Opinion
C.A. No. K15C-05-006 WLW
12-17-2015
GABRIEL MOJICA, Plaintiff, v. THE SMYRNA SCHOOL DISTRICT, THE SMYRNA BOARD OF EDUCATION, SMYRNA HIGH SCHOOL, STACY C. COOK, in her individual and official capacities; JENNIFER J. SUAREZ, in her individual and official capacities and MARTIN SUAREZ, Defendants.
Tabatha L. Castro, Esquire of The Castro Firm, Inc., Wilmington, Delaware; attorney for Plaintiff. David H. Williams, Esquire and James H. McMackin, III, Esquire of Morris James, LLP, Wilmington, Delaware; attorneys for Defendants The Board of Education of the Smyrna School District and Stacy C. Cook. Danielle K. Yearick, Esquire of Tybout Redfearn & Pell, Wilmington, Delaware; attorney for Defendants and Counterclaim Plaintiffs Jennifer J. Suarez and Martin Suarez.
OPINION
Upon Defendants The Board of Education of the Smyrna School District and Stacy C. Cook's Partial Motion to Dismiss.
Denied. Tabatha L. Castro, Esquire of The Castro Firm, Inc., Wilmington, Delaware; attorney for Plaintiff. David H. Williams, Esquire and James H. McMackin, III, Esquire of Morris James, LLP, Wilmington, Delaware; attorneys for Defendants The Board of Education of the Smyrna School District and Stacy C. Cook. Danielle K. Yearick, Esquire of Tybout Redfearn & Pell, Wilmington, Delaware; attorney for Defendants and Counterclaim Plaintiffs Jennifer J. Suarez and Martin Suarez. WITHAM, R.J.
The Plaintiff in this civil action for damages is Gabriel Mojica ("Mojica"). Mojica was a student at Smyrna High School when the events underlying the current claim occurred. The Defendants in this action are the Smyrna School District, the Board of Education of the Smyrna School District, and Smyrna High School (collectively "Smyrna"); Stacy C. Cook ("Cook"), Smyrna High School's principal when the underlying events occurred; Jennifer J. Suarez ("Suarez"), a former teacher and cross country track coach at Smyrna High School who had sexual relations with Mojica; and Martin Suarez ("Martin"), husband of Jennifer Suarez.
Mojica filed an action for damages against Smyrna, Cook, Suarez, and Martin. The claims against Smyrna and Cook include gross negligence, grossly negligent supervision, grossly negligent hiring/retention, and grossly negligent failure to warn, train, or educate. Claims against Smyrna, Cook, and Suarez include sexual battery, sexual harassment, and false imprisonment. A claim was filed against all defendants for the intentional infliction of emotional distress ("IIED"), and a claim was filed against Martin for assault.
This partial motion to dismiss has been filed by Smyrna and Cook, and involves only the claims of IIED, sexual battery, sexual harassment, and false imprisonment. The issue before the Court is whether Smyrna and Cook may be held vicariously liable for Suarez's actions under the doctrine of respondeat superior. For the following reasons, Defendants' partial motion to dismiss is denied.
FACTS
In 2012, Mojica was a sophomore at Smyrna High School and Suarez was his math teacher and track coach. Mojica alleges that one day after practice Suarez drove him home alone and told him that she "had feelings" for him. He further alleges that Suarez began making unwarranted sexual advances towards him, that this contact continued into his junior year, and that Suarez would occasionally touch his genital area when he was warming up for practice. In February 2013, Mojica stayed after school for track practice, and after practice was asked by Suarez to accompany her to her classroom. While in the classroom, with two other students guarding the classroom door, Suarez performed oral sex on Mojica. Mojica was still a minor at the time of the act.
Rumors of the act began to circulate around the school, along with rumors that a video of the act existed. As a result, the Smyrna Police Department obtained a search warrant and confiscated Mojica's cell phone and other electronic equipment. Martin allegedly approached Mojica, demanded Mojica turn over the video that was rumored to exist, and accused Mojica of forcing Suarez to perform the acts and of attempting blackmail. Suarez was subsequently arrested.
