Girden v. Sandals International
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Plaintiff-Appellant Lisa Girden appeals from an order of the United States District Court for the Southern District of New York (Whitman Knapp, /.), granting a motion for summary judgment in favor of Defendants-Appellees Sandals International, Sandals Group, Sandals Antigua, Andrew E. Holm, Ltd., and Dickenson Bay Hotel Management (collectively “Sandals Defendants”). For the reasons that follow, we affirm.
In August 1996, Plaintiff and her thenfiancé (now husband) were vacationing in the Caribbean and bought a one-day guest pass to the Sandals Antigua resort, which allowed them to take advantage of the resort’s amenities. Plaintiff arranged to take a sailing lesson from David Titus, an
A jury trial ended with a verdict in favor of the defendants. On Plaintiffs first appeal, we concluded that the district court’s jury instructions were erroneous and prejudiced Plaintiff and, accordingly, we vacated the judgment and remanded for a new trial. Girden v. Sandals, Int’l (“Girden I”), 262 F.3d 195 (2d Cir. 2001). In dicta, we noted certain principles of New York law on vicarious liability, and, “[taking] no position on how these principles should be applied” to the case, directed that “the district court should take these principles into account in resolving the matter” if the Sandals Defendants contested vicarious liability on remand. Id. at 205-206.
After the case was remanded, the Sandals Defendants moved for summary judgment on the ground that, because any sexual assault by Titus against Plaintiff was beyond the scope of Mr. Titus’s employment, the Sandals Defendants could not be held vicariously hable for such conduct. Following additional discovery, briefing, and oral argument, the district court granted the Sandals Defendants’ motion and dismissed Plaintiffs complaint in its entirety. Applying Connecticut law,
As an initial matter, we reject Plaintiffs argument, made for the first time on appeal, that, because we remanded the case “for a new trial,” the district court violated our mandate by disposing of the matter on a motion for summary judgment. Because this issue was not raised below, of course, we need not consider it here. Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). But in any event, Plaintiffs argument fails on the merits. See Wakefield v. Northern Telecom, Inc., 813 F.2d 535, 540 (2d Cir. 1987), abrogation on other grounds recognized by Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997) (noting that, although the case was remanded for a new trial, “if further discovery proceedings on remand had revealed an undisputed fact conclusively precluding the entry of judgment in [the plaintiffs] favor,” summary judgment could have been entered).
On the issue of vicarious liability, Connecticut courts “have long adhered to the principle that in order to hold an employer hable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer’s business.” A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69, 73 (1990).
Applying this distinction — between conducting of the master’s business (albeit in an unauthorized or misguided way) and abandoning the master’s business — Connecticut courts have often refused to hold an employer vicariously liable for sexual misconduct by its employees, finding that the sexual assault occurs only after the servant has abandoned the master’s business. See, e.g., Reynolds v. Zizka, 1998 WL 123047, at *3 (Conn.Super.Mar.5, 1998); Coupe v. East Hartford Bd. of Educ., 1998 WL 83230, at *2-3 (Conn.Super.Feb.17, 1998); Maule v. Sullivan, 1993 WL 307579, at *1 (Conn.Super.Aug.9, 1993); Gutierrez v. Thorne, 13 Conn.App. 493, 498-99 537 A.2d 527, 530-31 (Conn. App. 1988). In Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (Conn.App. 1997), however, a vicarious liability claim based on an employee’s sexual misconduct survived summary judgment. In Mullen, the employee, while providing the plaintiff “with a combination of pastoral, spiritual and psychological counseling,” began a sexual relationship with her. Id. at 761-62, 700 A.2d at 1379. The appellate court refused to grant summary judgment to the employer, reasoning that “a trier of fact could reasonably determine that [the employee’s] sexual relationship with the plaintiff was a misguided attempt at pastoral-psychological counseling, or even an unauthorized, unethical, tortious method of pastoral counseling, but not an abandonment of church business.” Id. at 765-66, 700 A.2d at 1380-81.
Plaintiff does not contend that the alleged sexual assault derived from an effort by Titus to conduct the business of his employers. Rather, Plaintiff claims only that Titus was on duty, and was assigned to give Plaintiff a sailing lesson, at the time that he “deviated from the proper discharge of his duties” and sexually assaulted her. The district court properly concluded that this was insufficient to raise a genuine issue of material fact with respect to the Sandals Defendants’ vicarious liability, and therefore did not err in granting the Sandals Defendants’ motion for summary judgment on those claims.
The district court also dismissed Plaintiffs claims against the Sandals Defendants for liability based on direct negligence. The court held that Plaintiff did not raise a triable issue of fact as to whether the Sandals Defendants failed to exercise reasonable care in hiring, training, and supervising Titus.
We have considered all of Appellant’s claims and find them meritless. We therefore AFFIRM the judgment of the district court.
. Although our first opinion spoke of New York law, the district court on remand proceeded on the assumption, and the parties agreed at oral argument in this appeal, that Connecticut law applies. We therefore apply Connecticut law, and express no view on which law — New York, Connecticut, or Antiguan — would apply were there no such agreement.
. Although the Sandals Defendants’ motion for summary judgment addressed only the
Reference
- Full Case Name
- Lisa J. GIRDEN v. SANDALS INTERNATIONAL, David Titus, Sandals Group, Sandals Antigua, Andrew E. Holm, Ltd. and Dickenson Bay Hotel Management
- Cited By
- 2 cases
- Status
- Published