IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JAMES SHERMAN, as
Adrninistrator of the Estate of
DAWN WORTHY,

Plaintiff,

v. C.A. NO. NioC-08-178 VLM
THE sTATE oF DELAWARE
DEPARTMENT oF PUBLIC
sAFETY,

Defendant.
ORDER

Submitted: April 24, 2017
Decided: May 8, 2017

Upon Consideration of Plaintijj‘ ’s Motionfor New Trial and
Motion to SetAsia'e Vem’ict. DENIED.

AND NOW TO WIT, this 8th day of May, 2017, upon consideration of
Plaintiff, Jarnes Sherman, as Adrninistrator of the Estate of Dawn Worthy,
(“Plaintiff”)’s Motion for New Trial and Motion to Set Aside Verdict (“Motions”),
Defendant, The State of Delaware Department of Public Safety, (“State”)’s
responses thereto, the parties’ positions at oral argument, and the record in this
case, IT IS HEREBY ORDERED that Plaintist Motions are DENIED for the

following reasons:

l. On January l9, 2017, a Superior Court jury returned a verdict in favor
of the State following a three-day civil trial. The jury determined that the State
was not liable for the allegedly tortious conduct of a police officer under the theory
of respondeat superior for engaging in oral sex in his police car with a woman
arrested for shoplifting. The jury did not hear directly from the woman or the
police officer, as both died due to a drug overdose and suicide, respectively.

2. On February l, 2017, Plaintiff filed the present post-trial Motions,
moving the Court for a new trial on the basis that the jury verdict was against the
great weight of evidence, or that the jury instructions were erroneous and
undermined the jury’s ability to intelligently reach a verdict.

3. This case has undergone a protracted period of litigation. The
allegations stem from March 2009, where it was alleged that Officer Giddings
sexually assaulted Plaintiff’ s decedent, Dawn Worthy, after he arrested her for
shoplifting at the Christiana Mall. The case has twice been appealed and returned
to the Superior Court. Many of the same issues in Plaintiff’s present Motions were

the focus of the prior appeals to the Supreme Court.l

 

l See Sherman v. State, 133 A.3d 971 (Del. 2016) (affirming in part and reversing in part entry of
summary judgment); Doe v. State, 76 A.3d 774 (Del. 2013) (reversing entry of summary
judgment to defendant on scope of employment), reh ’g denied (Oct. 8, 2013).

2.

4. Plaintiff’ s Motion for a New Trial and Motion to Set Aside Verdict
arise under Delaware Superior Court Civil Rule 59(a).2 “A new trial may be
granted as to all [parties and/or issues] in an action in which there has been a trial
for any of the reasons for which new trials have heretofore been granted in the
Superior Court.”3 One such reason is an asserted error in the jury instructions “A
trial court’s charge to the jury will not serve as grounds for reversible error if it is
‘reasonably informative and not misleading, judged by common practices and
standards of verbal communication.”’4 If, when taken as a whole, the “alleged
deficiency in the jury instructions undermined the jury’s ability to intelligently
perform its duty in returning a verdict,” then a new trial is warranted5 Another
reason for a new trial arises when the jury verdict is against the great weight of
evidence. “On a motion to grant a new trial the verdict must be manifestly and

palpably against the weight of the evidence or for some reason, or a combination of

 

2 See DEL. SUPER. Cr. Clv. R. 59(a).

3 Id.

4 Probst v. State, 547 A.2d 114, 119 (Del. 1988) (quoting Baker v. Reid, 57 A.2d 103, 109 (Del.
1947)). See also Riggins v. Mauriello, 603 A.2d 827, 830 (Del. 1992); Culver v. Bermett, 588
A.2d 1094, 1096 (Del. 1991); Flammer v. State, 490 A.2d 104, 128 (Del. 1984).