In November 2014, Suarez pled guilty to one count of rape in the fourth degree. She was sentenced to ten years at supervision level five, suspended after sixth months for one year at supervision level three, and is required to register as a Tier II sex offender. In May 2015, Mojica filed the case at bar. In June 2015, Smyrna and Cook filed their answer and this motion to dismiss the counts of IIED, sexual battery, sexual harassment, and false imprisonment under Superior Court Civil Rule 12(b)(6).
STANDARD OF REVIEW
"Delaware is a notice pleading jurisdiction. Thus, for a complaint to survive a motion to dismiss, it need only give general notice of the claim asserted." When deciding a motion to dismiss under Rule 12(b)(6), all well-pleaded allegations in the complaint must be accepted as true. The test for sufficiency is a broad one: the complaint will survive the motion to dismiss so long as "a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint." However, the Court "will not accept conclusory allegations unsupported by specific facts or [] draw unreasonable inferences in favor of the non-moving party." Stated differently, a complaint will not be dismissed unless it clearly lacks factual or legal merit.
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005) (internal citations omitted).
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
Id. (citing Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1952)).
Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (quoting Clinton v. Enterprise Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)).
Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).
DISCUSSION
"Under the Restatement of Agency (2d) § 228, conduct is within the scope of employment if '(1) it is of the kind he is employed to perform; (2) it occurs within the authorized time and space limits; (3) it is activated, in part at least, by a purpose to serve the master; and (4) if force is used, the use of force is not unexpectable.'" The relevant test is whether the service in which the tortious act was committed was within employer's ordinary course of business. "Stated differently, the test is whether the employee was acting in the ordinary course of business during the time frame within which the tort was committed."
Doe v. State, 76 A.3d 774, 776 (Del. 2013), reargument denied (Oct. 8, 2013) (citing Draper v. Olivere Paving & Constr. Co., 181 A.2d 565, 569 (Del.1962)).
Id. (citing Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1351 (4th Cir. 1995)).
Doe, 76 A.3d at 777.
In Doe v. State, the plaintiff sued the State of Delaware for the tortious conduct of an on-duty Delaware State Police Officer. The officer was supposed to be transporting a woman accused of shoplifting to court. After taking the woman into custody, the officer drove to a remote area and allegedly told the plaintiff that he would let her go home if she agreed to perform oral sex. He also allegedly told her that if she refused to accede to his demands, that "he would take her to court, where bail would be set, and that she would have to spend the weekend in jail." After the plaintiff complied with the officer's demands, the officer drove her home. The plaintiff reported the incident to the State Police, and the officer was arrested. The plaintiff filed suit against the State of Delaware under the doctrine of respondeat superior. The trial court held the officer's conduct was outside the scope of his employment, and granted the State's motion for summary judgment.
Id. at 775.
Id.
On appeal, the Delaware Supreme Court clarified the scope of employment test by stating that the relevant test was not whether the officer's sexual assault was within the ordinary course of the State's business, but whether the officer was acting in the ordinary course of business during the time frame within which the tortious act was committed. The Court found that the first two factors of the four part scope of employment test were met because the officer was performing the kind of work he was employed to perform when the tortious act occurred, and was thus "acting within authorized time and space limits." The Court noted that the third factor, whether the conduct was activated to serve his employer, has been broadly construed as a matter for the jury to decide. The Court further noted that under the fourth factor, whether the use of force was not unexpectable, sexual assaults by people in positions of authority are foreseeable risks.
This clarification was reiterated in Hecksher v. Fairwinds Baptist Church, Inc. when the Court stated "[t]his Court has clarified that '[w]rongful conduct, by definition, is not within the scope of employment in the sense that it is not conduct the employee was hired to perform. The relevant test, however, is not whether [the wrongful act] was within the ordinary course of business of the [employer], . . . but whether the service itself in which the tortious act was done was within the ordinary course of such business . . . .'" Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1201 (Del. 2015) (citing Doe, 76 A.3d at 776).
