching a comparable decision, the language has been comprehensively and persuasively construed in recent decisions of the United States Supreme Court, Burlington Indus., Inc. v. Ellerth,
¶ 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 to employment discrimination.” Faragher,
The City, however, contends that § 219(2)(d) has no application here. It argues that the second qualification of the subsection, referring to a servant “aided in accomplishing the tort by the existence of the agency relation,” merely “refines” the one preceding it, which holds the employer vicariously liable forits servant’s abuse of apparent authority____But this narrow reading is untenable; it would render the second qualification of § 219(2)(d) almost entirely superfluous (and would seem to ask us to shut our eyes to the potential effects of supervisory authority, even when not explicitly invoked). 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____
We therefore agree with [plaintiff] that in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority, and that the aided-by-agency-relation principle embodied in § 219(2)(d) of the Restatement provides an appropriate starting point for determining liability for the kind of harassment presented here.
Id. at 801-02. In describing further the application of § 219(2)(d), the Court noted that the supervisor-employee relationship provides access, and the power of the supervisor is such that the employee who is faced with harassment by the supervisor is not in a position to defend, as is normally true with a coworker. Id. at 803. Finally, the Court stated that recognition of liability for a supervisor’s actions places the burden on the party that can guard against misconduct through screening, training and monitoring. Id.
¶30. Ellerth is a companion case, decided on the same day as Faragher, and addressing whether an employer has vicarious liability under Title VII when a supervisor creates a hostile work environment by threats to a subordinate of adverse employment actions, based on sex, but does not fulfill the threat.
¶ 31. We are, of course, not strictly bound by an interpretation of the Restatement of Agency by the United States Supreme Court, where we are not applying Title VII of the Civil Rights Act. We find, however, that Faragher and Ellerth are strong persuasive authority and are particularly helpful to our application of §219(2)(d). Thus, we follow these decisions.
¶ 32. Our second introductory point follows from the United States Supreme Court decisions. It is important not to adopt too narrow an interpretation of the last clause of § 219(2)(d), but it is equally important not to adopt too broad an interpretation. We are sensitive to the concern expressed by the trial court that plaintiffs arguments could lead to a rule that makes a principal liable for all intentional torts of an agent in all circumstances. Just as the Supreme Court decided that § 219(2)(d) could not be read to make employers liable for all acts of sexual harassment of supervisors against employees, we must similarly narrow any rule we decide upon.
¶ 33. Our third introductory point deals with the context of this case. The Court in Faragher was very careful to analyze the policy judgments behind § 219(2)(d) and apply it to implement those policies. We similarly examine some of those policy issues in the context of an intentional sexual tort of a law enforcement officer perpetrated on a community citizen the officer was charged to protect as part of his community policing function. The Faragher Court emphasized three main considerations in applying § 219(2)(d) in the supervisor-employee relationship: the opportunity for contact created by the relationship; the powerlessness of the employee to resist the supervisor and prevent the unwanted contact; and the opportunity to prevent and guard against the conduct.
¶
¶ 35. Mary M. is explicitly policy-based and contains this rationale as part of the holding:
At the outset, we observed that society has granted police officers extraordinary power and authority over its citizenry. An officer who detains an individual is acting as the official representative of the state, with all of its coercive power. As visible symbols of that power, an officer is given a distinctively marked car, a uniform, a badge, and a gun. As one court commented, “police officers [exercise] the most awesome and dangerous power that a democratic state possesses with respect to its residents — the power to use lawful force to arrest and detain them.” Policeman’s Benev. Ass’n of N.J. v. Washington Tp., [850 F.2d 133 , 141 (3d Cir. 1988).] Inherent in this formidable power is the potential for abuse. The cost resulting from misuse of that power should be borne by the community, because of the substantial benefits that the community derives from the lawful exercise of police power.
Mary M.,
We particularly note that Officer Crowe was on duty in uniform and armed, and was operating a police unit at the time of this incident. He was able to separate the plaintiff from her companions because of the force and authority of the position which he held. He took her into police custody and then committed the sexual abuse upon her in the vehicle provided for his use by his employer.
