VT. HIGH COURT ADOPTS EMERGING RULE ON 'SCOPE OF EMPLOYMENT' FOR POLICE

June 7, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

When a uniformed, on-duty police officer engages in intentional misconduct, such as criminal sexual assault, that's far outside the scope of his duties -- but if the officer was aided in accomplishing the tort by his official status, should his employer be held vicariously liable for the wrongdoing?

Judge Richard A. Posner of the Seventh U.S. Circuit Court of Appeals recently noted that the emerging rule -- that " 'scope of employment' should be interpreted more broadly when the employee is a police officer" -- hasn't been considered by the Illinois Supreme Court. But the new rule "has a footing in other jurisdictions and may well be the wave of the future." Doe v. City of Chicago, 360 F.2d 667 (7th Cir.) Feb. 27). (See Chicago Daily Law Bulletin, Trial Notebook, "7th Circuit Takes a Peek at New Rule on City Liability for Police Misconduct" (April 5).]

Joining the jurisdictions that have adopted a new vicarious-liability rule for police misconduct cases, the Vermont Supreme Court opted for a version of section 219(2)(d) of the Restatement of Agency (Second). Doe v. Forrest, 2004 WL 993415 (May 7).

"Jane Doe" filed a complaint alleging she was working alone one night as the cashier in a convenience store when a deputy sheriff who was on duty coerced her into performing a sexual act. And the officer, Gary Forrest, entered a plea of "nolo contendere to charges of lewd and lascivious behavior" in a criminal case. But back in the civil case, summary judgment was entered in favor of the sheriff's department.

Reversing, the Vermont high court explained that Doe's claims, "assuming the facts support them, appear to fit squarely within the plain language of the last clause of section 219(2)(d). Plaintiff alleges that Forrest could not have committed the sexual assault on plaintiff except by virtue of the deputy sheriff position conferred on him by defendants. In the wording of the section, plaintiff's theory is that Forrest's appointment and his official powers and responsibilities 'aided in accomplishing the tort' on plaintiff."

Entitled "When Master is Liable for Torts of His Servants," section 219 provides:

"(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."

Here, with various omissions not noted in the quoted text, are some highlights of Justice John Dooley's majority opinion, adopting a version of the "aided in accomplishing the tort" clause of section 219(2)(d):

"[W]e are convinced that we must look further than the plain language of the clause. Indeed ... we must first choose among conflicting interpretations of the Restatement language before we can apply section 219(2)(d) to the facts of this case. In making this choice, we are guided by three important points.

"First, although only a limited number of decisions from other courts have relied upon the last clause of section 219(2)(d) in reaching a comparable decision, the language has been comprehensively and persuasively construed in recent decisions of the U.S. Supreme Court, Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Both are sexual harassment cases brought under Title VII of the Civil Rights Act and in which the central issue was employer liability for acts of a supervisor of the plaintiff employee.

"Our second introductory point follows from the U.S. Supreme Court decisions. It is important not to adopt too narrow an interpretation of the last clause of section 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 plaintiff's 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 section 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.

"Our third introductory point deals with the context of this case. The court in Faragher was very careful to analyze the policy judgments behind section 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 section 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.

"What makes the circumstances of this case virtually unique from a policy perspective is the extraordinary power that a law enforcement officer has over a citizen. A number of courts have talked about this power in finding vicarious liability in cases involving sexual assaults by police officers.

"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. In like manner, when the law enforcement officer is the wrongdoer, the citizen is also stripped of the official protection that society provides. The citizen is particularly vulnerable and defenseless.

"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 for protection.

"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.' "

After weighing alternative approaches to liability under section 219(2)(d), the Vermont Supreme Court majority concluded that based on the Faragher analysis, "if 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, vicarious liability will apply."

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