The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge.
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.
We assume knowledge of this case's factual background and procedural
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
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.
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