A police officer is a public servant given considerable public trust and authority. Our review of the jurisprudence indicates that, almost uniformly, where excesses are committed by such officers, their employers are held to be responsible for their actions even though those actions may be somewhat removed from their usual duties. This is unquestionably the case because of the position of such officers in our society.
Applewhite,
¶ 36. This power is especially pronounced when the tort is committed on a citizen the law enforcement officer is charged with protecting. The Faragher Court noted the particular power of an employment supervisor who could inflict adverse employment actions on a resistant employee. Not only is the supervisor placed in the position to sexually harass the employee, but the fear of retaliation prevents the employee from resisting or complaining. See
¶ 37. The Faragher Court also emphasized the unique access to commit the tort the employment relationship can provide. In a very similar way, a law enforcement officer has unique access to a citizen who is depending upon the law enforcement officer
¶ 38. Other courts have noted the effect of the unique access of a law enforcement officer on vicarious liability. For example, the Seventh Circuit Court of Appeals noted in a case where an officer sexually molested a thirteen-year-old girl he routinely drove home so she would not be out after curfew:
[W]hen the employee is a male police officer whose employer has invested him with intimidating authority to deal in private with troubled teenage girls, his taking advantage of the opportunity that authority and proximity and privacy give him to extract sexual favors from these girls 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.
West v. Waymire,
¶ 39. Finally, Faragher relied on the greater opportunity that employers had to “guard against misconduct by supervisors ...; employers have greater opportunity and incentive to screen them, train them, and monitor their performance.”
¶ 40. With these three points in mind, we turn to the alternative constructions of §219(2)(d). We start with the superior court’s construction under which it held that the last clause does not apply to the facts of this case. The superior court recognized that the language of the section appeared to fit, but concluded that a “plain reading” of the exception contained in the last clause would “eviscerate the general scope of employment rule” and looked for ways to narrow its application. It settled on the limitations adopted in Gary v. Long,
Liability is based upon the fact that the agent’s position facilitates the consumption of the [tort], in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.
Restatement (Second) of Agency § 261, cmt. a. The court added from a comment to § 166:
If a person has information which would lead a reasonable man to believe that the agent is violating the orders of the principal or that the principal would not wish the agent to act under the circumstances known to the agent, he cannot subject the principal to liability.
Id. § 166, cmt. a. The superior court applied this second limitation in part to find that the exception in the last clause of § 219(2)(d) did not apply.
¶ 41. We conclude that the holding in Gary did not survive the Supreme Court decisions in Faragher and Ellerth. We read Faragher as
rejecting the second limitation imposed by Gary, that the transaction seems “regular” to a third party and the agent appears to be acting within the authority given by the principal. This limitation is clearly a refinement of apparent authority analysis. See Faragher,
¶ 42. An alternative method of narrowing § 219(2)(d), such that plaintiff would not prevail, is presented by the recent decision of the Maine Supreme Judicial Court in Mahar v. StoneWood Transp.,
Clause (d) includes primarily situations in which the principal’s liability is based upon conduct which is within the apparent authority of a servant, as where one purports to speak for his employer in defaming another or interfering with another’s business. See §§ 247-249. Apparent authority may also be the basis of an action of deceit (§§ 257-264), and even physical harm. See §§ 265-267. In other situations, the servant may be able to cause harm because of his position as agent, as where a telegraph operator sends false messages purporting to come from third persons. See § 261. Again, the manager of a store operated by him for an undisclosed principal is enabled to cheat the customers because of his position. See § 222. The enumeration of such situations is not exhaustive, and is intended only to indicate the area within which a master may be subjected to liability for acts of his servants not in scope of employment.
