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GIRDEN v. SANDALS INTERNATIONAL

June 21, 2002

LISA GIRDEN, PLAINTIFF,
V.
SANDALS INTERNATIONAL, LTD., SANDALS GROUP, SANDALS ANTIGUA, ANDREW HOLM, LTD., DICKENSON BAY HOTEL MANAGEMENT AND DAVID TITUS DEFENDANTS.



The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge.

OPINION & ORDER

The above-captioned case is currently on remand from the Second Circuit based on an improper jury instruction. In the Second Circuit's opinion remanding this case it suggests that we revisit the question of whether the employer defendants can be held liable to plaintiff for defendant Titus' actions as a matter of law. Girden v. Sandals Int'l (2d Cir. 2001) 262 F.3d 195, 205. As suggested by that opinion, currently before us is the employer defendants' motion for summary judgement. On May 28, 2002, we heard oral argument from the parties. For the reasons that follow we grant the employer defendants' motion and dismiss plaintiff's claims in the entirety as they pertain to those defendants.

BACKGROUND

We assume knowledge of this case's factual background and procedural history.

Furthermore, for the purpose of this motion, we adopt the facts as stated in the Second Circuit's opinion, Girden v. Sandals Int'l (2d Cir. 2001) 262 F.3d 195.

Briefly, plaintiff Lisa Girden ("plaintiff") brought this suit against Sandals Resorts International, Ltd. ("Sandals Resorts"); Sandals Group; Andrew Holm, Ltd.("Andrew Holm"); Dickenson Bay Hotel Management ("Dickenson Bay"); Sandals Antigua (collectively "defendants") and David Titus ("Titus"). According to defendants, Sandals Group and Sandals Antigua are improperly named since "Sandals Group" does not exist and "Sandals Antigua" is Dickenson Bay's tradename.

Plaintiff's claims stem from an incident which took place on August 28, 1996 when she was a guest for the day at Sandals Antigua, a resort in the Caribbean. Titus, a then member of the water staff at Sandals Antigua, allegedly sexually assaulted plaintiff when he took her from the beach on the property of Sandals Antigua out into the ocean on a sunfish, a nine-foot long sailboat, offering to give her a sailing lesson. Titus has never appeared in this action. For the purpose of this motion the defendants do not contest the facts as they pertain to the assault.

DISCUSSION

Since our jurisdiction is based on diversity, we turn to New York choice of law principles to determine the governing law. New York looks to the potential jurisdictions and applies the law of the one with the greatest interest, usually either the situs of the tort or the parties' domicile. Dorsey v. Yantambwe (2000) 276 N.Y.S.2d 566 [715 N.Y.S.2d 566], 569. Where conflicting laws are at issue, the law of the jurisdiction where the tort occurred generally applies. Id. Even though the incident occurred in Antigua and defendant Dickenson Bay is domiciled there, plaintiff argues that Connecticut law, that of her state of domicile, should apply. For the purpose of this motion we assume that Connecticut law applies.

Plaintiff's claims against defendant are based on both respondeat superior and negligence theories. Because we grant defendants' motion and dismiss plaintiff's claims in the entirety we need not address their argument that the defendants other than Dickenson Bay did not employ Titus and therefore could not be liable under either theory.

I. Respondeat Superior

According to Connecticut law, in order for an employer to be vicariously liable for the intentional tort of its employee, the tort must have been within the scope of his or her employment. Glucksman v. Walters (Conn.App.Ct. 1995) 38 Conn. App. 140, 144.

"Scope of employment" does not mean "during the period of his employment" or while the employee is "on-duty." Id. The vital inquiry is "whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business. . . . Unless [the employee] was actuated at least in part by a purpose to serve the principal, the principal is not liable." Id. (citing A-G Foods, Inc. v. Pepperidge Farm, Inc. (Conn. 1990) 216 Conn. 200).

Connecticut courts have held, as a matter of law, "when the tortfeasor-employee's activity with the alleged victim became sexual, the employee abandoned and ceased to further the employer's business." Reynolds v. Zizka (Conn.Super.Ct. March 5, 199) 1998 WL 123047 at *3 (citing Gutierrez v. Thorne (Conn.App.Ct. 1988) 13 Conn. App. 493). Although the issue of whether or not an act is within the scope of one's employment can be a question of fact for a jury to decide, Connecticut courts have found that where the acts of the employee are so clearly outside of the scope of his authority, the question is one of law. See Gutierrez 13 Conn. App. at 499. In Gutierrez the court found that sexual assault ...


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