5 Lisowski v. Bayhealth Med. Ctr., lnc., 2016 WL 6995365, at *2 (Del. Super. Nov. 30, 2016)
(quoting Culver, 588 A.2d at 1098). See also Adkins v. State, 149 A.3d 517, 2016 WL 5940363,
at *3 (Del. 2016) (TABLE) (“In evaluating the propriety of a jury charge, the entire instruction
must be considered with no statement to be viewed in a vacuum.”) (quoting Flamer, 490 A.2d at
128); Ireland v. Gemcraft Hornes, Inc., 29 A.3d 246, 2011 WL 4553166, at *3 (Del. 2011)
(TABLE) (“In evaluating the propriety of a jury charge, the jury instructions must be viewed as a
whole.”).

reasons, justice would miscarry if it were allowed to stand.”6 The Court must defer
to the jury unless “‘the evidence preponderates so heavily against the jury verdict
that a reasonable jury could not have reached [the] result’ that this jury did.”7

5. During oral argument on April 24, 2017, Plaintiff’ s counsel stated that
both Motions largely overlap. As to both, he explained that, while the jury
instructions were accurate statements of the law, they were “not helpful” to the
jury because they failed to elucidate the distinction-in the course and scope of
employment instruction_between “general” and “specific” wrongful conduct.
Plaintiff’s counsel asserted that Officer Giddings’ “genera ” conduct (i.e., his duty
to arrest and transport detainees) should have been expressly contrasted with his
“specific” conduct (i.e., the sexual act). Plaintift`s counsel contends that the

8 contained a passing

Supreme Court’s first decision in this case, Doe v. State,
inference that implied the Court must instruct the jury on this general/specific
distinction. Other than this inference, Plaintiff’s counsel concedes that there is no

case law to support his argument on this issue; instead, he appeals to the Court’s

discretion to grant a new trial under Rule 59(a).

 

6 McCloskey v. McKelvey, 174 A.2d 691, 693 (Del. Super. 1961) (citing E. Air Lines Inc. v.
Union Trust Co., 239 F.2d 25 (D.C. Cir. 1956); Wade v. Lane, 189 F.Supp. 661, 663 (D.D.C.

1960)).

7 Owens v. Kelly, 2003 WL 1919351, at *1 (Del. Super. Apr. 22, 2003) (alteration in original)
(quoting Storey v. Camper, 401 A.2d 458, 465 (Del. 1979)).

8 76 A.3d 774 (Del. 2013).

6. The Court first addresses Plaintiff’ s Motion to Set Aside the Verdict
based on the “great weight of the evidence.” Plaintiff"s argument in this Motion is
threefold. First, Plaintiff contends that the “overwhelming weight of the evidence
was that there was no consent [to the sexual act], only coercion.”9 Thus, the dearth
of evidence regarding Ms. Worthy’s consent to Officer Giddings’ sexual act means
that “no reasonable jury could have found” that Officer Giddings did not commit
either an assault or battery; a necessary finding that the jury needed to make in
order to find liability against the State. Second, Plaintiff’s argument dovetails with
his Motion for a New Trial: the great weight of evidence necessitates a finding that
Officer Giddings was operating within the scope of his employment with the State
at all times relevant to the allegations of sexual assault_also a finding needed for
Plaintiff to prevail.lo Finally, he argues that evidence on the foreseeability of
Officer Giddings’ conduct was overwhelming and warrants a new trial.ll

7. In response, the State argues that, first, there was sufficient evidence
in the record for the jury to consider the factual inconsistencies from both Officer
Giddings and Ms. Worthy regarding the events that led up to the sexual act.12

Second, the State counters Plaintiff’s argument on the evidence regarding scope of

 

9 Plaintiff s Motion to Set Aside Verdict at 3 (Feb. 1, 2017).
10 see iad at 5-8, 10-12.
11 see id. at 8-10.

12 See Defendant’s Response to Plaintiff’s Motion to Set Aside Verdict at 2-4.
5

employment13 Principally, the State argues that Plaintiff conflates the Supreme
Court’s prior holdings in this case: in both appeals, the Supreme Court addressed
motions for summary judgment, where the Court necessarily must take all
inferences in favor of the non-moving party. At trial, however, the State contends
that it contested all aspects of vicarious liability and the jury was free to reject
Plaintiff" s argument Finally, the State maintains that the jury was free to

“determine foreseeability in favor of Defendant based upon the disputed

evidence.” 14

8. The Court finds no merit in Plaintiff s Motion to Set Aside Verdict.
There is no question that the sexual act was wrongful Nevertheless, one issue for
the jury to determine was whether Officer Giddings’ conduct amounted to a tort for