Restatement (Second) of Agency § 219(2)(d), cmt. e (emphasis added). The court found in the comment a limit on the section’s applicability to “eases within the apparent authority of the employee, or when the employee’s conduct involves misrepresentation or deceit.” Mahar,
¶ 43. The facts of Mahar involved only a weak claim that § 219(2)(d) provided vicarious liability. The defendant'was a trucking company that employed a driver who assaulted plaintiff automobile driver in a road rage incident in which the truck driver thought that plaintiff was driving behind him with his high beams on. The court found that the truck driver engaged in no misrepresentation or deceit, and therefore § 219(2)(d) did not apply. Id. at ¶ 24.
¶ 44. Although we do not disagree with the holding of Mahar on the facts before the court, we are not persuaded by its rationale. The plain language of the section is directly against importing into it a requirement of misrepresentation or deceit. Although one of the hypothetical in the comment involves misrepresentation or deceit,
¶ 45. More important, we doubt that the Mahar decision would determine the result in this case. As our analysis of the policy considerations shows, this is a vastly different case from Mahar. The difference is shown by the Maine court’s analysis of Costos in which the Court of Appeals applied § 219(2)(d) as part of Maine law to hold that the owner of an inn was vicariously liable when the inn manager entered the room of plaintiff guest using a master key and raped her. The holding of the Costos court is contained in the following paragraph:
Even viewing this case through the narrower focus of the commentary on Restatement §219, which the Gary court found helpful, defendants are well within the scope of § 219(2)(d) liability. By virtue of his agency relationship with the defendants, as manager of the inn, [the manager] was entrusted with the keys to the rooms, including Costos’ room, at the Bernard House. Because he was the manager of the inn, [he] knew exactly where to find Costos. The jury could find that [the manager] had responsibilities to be at the inn or to have others there late at night. In short, because he was the defendants’ agent, [the manager] 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.
¶ 46. As our discussion suggests, we are more comfortable with the analysis in Costos than that in Mahar, and the Costos analysis is the only other construction of §219(2)(d) that we have not considered above. Costos is consistent with the view of a number of commentators that employers should be vicariously liable for torts committed by employees involving an abuse of job-created authority, particularly where the tort involves sexual abuse. See L. Jorgenson et al., Transference of Liability: Employer Liability for Sexual Misconduct by Therapists, 60 Brook. L. Rev. 1421, 1435-39 (1995); Note, A Matter of Trust: Imposing Employer Vicarious Liability for the Intentional Torts of Employees, 3 D.C. L. Rev. 167,183-85 (1995); Note, “Scope of Employment” Redefined: Holding Employers Vicariously Liable for Sexual Assaults Committed by Their Employees, 76 Minn. L. Rev. 1513,1527-30 (1992). Each of the articles analyzes cases where courts have found vicarious liability under traditional principles, but the analysis is debatable and better viewed explicitly as situations where the nature and powers of the job created by
¶ 47. Nevertheless, we do not adopt the full rationale of Costos in this decision. Our primary reason is our second introductory point above, that we find it best to adopt a rationale as narrow as possible under the circumstances. We are guided by the Supreme Court’s decision in Ellerth not to venture beyond what is necessary to decide the case. See
¶ 49. In reaching this decision, we reject the argument of the dissent that any policy that allows vicarious liability for intentional torts of law enforcement officers must be made by the Legislature. This is á case of first impression in which we are discharging our traditional role of defining the common law. Exactly because we seek to follow the common law as it has developed in the jurisdictions in this country, we have used the. Restatement of Agency to find the appropriate law. See American Law Institute, I Restatement of the Law of Contracts, introduction at viii (1932) (explaining that the purpose of a Restatement is “the preparation of an orderly restatement of the common law” to reduce uncertainty in the law). In saying this, we do not shirk from our duty “to adapt the common law to the changing needs and conditions of the people of this state.” Hay v. Med. Ctr. Hosp. of Vt.,
¶ 50. We turn now to the application of § 219(2)(d), as we have interpreted it, to the facts of this case. As we set out above, the superior court granted summary judgment to defendants because it found that plaintiff had not made a specific showing to bring herself within the language of the section; specifically, the court found: (1) even if Forrest was able to gain information about plaintiff while on duty, it was not “pursuant to an official investigation”; (2) his position did not aid him in gaining information about plaintiff because anyone was free to enter the store and ask questions; (3) Forrest never used his gun, handcuffs or other instrumentalities in accomplishing the crime; (4) even if Forrest had used the instrumentalities in committing the crime, a reasonable person would know that such use is not authorized; and (5) there is no evidence that the presence of his police car in front of the car warded, off other patrons. As is apparent from our rejection of the limiting construction of § 219(2)(d) adopted by the superior court, we do not find the fourth reason relevant. We disagree that we can rely on the other reasons to deny summary judgment, generally because they are based on inferences that have not been viewed most favorably to the plaintiff as required by
¶ 51. The issue of how Forrest gained access to plaintiff all alone in the store is disputed. One witness described that Forrest had been asking questions about plaintiff’s work schedule. He entered the store when another employee was also working and bought food and left. He reentered about fifteen to thirty minutes after the second employee went off duty and loitered until all customers left. He parked his cruiser in front of the store with the parking lights on. When plaintiffs mother called plaintiff, Forrest took the telephone, terminated the conversation and hung it up.