In Draper v. Olivere Paving and Const. Co., the Delaware Supreme Court approved the Restatement (Second) of Agency § 228(1) which states "that the conduct of a servant is within the scope of his employment if (1) it is of the kind he is employed to perform; (2) it occurs within the authorized time and space limits; (3) it is activated, in part at least, by a purpose to serve the master; and (4) if force is used, the use of force is not unexpectable by the master." Draper, 181 A.2d 570.
Id. at 777.
The defense primarily relies on two cases in support of their partial motion to dismiss. In the first case, Tell v. Roman Catholic Bishops of Diocese of Allentown, the plaintiff filed an action against an out of state Roman Catholic Diocese for alleged sexual abuse by a priest employed by the Diocese. The court held the Diocese was not vicariously liable for the actions of the priest because the priest's actions were not within his scope of employment. The court noted the priest was not hired to sexually abuse a minor, and the abuse was not motivated by a desire to serve the church. In the second case, Simms v. Christina School District, the plaintiff filed an action against the school district for alleged sexual abuse by a school resident advisor that occurred while the plaintiff was a resident student at the Margaret S. Sterk School for the Hearing Impaired. The court granted the school district's motion for summary judgment noting that no reasonable jury could find that the continuous sexual abuse of the plaintiff was actuated by a purpose to serve the employer, or that the misconduct was in any way expectable by the employer.
2010 WL 1691199, at *1 (Del. Super. 2010) (decided before Doe).
2004 WL 344015, at *1 (Del. Super. 2004) (decided before Doe).
The case at bar closely parallels Doe v. State. Both Suarez and the officer in Doe were in positions of authority, and both committed similar tortious acts while acting within the time and space limits of their employment. Just as the officer in Doe met the first two factors of the scope of employment test, so did Suarez because she was arguably performing the type of work she was employed to perform when the tortious act occurred. Suarez asked Mojica to accompany her to her classroom at the conclusion of track practice, and she performed the tortious act on school grounds. As in Doe, the question under the third factor of whether the conduct was activated to serve the employer is a question for the jury to decide. Finally, like the officer in Doe, Suarez was in a position of authority, and as the Doe Court noted, sexual assaults by people in positions of authority are foreseeable risks.
Counsel for Smyrna argues that with the exception of one allegation of genital touching, the allegations occurred outside of Suarez's teaching and coaching duties. However, in addition to allegations of phone calls and explicit comments for which no time frame is given, Suarez asked Mojica to go to her class room at the conclusion of track practice in February 2013. Suarez was still in a position of authority and on school grounds at the time the request was made. In this situation, a credible contention could be made that Suarez was acting withing the scope of her authority when she asked Mojica to accompany her to her classroom.
Counsel further argues that teachers and police officers are in different lines of work with different expected uses of force. Because teachers are statutorily prohibited from imposing corporal punishment, and because there are further statutory limitations on a teacher's use of force to mechanically or physically restrain a student, counsel argues that the use of force would be much more expected from a police officer than from a teacher. However, physical force was not used in Doe or in the case at bar. Like a police officer, a teacher has the ability to punish a student, even if that punishment is not of the corporal variety. For example, a teacher may award a lower grade, assign detention, or implement proceedings for suspension or expulsion. A minor may not question a request by a teacher for fear of receiving some type of punishment, or may acquiesce simply because they have been taught that they have to listen to the teacher. Thus, a teacher does maintain authority over a student even if that authority is not of the same type as that of a police officer. The Doe Court's opinion noted that "assaults by police officers and others in positions of authority are foreseeable risks," thus bringing teachers under the purview of Doe.
Doe, 76 A.3d at 777.