5 On this issue, the jury heard

which the State could be held vicariously liable.l
limited_and inconsistent_versions of the alleged tortious conduct through

statements made by the now-deceased individuals As to Officer Giddings, the

jury heard his varying versions of the incident: from denying the act ever occurred,

 

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15 At many times in this litigation, the line between the criminal and civil arena blurred. One
example was Plaintiff`s insistence in charging the jury with the Pattern Jury lnstruction for Rape
Second Degree. The Court declined to read this instruction, since the jury was not being asked
to determine the guilt or innocence of Officer Giddings. The Court, on more than one occasion,
was required to remind Plaintiff’ s counsel that this case was a civil_and not a criminal_case.

6

to not recalling having received oral sex, and finally, to maintaining that it was Ms.
Worthy’s idea to engage in the sexual act.

9. Despite Officer Giddings’ inconsistent statements, Ms. Worthy’s
statements proved similarly problematic During the investigation into the
incident, Ms. Worthy made inconsistent statements about the sequence of events
leading up to the alleged sexual assault. Her statements were not easily
reconcilable with additional testimony from live witnesses presented at trial. For
instance, Ms. Worthy’s credibility was impeached with evidence from Sergeant
Maher, who testified that an investigation into Ms. Worthy’s recollection of the
incident did not comport with the physical characteristics of Officer Giddings’
vehicle. Because there was sufficient evidence to tip in favor of either side on
whether a tortious act was committed by foicer Giddings, the jury’s verdict is
entitled to considerable deference.16

10. Additionally, and more to the crux of what the jury was called upon to
decide, there was sufficient evidence upon which the jury could find that Officer
Giddings was not acting within the scope of his employment or that his conduct
was not reasonably foreseeable. In Doe v. State, the Supreme Court held that
summary judgment was not appropriate where a factual dispute existed regarding

whether Officer Giddings acted within the scope of his employment with the State

 

16 see storey v. Campe,», 401 A.2d 458, 465 (Del. 1979).
7

when he allegedly assaulted Ms. Worthy. The Doe Court stated that the Superior
Court was required to broadly construe the four scope-of-employment factors,

7 However, at trial, the jury is free to

which are typically left to a jury to decide.l
accept or reject Plaintiff s proffered evidence on each of the four factors where
there is sufficient evidence for the jury to do so.18 To wit, in Sherman v. State,19
marking this case’s second appeal to the Supreme Court on summary judgment, the
Sherman Court denied summary judgment to Plaintiff on the issue of scope of
employment.ZO Specifically, the Supreme Court stated that the issue of course and
scope of employment was for the jury to decide. And so they did.

11. The evidence presented at trial on this issue included Officer
Giddings’ failure to follow standard operating procedures (“SOP”) or protocol and
his failure to take Ms. Worthy directly to the Justice of the Peace Court on her
outstanding capias. The State submitted evidence that Officer Giddings was
unavailable for further police calls until much later that evening; again, in violation

of SOP. The jury was free to consider that the location of the alleged assault

occurred behind a hill of dirt on a construction site, arguably outside the space and

 

‘7 Doe v. szaze, 76 A.36 774, 777 (Del. 2013).

18 See id. (“The third factor_whether Giddings was activated in part to Serve his employer_has
been construed broadly as a matter for the jury to decide.”) (emphasis added) (citations
omitted)).

‘9 133 A.3d 971 (D61.2016).

20 see id. at 978-79.

time limits of his employment Moreover, the evidence suggested that Officer
Giddings may have acted exclusively with the intent to serve himself and not the
employer.

12. Finally, Plaintiff argues there was overwhelming evidence on the
issue of foreseeability to warrant a new trial. This Court disagrees The only
evidence presented regarding the foreseeability of sexual assault of arrestees by on-
duty officers came from Colonel MacLeish’s testimony that, as of 2009 when he
retired from the Delaware State Police, an “extremely small percentage” of officers
engaged in sexual misconduct during an arrest. However, two of Officer
Giddings’ supervisors testified that they were unaware of any allegations of sexual
misconduct against him prior to the incident in question, and therefore, the jury
was free to consider all of the testimony from the various law enforcement
representatives on the issue of foreseeability. The Court finds that the evidence at
trial supports a jury verdict in favor of the State; a defense verdict was not against
the great weight of evidence.