¶ 52. The evidence went to Forrest’s special access to plaintiff created by his job and enabling him to commit the tort. The trial court concluded that the information about plaintiffs schedule was not gathered in an investigation and could have been obtained by anyone on inquiry, and that there was no evidence that Forrest deterred anyone from entering the store. We believe that a jury could conclude that others could not ask the kind of questions and gain the kind of access Forrest did without his special status as a law enforcement officer. Moreover, the jurors could conclude based on their own experience that the presence of the cruiser with its parking lights on would deter persons from entering the store. We do not believe that the court could find as a matter of law that Forrest did not have special access to plaintiff: access created by the existence of the agency relationship that aided the commission of the tort.
¶ 53. With respect to Forrest’s weapons, other instruments, and ability to inflict injury, the superior court relied upon the fact that Forrest never used his gun or other instruments on plaintiff. We do not believe the absence of evidence of actual use was determinative.
¶ 54. The evidence bearing on the issue came, almost entirely, from plaintiff’s deposition; her testimony has aspects that support both her case and that of defendant. She testified that Forrest told her on the day of the sexual assault that if he ever used his gun he would shoot to kill. When asked whether she complained when Forrest grabbed her ponytail and used it to pull her head from side to side, she answered:
A. I kind of just went along with it hoping that he woüld just leave and go back to work. And I was hoping somebody would come in the store. I really — um, he was — had a controlling power over me. I mean he had a gun. He had handcuffs. I didn’t — I didn’t — I don’t —
She went on to acknowledge that Forrest never threatened to use his gun or handcuffs. When asked why she didn’t use the telephone to call for help, she answered first that she “kept thinking about her cousin,” who was killed in a domestic violence incident and then that she was “too scared” and “who knows what would have happened. Once again, this man had a gun.” When asked what made her fear that Forrest would use the gun, she answered that it was the comment that if he ever used the gun, it would be to shoot to kill. After plaintiff described the sexual assault, she answered questions about her thoughts and motives as follows:
Q. Is there any other reason why you were intimidated by Richard Forrest?
A. Just his, his power. I mean he was a police officer.
Q. Well, you didn’t have any problem calling the police about a police officer who allegedly raped you, right?
A. Right.
Q. I mean was there some reason why you felt that you couldn’t do something to help yourself because he was a police officer?
A. I don’t know.
Q. Did it even enter into your mind?
A. I guess not.
Q. Right. He was just a big guy who was physically forcing you to do something you didn’t want, right?
ATTORNEY MYERSON: Objection.
ATTORNEY LYNN: Q. Right?
A. I, I don’t know.
Q. Well, you just don’t remember?
A. I do remember. I just — I don’t know if it was because of his uniform or I — I don’t know.
Q. It may have been; it may not have been?
A. Yes.
Q. At this point, you just don’t remember?
A. I — I do remember. I just — I don’t — I don’t know.
¶ 55. Defendants rely primarily on the last statements above as showing that the fact that Forrest was a police officer had nothing to do with plaintiffs submission to the sexual assault. Plaintiff relies upon her earlier statements that she went along because Forrest had controlling power over her because of the handcuffs and the gun.