Although the current case is also analogous to Tell and Simms, these two cases were decided before Doe and no longer form a sound basis for granting dismissal or summary judgment in cases involving the doctrine of respondeat superior. The Supreme Court of Delaware has clarified the rule to be applied when determining when an employee is acting within the scope of his employment. The Court has held that tortious conduct by an employee does not need to be of the type authorized by the employer, and that whether the act was activated in furtherance of the employer's objectives is a question for the jury. Based on this clarification, the test as applied in Tell and Simms was applied in too narrow a manner. Future applications of the scope of employment test require a broad interpretation that will not disqualify conduct not specifically authorized by the master, or conduct that is seriously criminal, from reaching the jury.
Further Analysis of the Delaware Supreme Court's Adoption of the
Restatement (Second) of Agency §§ 228, 229, and 245.
The Delaware Supreme Court has cited the Restatement (Second) of Agency when considering appeals involving the scope of employment, but has never explicitly adopted any section in toto. For example, the Court has considered § 228, entitled General Statement, on five separate occasions. Two of the cases, Wilson v. Joma, Inc. and Coates v. Murphy, involved employers who were sued under the doctrine of respondeat superior after their employee injured a plaintiff in automobile accidents. In both cases, the Court cited § 228 in full. This included § 228(2) which states "[c]onduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time and space limits, or too little actuated by a purpose to serve the master." Although § 228(2) was not discussed in either case, it was cited as part of the scope of employment rule.
The Restatement (Second) of Agency § 228 (1958) states:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
537 A.2d 187 (Del. 1988). In this case, the plaintiff brought an action against the employer for injuries suffered after being struck by a motorcycle operated by the defendant's employee. The employee was on his lunch break, but was also picking up sandwiches for another employee so that the other employee did not have to leave the worksite. Id. at 188. The Court reversed the trial court's entry of summary judgment because the employee may have been acting in the employer's interest by picking up lunch for a fellow employee.
270 A.2d 527 (Del. 1970). In this case, the plaintiff's estate brought an action against the employer after the plaintiff was killed by the defendant's employee in an automobile accident. The employee was on his lunch break and was not performing any job related duties. Id. at 527-28. The Court affirmed the trial court's entry of summary judgment. Id. at 528.
Restatement (Second) of Agency § 228(2) (1958).
The remaining three cases, Hecksher v. Fairwinds Baptist Church, Inc., Doe v. State, and Draper v. Olivere Paving and Construction Co., cases similar to the case at bar, involved serious crimes by employees. In these cases, the Court cited § 228(1) but made no reference to § 228(2). Furthermore, comments to § 228 are not discussed. For example, comment a to § 228 states in part that "[t]he manifestations of the master determine what conduct may be within the scope of employment, since it includes only acts of the kind authorized, done within limits of time and space which approximate those created by the authorization." Comment a is not discussed or applied to the facts in any of these three cases. In Doe, the Court noted that "[n]o one would argue that beatings, stabbings, shootings, or sexual assaults are incidental to almost any form of employment. Wrongful conduct, by definition, is not within the scope of employment in the sense that it is not conduct the employee was hired to perform." The Court then notes that the relevant test is not whether the tortious act was within the ordinary course of business, or stated another way, the relevant test does not consider whether the act was of a kind authorized. These five cases indicate that the Supreme Court of Delaware has adopted § 228(1) as the appropriate test for determining whether an employee was acting within the scope of employment, but has rejected § 228(2) and comment a.
115 A.3d 1187 (Del. 2015). In this case, a teacher at a school run by Fairwinds Baptist Church allegedly sexually abused a student on school property, and a secretary at the school became aware of the abuse but failed to report it. Id. at 1192-96. Although Respondeat Superior was not an issue in this case, the Court thought it contextually important to highlight the first prong of § 228 to show that a reasonable jury could conclude that the secretary's conduct qualified as conduct she had been employed to perform. Id. at 1201.