13. The Court now turns to Plaintiff" s Motion for a New Trial based on
the alleged errors in the jury instructions. As discussed above, Plaintiffs Motion
principally attacks the Court’s instructions regarding course and scope of

employment21 On this issue, Plaintiff argues that the Court “relied [too]

 

21 see Plaintist Motion for New Triai at 4-6 (Feb. i, 2017).
9

extensively on form instructions. . . .”22 While conceding that the elements of
scope of employment and the associated dual purpose rule were appropriately
included in the Court’s instruction,23 Plaintiff argues that the Court’s failure to
define what the relevant “service” referred to in the instruction mislead the jury
into connoting the word “service” with Officer Giddings’ alleged sexual assault of
Ms. Worthy.24

14. Furthermore, Plaintiff argues that the Court’s failure to instruct the
jury with his proffered instruction on the foreseeability of police officer sexual
misconduct, coupled with the State’s ability to argue that the conduct was
unforeseeable, was in error.25 Additionally, Plaintiff contends, as he did during the
prayer conference, that lack of foreseeability is an affirmative defense for which
the State bore the burden of proof.26 Finally, Plaintiff argues that the failure to

instruct the jury with Plaintiff’s proposed “No Consent” instruction was in error.27

 

22 Id. at 1.

23 See id. at 4.
24 See id. at 5.
25 See id. at 6-9.

26 See id. at 9-10. See Transcript of Prayer Conference at 3:1-4:1 (Jan. 19, 2017) [hereinafter
Tr.].

27 See Plaintiffs Motion for New Trial at 10.
10

15. The Court finds that Plaintiff’s Motion fails to present grounds for
why the jury’s verdict should be disturbed in this case, There are several problems
with Plaintiff’S arguments in favor of a new trial.

16. First, and perhaps most importantly, Plaintiff’ s fastidious attention to
the general/specific distinction overlooks the pattern jury instructions and the
Court’S attempt to meld the Doe Court’s holding into a cohesive and intelligent
instruction to the jury. Plaintiff concedes that the Court’s instruction on course and
Scope of employment is entirely consistent with Delaware law and substantially
supplements the pattern instructions for this type of instruction.28 lmportantly, the
instruction given is nearly identical to the language the Doe Court used in
discussing the Restatement (Second) of Agency §228.29 Were the Court to
augment that language and add Officer Giddings’ “specific conduct,” as suggested
by Plaintiff, the result would be an importation of the summary judgment
inferences in Doe into the trial setting. This would unnecessarily interpose the
Court into the jury’s determination of scope of employment, undermining the

jury’s role as “a cross-section of the public especially adapted to judge the actions

 

28 See DEL. SUPER. P.J.I. CIV. § 18.5 (2000) (revised Aug. 15, 2006) (“Agent Tending to Personal
Affairs”). As an aside, “[A] party does not have a right to a particular instruction in a particular
form.” Corbitt v. Tatagari, 804 A.2d 1057, 1062 (Del. 2002) (citing Haas v. Urzited Techs.
Corp., 450 A.2d 1173, 1179 (Del. 1982); Chavin v. Cope, 243 A.2d 694 (Del. 1968)).

29 see Doe v. sza¢@, 76 A.3d 774, 777 (Del. 2013).
11

3330

of people in the light of what is reasonable Therefore, the implemented jury

instruction on course and scope of employment was “reasonably informative and
not misleading;” it did not undermine the jury’s ability to intelligently reach a

verdict in this case.31

17. Second, Plaintiffs Motion is further misguided because many of his
proffered jury instructions failed to comply with Delaware law and called for the
Court to comment on the evidence.22 A prime example is Plaintiff’ s proffered jury
instruction regarding Colonel MacLeish and the testimony concerning the
foreseeability of sexual misconduct by officers during arrest. Plaintiff’s proposed

instruction read:

ln this case, Colonel MacLeish, the former head of
the Delaware State Police in 2009, testified If you find
that Colonel MacLeish was aware of a general problem
within law enforcement that some police officers had
sexually assaulted people in their custody then it was not
completely unforeseeable to the State that such wrongful
conduct could occur.