¶ 56. We have cautioned about granting summary judgment “in any cases in which the resolution of the dispositive issue requires determination of state of mind, as the fact finder normally should be given the opportunity to make a determination of the credibility of witnesses, and the demeanor of the witness whose state of mind is at issue.” Barbagallo v. Gregory,
¶ 57. In summary, we find that none of the reasons advanced by the trial court warrant summary judgment for defendants on the § 219(2)(d) claim.
IV. Conclusion
¶ 58. Although we conclude that the superior court correctly held that defendants were entitled to 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 defendants vicariously liable under §219(2)(d) of the Restatement (Second) of Agency, a theory of liability we expressly adopt. Specifically, the fact-finder can find that Forrest was “aided in accomplishing the tort by the existence of the agency relation,” as we have defined that language in this decision.
Reversed and remanded.
Notes
Plaintiff also sued Bennington County and the State of Vermont, but the ease against these defendants was dismissed, and plaintiff has not appealed this dismissal.
Forrest’s sexual misconduct also directly violated explicit Bennington County Sheriffs Department policy prohibiting sexual activities while on duty. This fact, while relevant, is not determinative in our scope of employment inquiry because “there is no requirement that the master specifically authorize the precise action the servant took.” Sweet v. Roy,
In following the United States Supreme Court decisions, we reject the dissent’s claim that the Supreme Court “never intended for its decisions ... to have any influence on the development of common-law agency principles or the application of § 219(2)(d) outside the specific context of Title VII.” Post, at ¶ 68. The Supreme Court applied the Restatement of Agency because it found that “Congress wanted courts to look to agency principles for guidance” in deciding hostile environment sex discrimination cases under Title VII. Meritor Sav. Bank, FSB v. Vinson,
It is, of course, the nature of the common law that every appellate decision represents the development of the common law, and nothing in the Supreme Court decisions suggests they are not an integral part of that process. Indeed, the resolution of the dispute over the meaning of § 219(2)(d) in Faragher is exactly the kind of decision that best defines and develops the common law. No common-law court engaged in this process, and certainly not the highest court of this country, would expect that a common-law decision on one set of facts would have no influence on future decisions applying the same legal principle to a different factual scenario.
The California Supreme Court also concluded “[t]here is little or no risk that preventive measures would significantly interfere with the ability of police departments to enforce the law and to protect society from criminal acts.” Mary M. v. City of Los Angeles,
We do not war with the first limitation of Gary v. Long,
The dissent creates a cross-fire of criticism, arguing first that the decision is so broad as to create “a threat of vicarious liability that knows no borders,” post, at ¶ 59, and then that it is too narrow because it “fails to set forth any basis to distinguish a police officer’s ‘poweri from that of other employees in analogous positions of authority over vulnerable populations” and represents “it is because we say so” jurisprudence. Post, at ¶ 77. The criticism does not prompt us to decide cases not before us. We do cite the California cases to point out that principled distinctions can be drawn between law enforcement officers and others in positions of authority. Whether we should adopt those distinctions should be left to future decisions.
