DES MOINES, Iowa (Legal Newsline) - The City of Muscatine, Iowa isn’t liable for the actions of a police officer who gave the intoxicated passenger of a vehicle a ride to the hotel where she was staying and raped her, all while still on duty.
Rejecting the “aided by agency” theory under which the police department might be liable for the illegal actions of its employees, the Iowa Supreme Court ruled the sexual assault fell completely outside the scope of the officer’s employment.
Shari Martin was riding in a car driven by David Faust when they were pulled over and Faust was arrested for driving while intoxicated. Following Muscatine Police Department policy, officer Thomas Tovar offered Martin a ride to the hotel where she and Faust were staying.
Faust returned to the hotel later and found Martin naked on the bed, with the dim memory of being assaulted by a police officer. Tovar was later convicted of assault based partly on genetic evidence found on the scene. He had taken several steps to hide his activity from the police department, including turning off his body microphone and lying to the dispatcher about where he was.
Tovar claimed the sex was consensual during his criminal trial but was sentenced to up to 10 years in prison in 2016. He was paroled in 2020.
Martin sued the City of Muscatine under the doctrine of vicarious liability and aided by agency but the trial judge dismissed the case, ruling Tovar was acting outside the scope of employment. The Iowa Supreme Court upheld the dismissal in a June 9 decision.
Citing the Restatement (Third) of Torts, the court said an employer isn’t liable for the actions of its agents when they represent “an independent course of conduct not intended by the employee to serve any purpose of the employer.”
The court rejected the plaintiff’s argument the assault was foreseeable, especially since Tovar had been accused of misconduct before, including assaulting a woman in the basement of the police station. The only problem was the woman didn’t file her complaint until after Tovar was arrested for assaulting Martin, the court said.
“Tovar’s rape of Martin was, in our view, an act so unusual or startling under the circumstances, and such a departure from the officer’s duty simply to provide an intoxicated passenger a courtesy ride home, that it falls outside the scope of his employment,” the court concluded. “The sexual assault furthered only Tovar’s deviant, felonious interest, and furthered no purpose or aim of the City.”
The aided-by-agency theory represents an exception to the scope of employment doctrine, the court said. But Iowa courts haven’t embraced it, the theory was eliminated from the Restatement (Third) of Torts and Iowa law restricts what government agencies can be held liable for.
Justice Dana Oxley concurred, with the caveat that the decision should not be seen as ruling out all lawsuits over police misconduct. In this case Martin couldn’t recall the assault, but in another case the victim might claim an officer offered to trade a release from arrest for sexual favors. If the victim is under the control of an officer performing their official duties, the justice wrote, a jury may have to decide if their actions were within the scope of employment.