The general problem of sexual abuse by arresting
police officers does not have to have involved the State
Police or any police in Delaware-it is enough if on a

 

30 Id. at 776 (quoting Draper v. Olivere Paving & Constr. Co., 181 A.2d 565, 571 (Del. 1962)).

21 Probst v. State, 547 A.2d 114, 119 (Del. 1988) (quoting Baker v. Reid, 57 A.2d 103, 109 (Del.
1947)).

32 See, e.g., Plaintiff’s Motion for New Trial at Ex. B (Plaintiff’s proposed instruction on
“Knowledge of Col. MacLeish”); id. at Ex. E (Plaintiff s proposed instruction on “Complete

Unforseeability as an Affirmative Defense”). See also State’s Response to Plaintiff’ s Motion for
New Trial at 2 (Feb. 15, 2017).

12

nationwide basis there was a general problem. Also, the

problem did not have to involve a majority of police

officers, it is enough if it were a very small number of

officers.33
The above instruction is not a proper statement of the law. Hence, the Court stands
by its decision to deny Plaintiffs request to give this instruction

18. Third, at the pretrial conference and prayer conference, the Court

considered and rejected Plaintiffs argument that it was the State’s burden to prove
“lack of foreseeability.” The Court found that Draper v. Olivere Paving &
Cons¢modon Co.34 did not grand for the proposition that “1ook of foreseeability”

33 Nothing in Plaintiffs Motion changes

under § 228 was an affirmative defense.
this Court’s ruling that proof of this element fell on the Plaintiff to prove.

19. Finally, on the issue of consent, Plaintiff_-again_Simply restyles
prior arguments For the reasons stated above, Ms. Worthy and Officer Giddings’
versions of the incident conflicted in several material respects. Thus, the Court

declined to instruct the jury with Plaintiff` s proposed instruction and permitted

both parties to argue in their closing arguments their versions of the events based

 

33 Plaintiff’ s Motion for New Trial at Ex. B.
34 181 A.2d 565 (Dol. 1962).

3 3 Plaintiffs contention rested on a solitary line in Draper. See id. at 571 (“lf there is any proof
to that effect, it was encumbent [sic] upon Olivere as the moving party to produce it.” (citing
Ebersole v. Lowengrub, 180 A.2d 467 (Del. 1962)). This Court ruled that Plaintiff conflated this
statement, which in context referred to the burden of the moving party on summary judgment to
produce evidence showing that party was entitled to judgment as a matter of law.

13

on the evidence admitted at trial.36 Plaintiff"s Motion reiterates his disagreement
with this ruling, but the Motion does not put forth any new grounds for the Court to
grant a new trial on this basis.37

The Court finds that Plaintiffs post-trial Motions fail to state grounds under
Rule 59(a) for relief from the jury’s verdict in favor of the State. Therefore,
Plaintiff’s Motion for a New Trial and Motion to Set Aside Verdict are DENIED.

IT IS SO ORDERED.

 

/

,.-/ Judgo vivian/1 Modioillii

  

oc: Prothonotary
cc: All Counsel of Record (via e-filing)

 

36 Tr. at 34;11-26:2.

3 7 In many respects, Plaintiff`s Motions rehash arguments already considered in earlier rulings of
this Court. Under Rule 59(e), reargument of this Court’s decision or opinions requires the
moving party demonstrate “newly discovered evidence, a change of law, or manifest injustice.”
E.I. du Pont de Nemours & Co. v. Admiral lns. Co., 711 A.2d 45, 55 (Del. Super. 1995). See
DEL. SUPER. CT. CIV. R. 59(e). Rule 59(e) “places a heavy burden on a [party] seeking relief. . .
.” Kostyshyn v. Comm’rs ofBellefonte, 2007 WL 1241875, at *1 (Del. Super. Apr. 27, 2007).
Plaintiff” s arguments, in so far as they seek to reargue the same issues this Court already ruled
upon, fails to meet this elevated burden of proof for reconsideration of the Court’s earlier
decisions. See id. See also Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969).

'14