76 A.3d 774 (Del. 2013). In this case, an on-duty Delaware State Trooper allegedly coerced the plaintiff into performing oral sex while transporting the plaintiff to the courthouse. Id. at 775.
181 A.2d 565 (Del. 1962). In this case, the defendant's employee slashed the plaintiff's throat with a corkscrew during an altercation that occurred after the employee attempted to prevent the plaintiff from driving in a construction area. Id. at 566-67. The Court reversed the trial court's entry of summary judgment for the employer because it found the employee's actions may not have been unexpectable.
Restatement (Second) of Agency § 228 cmt. a (1958) (emphasis added).
Doe, A.3d at 777.
The Delaware Supreme Court has also considered § 229, entitled Kind of Conduct Within Scope of Employment, on two occasions. In Draper, the Court discussed only six of ten elements found in § 229(2). Although the Court found the following six factors pertinent: (1) whether the act is one commonly done by such servants; (2) the time, place and purpose of the act; (3) whether or not the act is outside the enterprise of the master; (4) whether or not the master has reason to expect that such an act will be done; (5) the similarity in quality of the act done to the act authorized; and (6) the extent of departure from the normal method of accomplishing an authorized result, they did not discuss § 229(2)(j) which considers whether the act was seriously criminal. The Court found the only pertinent element open to debate was whether the employee's use of force was expectable by the employer. Noting other decisions citing examples of excessive force by watchman, guards, etc., the Court found that the use of force in the Draper situation was not entirely unexpectable. Whether the act was seriously criminal, and therefore not conduct the employee was hired to perform, was immaterial. In Hecksher, the Court cited Draper and § 229(2)(f) in support of the proposition that "a court should consider 'whether or not the master has reason to expect that such an act will be done' when determining whether the act is within the scope of employment." The Court's analysis of § 229 focused on whether the act, whether criminal or not, was expectable.
The Restatement (Second) of Agency § 229 (1958) states:
(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between different servants;
(e) whether the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
Hecksher, 115 A.3d at 1203 n.63 (quoting Restatement (Second) of Agency § 229(2)(f)).
The Delaware Supreme Court has also considered § 245, entitled Use of Force, on two occasions. In Draper, the Court noted the "Restatement would impose liability upon the master for his servant's intended tortious harm 'if the act was not unexpectable in view of the duties of the servant.'" In Hecksher, the Court noted "that an employer may be held vicariously liable for his servant's intended tortious harm if the act was not unexpectable in view of the duties of the servant." Again, the focus of the analysis in both cases was on expectability.
The Restatement (Second) of Agency § 245 (1958) states:
A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant's employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant.
Draper, 181 A.2d 569 (quoting Restatement (Second) of Agency § 245 (1958)).
Hecksher, 115 A.3d at 1203 (citing Draper, 181 A.2d at 569) (internal quotations omitted). --------
In summary, the Supreme Court of Delaware's application of the scope of employment test in cases involving serious crimes was clarified in Doe and the clarification was reiterated in Hecksher. Section 228(1) is to be read broadly. If an employee is acting in the ordinary course of business during the time frame within which the tort was committed, then the first two elements of § 228(1), whether the conduct is of the kind he is employed to perform and whether the conduct occurs within the authorized time and space limits, are met. The third element, whether an employee is activated by a desire to serve his master, has been determined to be a matter for the jury. Under the fourth element, whether the employee's act was expectable, the Court has determined that acts not specifically authorized or even contemplated by the employer, including serious criminal acts, can be considered expectable. In Doe, the Court specifically noted that acts of sexual abuse by persons in positions of authority are foreseeable risks, and therefore must be considered expectable.
CONCLUSION
Based on the foregoing analysis, the complaint does not clearly lack factual or legal merit. Therefore, the Defendants' partial motion to dismiss is DENIED.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Hon. William L. Witham, Jr.
Resident Judge WLW/dmh