On this point, the dissent places significance on the fact that “several justices of the California Supreme Court have concluded that Mary M. was wrongly decided and should be overruled.” Post, at Í 72. This criticism is misleading to the extent that it implies that the justices who authored Mary M. have changed their position or that Mary M. has been overruled. On the vicarious liability holding, Mary M. was a 5-to-2 decision, with Justices Baxter and Lucas writing a long and detailed concurrence where they dissented on this point. See
Justices Baxter and Lucas reiterated then’ disagreement with Mary M., arguing that it should be overruled for the reasons they stated previously. They were joined by one new justice, Justice George, who replaced one of the Mary M. majority justices. Contrary to the dissent in this case, I draw no significance from the fact that those who disagreed with Mary M. continue to adhere to their position or that they are joined by an additional justice who did not sit on Mary M. I do find it significant, however, that Mary M. remains the law of California. Although the California Supreme Court has not revisited the decision since 1995, it is being applied, and distinguished where appropriate, in decisions of the California Court of Appeals. See, e.g., Maria D. v. Westec Residential Security, Inc.,
Dissenting Opinion
¶ 59. dissenting. I do not quarrel with the Court’s adoption of § 219(2)(d) of the Restatement (Second) of Agency as an exception to our scope-of-employment rule for purposes of determining vicarious liability. I submit, however, that in its broad application of the last clause of that section to the facts of this case, specifically a sexual assault
¶ 60. Like the finding of a duty of care in negligence law, the imposition of vicarious liability under agency principles flows not from the rote application of rules, but from a considered policy judgment that it is fair and reasonable to hold an employer liable for the harmful actions of its employee. As Justice Souter, writing for the United States Supreme Court in Faragher v. City of Boca Raton,
¶ 61. In its lengthy opinion, the majority here devotes considerable attention to the doctrinal debate over the meaning of an opaque phrase in a nonbinding provision of the restatement of the law of agency, yet barely addresses the broad policy ramifications of its decision holding a county sheriffs department vicariously liable for a sexual assault committed by a deputy sheriff acting entirely outside the normal scope of his employment duties. With respect, I submit that the majority’s analysis is inadequate to support so extraordinary a holding, and that such a significant expansion of public entity liability should be left to the branch best equipped to consider all of the underlying social and economic ramifications, the Legislature.
¶ 62. “Under the settled doctrine of respondeat superior, an employer or master is held vicariously liable for the tortious acts of an employee or servant committed during, or incidental to, the scope of employment.” Brueckner v. Norwich Univ.,
¶ 63. Indeed, consistent with Vermont precedent, the majority accurately characterizes Deputy Forrest’s crime as “rooted in prurient self-interest” — rather than as intended to advance the interests of his employer — and therefore outside the proper scope of his ■ employment. Ante, at ¶ 18. Nevertheless, relying on an ambiguous rule cited by the United States Supreme Court in two workplace discrimination decisions, Faragher,
¶ 64. The rule in question is set forth in § 219(2)(d) of the Restatement (Second) of Agency, which provides that a master is not subject to liability for the torts of a servant acting outside the scope of 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.” Restatement (Second) of Agency § 219(2)(d) (1958). While acknowledging — as indeed it must — that there was no evidence the Department had conferred upon Deputy Forrest the “apparent authority” to engage in sexual assault, the majority nevertheless concludes that there was sufficient disputed evidence that he was “aided in accomplishing the tort by the agency relation” to survive summary judgment. In support of this conclusion, the majority relies on Faragher and Ellerth, companion cases in which the United States Supreme Court addressed the circumstances in which an employer may held liable, under Title VII of the Civil Rights Act of 1964, for sexual harassment perpetrated by a supervisor against an employee. Observing that numerous lower court decisions had drawn upon a variety of agency law principles enumerated in the Restatement (Second) of Agency to reach conflicting holdings, Justice Souter, writing for the Court in Faragher, cautioned that “[t]he proper analysis ... calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement, see, e. g., §§ 219, 228, 229, but rather an inquiry into the reasons that would support a conclusion that harassing behavior ought to be held within the scope of a supervisor’s employment, and the reasons for the opposite view.”
