Jury must decide if state is liable for sexual assault of arrestee

A jury must determine if a Delaware state trooper’s alleged sexual assault of a woman he arrested for shoplifting fell within the scope of his employment in order to hold the state liable for damages, the Delaware Supreme Court has ruled.

The state high court reversed and remanded a Superior Court ruling in favor of the state, finding a factual dispute exists on whether the officer was acting within the scope of his employment.

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The New Castle County Superior Court based its decision that the state could not be held liable for the officer’s actions on only the alleged conduct itself “which obviously was not within his job description,” the high court said.

However, there are other factors to consider, according to the opinion.

The Supreme Court said that under Section 228 of the Restatement (Second) of Agency, conduct is within the scope of employment if:

•             It is of the kind the individual is employed to perform.

• It occurs within the authorized time and space limits.

• It is activated, in part at least, by a purpose to serve the master.

• If force is used, the use of force is not unexpected.

The current suit arose after Delaware State Police Officer Joshua Giddings arrested a woman for shoplifting at a Delaware mall in March 2009.

According to the Supreme Court opinion, Giddings drove the woman around the mall parking lot and told her he would drive her home if she engaged in oral sex.  Otherwise, he allegedly told her he would bring her to court and she would spend the weekend in jail.

(Click here for the opinion).

The woman agreed to Giddings’ demands and he then drove her home, the ruling says.

She reported the incident to the state police, who arrested Giddings and charged him with sexual misconduct, official misconduct and bribery.  He killed himself soon after his arrest, according to the opinion.

The woman sued the state and Giddings’ estate in the Superior Court, alleging Giddings assaulted and raped her.  She sought damages from the state under the respondeat superior doctrine, contending Giddings was acting in his role as a state trooper.

The doctrine holds employers responsible for the actions of employees when the actions are performed within the scope of their employment.

The  court granted the state’s request for summary judgment, finding that no reasonable jury would consider Giddings’ action part of his employment.  “Common sense dictates that sexually assaulting a crime suspect … is not incidental to the arrest,” the Superior Court said.

On appeal, the state high court agreed that sexual assault was not part of an arrest but said any wrongful conduct “by definition” is not something the person is hired to do.

“The question of whether a tortfeasor is acting within the scope of his employment is fact-specific and, ordinarily, is for the jury to decide,” the Supreme Court opinion said.

Giddings’ alleged actions satisfy the first two factors under the Restatement (Second) of Agency, the high court said, in that he was on duty, in uniform and the alleged assault occurred in his patrol car.

However, it is for a jury to decide if Giddings’ alleged actions were part of his service to his employer, in order to satisfy the third factor.

Finally, the court said, the fourth factor requires any force used to be expected and foreseeable.  Some jurisdictions have considered sexual assault by police officers to be a foreseeable risk, the opinion said, and the evidence does not suggest that Giddings’ alleged actions were unforeseeable.

Doe v. State, No. 447, 2012, 2013 WL 5006496 (Del. Sept. 12, 2013).