## Facts

- A Delaware State Police trooper validly arrested Jane D.W. Doe for shoplifting and also had authority to take her into custody on an outstanding capias.
- During transport, the trooper allegedly offered to take Doe home and delay processing the capias if she performed oral sex; he threatened that refusal would result in being taken to court for bail and spending the weekend in jail.
- Doe performed oral sex in the patrol car; the trooper took her home rather than completing standard arrest procedures.
- Doe reported the incident; an investigation produced corroborating physical evidence, and the trooper was criminally charged. He later died by suicide.
- Doe’s estate sued the Delaware Department of Public Safety, seeking vicarious liability for the trooper’s intentional torts under respondeat superior.
- Earlier proceedings resulted in (i) summary judgment for the State, (ii) reversal on appeal directing a jury determination of “scope of employment,” (iii) a defense verdict for the State, and (iv) affirmance based on law-of-the-case principles.

## Issues

1. Whether the State can be vicariously liable when an arresting officer uses State-conferred custodial authority to coerce sexual acts, even if the misconduct is not within the traditional scope of employment under Restatement (Second) of Agency § 228.
2. Whether employer vicarious liability in these circumstances (including “scope of employment” and Restatement § 219(2) exceptions) is a question of law for the court rather than a question for the jury.
3. Whether an arrestee can legally consent to sexual acts with the arresting officer while in custody, such that “consent” may be treated as a meaningful consideration in liability instructions.

## Decision

- The Delaware Supreme Court vacated the jury verdict for the State.
- The Court held the State was liable as a matter of law and remanded with instructions to enter judgment for Doe on liability.
- The Court ordered a new jury trial limited to damages.
- The Court disapproved its earlier directive requiring a jury to decide scope of employment on these facts and characterized that prior approach as erroneous.
- The Court held that an arrestee in custodial detention cannot, as a matter of law, voluntarily consent to sexual contact with the arresting officer.

## Legal Principles

- Traditional vicarious liability under Restatement (Second) of Agency § 228 generally requires conduct within time and space limits and motivated at least in part by a purpose to serve the employer; purely personal sexual misconduct does not satisfy that motivation requirement.
- Restatement (Second) of Agency § 219(2) can impose employer liability for intentional torts outside § 228 where the employee was aided in accomplishing the tort by the agency relationship, including misuse of official custodial power.
- When an officer makes a valid arrest and then exploits State-conferred custody to obtain sexual acts, employer liability may attach even without proof the officer acted to serve the employer.
- The existence and application of scope-of-employment doctrine and § 219(2) exceptions on undisputed material facts present questions of law for the court.
- In custodial arrest circumstances, “consent” is legally ineffective because the arrestee’s compliance occurs under coercive authority backed by potential criminal consequences for resistance.

## Conclusion

The court held that a State employer is vicariously liable when an arresting officer uses custodial authority to coerce sex, even though the conduct is personally motivated and outside traditional scope-of-employment analysis; the liability determination is for the court as a matter of law, and an arrestee cannot legally consent to sex with the arresting officer while in custody.


Sherman v. Del. Dep’t of Pub. Safety, 190 A.3d 148 (Del. 2018)