¶ 65. The Court concluded that the Congressional policies underlying Title VII — to prevent harassment in the workplace
¶ 66. Since the Faragher and EUerth decisions, courts and commentators have disputed the proper scope of the “aided-in-aecomplishing” clause of § 219(2)(d) outside the Title VII context. Some have severely criticized the Court for distorting the principles of vicarious liability embodied in §219(2)(d), arguing that the Court fundamentally misinterpreted the second clause as completely independent of the first, and that properly understood it applies only where the agent “purported to act or speak on behalf of the principal and he was aided in accomplishing the tort by the existence of the agency relationship.” P. Dailey, All in a Day’s Work: Employers’ Vicarious Liability for Sexual Harassment, 104 W. Va. L. Rev. 517, 550 (2002). According to the critics, the result of that misunderstanding, if applied elsewhere, would be to “vastly expand vicarious tort liability, and would make the scope of employment requirement largely superfluous.” Id. Others, relying on the history of §219(2)(d) and the debates among the drafters at the 1956 Proceedings of the American Law Institute, have argued that the aided-in-accomplishing clause “does not properly apply in intentional physical tort cases that lack elements of reliance or deceit.” Casenote, Costos v. Coconut Island Corp.: Creating a Vicarious Liability Catchall under the Aided-by-Agency-Relation Theory, 73 U. Colo. L. Rev. 1099, 1130 (2002); accord Mahar v. StoneWood Transp.,
¶ 67. Weighing in on this doctrinal debate, the majority here rejects the arguments for a narrow construction of the second clause of § 219(2)(d) in favor of a broader reading that would impose vicarious liability on a law enforcement agency whenever the “plaintiff can show that an on-duty law enforcement officer was aided in accomplishing an intentional tort involving a sexual assault on the plaintiff by the existence of the employment relationship with the law enforcement agency.” Ante, at ¶ 48. Such a reading is consistent, the majority argues, with Ellerth and Faragher, where the employers purportedly created the special conditions of “access” and “power” that enabled their employees to engage in sexual misconduct. Ante, at ¶¶ 29, 30.
¶ 68. With respect, I submit that the majority’s analysis and conclusion are fundamentally flawed! First, as noted, the high court never intended for its decisions in Faragher and Ellerth to have any influence on the development of common-law agency principles or the application of §219(2)(d) outside the specific context of Title VII. Second, the drafters’ intentions with respect to § 219(2)(d), whether expansive or narrow, are largely beside the point when it comes to deciding whether to hold a law enforcement agency vicariously liable for a sexual assault perpetrated by one of its officers. That issue — as noted — turns on policy considerations of a broad nature, considerations that the majority barely acknowledges and insufficiently analyzes.
¶ 69. The “policy” most pertinent to the issue, according to the majority, is the “extraordinary power that a law enforcement officer has over a citizen.” Ante, at ¶ 34. Others mentioned are the “unique access” that a police officer’s position affords for the commission of sexual assaults, particularly in the current “era of community policing,” ante, at ¶¶ 37, 38; the “vulnerability]” of the victim whose safety the officer is charged to protect, ante, at ¶ 36; the assumption that “imposing liability on the employer may prevent [the] recurrence of tortious conduct by creating an incentive for vigilance by those in a position to prevent it”; ante, at ¶ 39; and finally the idea that “the costs of police misconduct should be borne by the community because the community derives substantial benefits from the lawful exercise of police power.” Id.
