Doe v. Forrest, 2004 VT 37

Summary

The Supreme Court of Vermont considers whether a sheriff and county sheriff's department may be held liable for a deputy sheriff's on-duty sexual misconduct. The court holds that the defendants are not directly liable under 24 V.S.A. § 309 and that the misconduct was outside the scope of employment, but adopts Restatement (Second) of Agency § 219(2)(d) and finds a genuine issue of material fact regarding whether the deputy was aided in committing the tort by the agency relationship. The court affirms in part, reverses in part, and remands.

Holdings

1. Section 309 does not impose liability on a sheriff for a deputy's intentional sexual assault merely because the deputy failed to prevent his own criminal conduct. The statute concerns official acts and neglects of official duties, not strict liability for all criminal misconduct by on-duty deputies.
2. The deputy's sexual assault was outside the scope of employment because it was not actuated, even in part, by a purpose to serve the employer.
3. Vermont adopts Restatement (Second) of Agency § 219(2)(d) as an exception to the scope-of-employment rule for assessing an employer's vicarious liability for an employee's tortious conduct outside the scope of employment.
4. The defendants were entitled to summary judgment on the apparent-authority theory because no evidence showed that the sheriff or Sheriff's Department manifested authority for the deputy to engage in sexual misconduct.
5. Summary judgment was improper on the aided-by-agency-relation theory because a fact-finder could determine that the deputy's employment relationship, official position, access, authority, and police equipment aided him in accomplishing the sexual assault.

Questions Presented

1. Whether 24 V.S.A. § 309 makes a sheriff directly liable for a deputy's on-duty criminal sexual misconduct based on the deputy's neglect of duty.
2. Whether the deputy's sexual assault occurred within the scope of his employment for purposes of respondeat superior.
3. Whether Vermont should adopt Restatement (Second) of Agency § 219(2)(d) as an exception to the scope-of-employment rule.
4. Whether the deputy's uniform, badge, firearm, and handcuffs created apparent authority to commit the assault.
5. Whether disputed evidence showed that the deputy was aided in accomplishing the assault by the existence of his employment relationship.

Disposition

reversed_and_remanded