¶ 70. None of these asserted policy considerations withstands scrutiny. While it is certainly enlightening to learn that we live in a new “era of community policing” (like many so-called reforms, the concept of “community policing,” viewed in historical context, looks very much like the old-fashioned policeman “on the beat” that existed for many years), the majority fails to explain how “community policing” forms the policy basis for holding the Sheriffs Department vicariously liable for the sexual assault committed by Deputy Forrest. The majority notes that Deputy Forrest’s ostensible justification for being in the store may have been related to his police function, and that the assault may therefore have been facilitated by his employment
¶ 71. It is certainly true that police officers occupy a position of trust and authority by virtue of their employment, and that this authority informed the decision on which the majority principally relies, Mary M. v. City of Los Angeles,
¶ 72. Indeed, building on the holding in Mary M., some courts have advocated for the extension of vicarious liability to other professions based precisely on such unexamined considerations. See, e.g., Harrington v. Louisiana State Bd. of Elementary & Secondary Educ., 714 So. 2d 845, 851-52 (La. Ct. App.) (rape of student by community college instructor may be imputed to state employer based on “authority given to [the instructor]”), cert. denied,
¶ 73. The majority also suggests that the imposition of vicarious liability for intentional sexual misconduct by police officers serves the public good by providing an “incentive” for better training and supervision. The injury-prevention rationale might work in the context of workplace sexual harassment, but I fail to understand how better training will deter an intentional sexual assault committed solely out of personal motivations. Indeed, the majority does not cite a single example or empirical authority suggesting what the Sheriffs Department might do differently to prevent future assaults. See Note, Mary M. v. City of Los Angeles: Should a City Be Held Liable Under Respondeat Superior for a Rape by a Police Officer?, 28 U.S.F. L. Rev. 419, 450-53 (1994) (noting that employers’ practical ability to prevent sexual assaults of this nature is “slight”). Nor does the majority even mention the greater likelihood that vicarious liability in these circumstances may have negative public consequences, inducing departments to curtail the kinds of beneficial activities — such as “community policing” — that place officers in isolated situations with members of the public, or encouraging them to take defensive measures such as two-person police patrols, however costly to the public. See id. at 451 (sexual assaults such as that in Mary M. “realistically cannot be prevented without causing negative consequences for law enforcement”).
¶ 74. Equally misguided is the majority’s reliance on the notion that vicarious liability serves the interest of spreading the “costs of police misconduct” among those who benefit “from the lawful exercise of police power.” Ante, at ¶ 39. Risk spreading assumes that the employer can reasonably anticipate the loss and pass the cost of injuries to the beneficiaries of the enterprise in the form of higher rates or prices. See G. Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L. J. 499, 543-44 (1961). Public agencies such as police departments or school districts, however, cannot raise their prices, and, short of increasing already overwhelming property tax burdens, their only option may be to cut funding elsewhere. See Note, supra,
¶ 75. It has also been suggested that vicarious liability is necessary in these kinds of situations to ensure the compensation of tort victims. Mary M.,
¶ 76. Finally, in addition to the foregoing, the majority implies that support for the imposition of vicarious liability in these circumstances may be found in cases such as Red Elk v. United States,
¶ 77. While purporting to rely on the “unique” power exercised by on-duty police officers, the majority opinion fails to explain why this provides a reasoned basis for departing from the usual rules of respondeat superior for law enforcement agencies, and more disturbingly fails to set forth any basis to distinguish a police officer’s “power” from that of other employees in analogous positions of authority over vulnerable populations. It is no excuse to assert — as the Court does here — that the decision is intended to be “narrow” and not ‘Venture beyond what is necessary to decide the case,” ante, at ¶ 47, when the potential costs of doctrinal inexactitude are so great.
¶ 78. Even in the relatively “narrow” employment- context of law enforcement agencies the majority provides no clear basis to limit the imposition of vicarious liability. The majority rejects the notion of imposing “strict liability” on the Department for the criminal acts of its employees, see ante, at ¶ 13, yet provides no reasoned basis to distinguish this case from any other involving police misconduct. The police officer’s “access” to the victim in this case was no different from any other patron of the convenience store, and the idea that a police cruiser parked in front would “deter” others from entering the, store, ante, at ¶ 52, is pure speculation. Furthermore, nothing in the record suggests
¶ 79. Recently, in Smith v. Parrott,
¶ 80.1 am authorized to state that Chief Justice Amestoy joins this dissent.
Derivative or vicarious liability of an employer for the intentional misconduct of an employee is to be distinguished, of course, from an employer’s direct liability for the negligent hiring or supervision of an employee. Brueckner v. Norwich Univ.,
In distinguishing the two types of discrimination, the Court explained that where the supervisory misconduct results in a tangible employment action, such as firing, failing to promote, or reassignment, it “requires an official act of the enterprise, a company act,” and thus “becomes for Title VII purposes the act of the employer.” Burlington Indus., Inc. v. Ellerth,
Even before the Supreme Court’s decisions in Faragher and EUerth, this Court in Allen v. Dep’t of Employment & Training,
In Red Elk v. United States,