Costos v. Coconut Island Corp.

Opinion

USCA1 Opinion

    

                    United States Court of Appeals

                        For the First Circuit

    

                         ____________________

    

    No.  97-2076

                       PATRICIA O'BOYLE COSTOS,

    

                         Plaintiff, Appellee,

    

                                  v.

    

            COCONUT ISLAND CORP., D/B/A THE BERNARD HOUSE

                      AND NEAL L. WEINSTEIN,

                                   

                       Defendants, Appellants.


____________________

    

             APPEAL FROM THE UNITED STATES DISTRICT COURT

    

                    FOR THE DISTRICT OF MAINE

                                

            [Hon. Gene Carter, U.S. District Judge]

                                  ____________________

    

                                Before

                                   

                        Torruella, Chief Judge    ,

    

                  Boudin and Lynch, Circuit Judges.

                         ____________________


Scott D. Gardner, with whom Gardner, Gardner & Murphywas on brief, for appellants.

        Raymond C. Hurley, with whom Hurley & Mina was on

    brief, for appellee.

    

                         ____________________

    

                          March 2, 1998

                                   ____________________

            LYNCH, Circuit Judge.  A jury found the defendants

    vicariously liable for the act -- rape -- committed by their

    employee Charles Bonney.  Bonney, the manager of the Maine inn

    owned by defendants, let himself into the room of the

    plaintiff, a guest at the inn, in the early morning hours and

    raped her.  The jury awarded plaintiff $50,000 on that count,

    and $5,000 on a negligence count.

        Defendants say the issue of vicarious liability never

    should have gone to the jury.  They argue that under the

    Restatement (Second) of Agency  219(2)(d), adopted by Maine

    law, vicarious liability may not be imposed for acts committed

    by the employee outside the scope of employment unless the

    employee has acted with apparent authority or deceit, and that

    the evidence does not support such a finding.  Under present

    Maine law, and on the evidence of record, the issue was, we

    believe, properly submitted to the jury.  The Maine courts may

    decide, as have other courts, that some limiting principles

    should evolve to prevent  219(2)(d) from being used to erode

    the distinction between acts committed within the scope of

    employment and those outside the scope.  But this case does not

    present the occasion to do so.  We affirm.

                         I.

        Because the defendants appeal the denial of their

    motion for judgment as a matter of law, we review the record in

    the light most favorable to the non-moving party.  See Ansin v.

    River Oaks Furniture, Inc., 105 F.3d 745, 753 (1st Cir. 1997).

        In the early morning of August 14, 1993, Charles

    Bonney raped Patricia O'Boyle Costos in her room at the Bernard

    House in Old Orchard Beach, Maine.  The Bernard House was a

    small seasonal inn owned by defendant Neal Weinstein and

    managed through the Coconut Island Corporation.  The Coconut

    Island Corporation was wholly owned by Weinstein in 1993.

        The day before, Costos and her friend Lynn Tierney

    travelled to Maine for the weekend.  Tierney knew Charles

    Bonney, knew that he worked at the inn, and suggested that she

    and Costos spend the weekend at the Bernard House.  When they

    arrived at the inn, Costos and Tierney paid Bonney for two

    nights' accommodation.  Bonney told Costos that he was the

    manager and future owner of the Bernard House.

        Bonney escorted the women to Room 23 on the third

    floor.  He carried a plastic bag full of keys with him, and

    rummaged through it looking for the room key.  Bonney

    eventually gave Tierney and Costos a key from his pocket,

    telling them that it was a master key and that they should not

    lose it.

        That evening Costos, Tierney, Bonney, and two of

    Bonney's male friends socialized together at the Bernard House

    and later at a local club.  Costos and Tierney eventually

    returned to their room at the inn, Costos to go to bed, and

    Tierney to keep her company back to the room.

        Costos went to bed, but Tierney decided to go out

    again.  Tierney left, taking the room key with her.  Costos

    remembered that Tierney locked the door to their room.  

        Costos fell asleep.  She awoke to find Bonney in the

    bed, having intercourse with her.  She threw Bonney out of the

    bed, punching and kicking him.  Bonney stood over her,

    laughing, and then left the room.

        Bonney has fled the jurisdiction and remains at

    large.  He is wanted on a federal fugitive warrant.

                                 II.

        Costos sued the defendants in federal court, alleging

    the defendants were negligent and were vicariously liable for

    Bonney's torts.  A jury trial began on August 7, 1997.  At the

    close of the plaintiff's case, the defendants moved for a

    directed verdict, inter alia, on the vicarious liability count. 

    That motion was denied.  This appeal is from the denial of that

    motion and the denial of the renewal of that motion.

                                 III.

        The grant or denial of a motion for judgment under

    Fed. R. Civ. P. 50(a) is reviewed de novo, under the same

    standards applied by the district court.  See Ansin, 105 F.3d

    at 753.  We will "reverse the denial of such a motion only if

    reasonable persons could not have reached the conclusion that

    the jury embraced." Id. (citations and internal quotation marks

    omitted).

        The district court, sitting in diversity, applied the

    substantive law of Maine.  See Erie R.R. Co. v. Tompkins, 304

    U.S. 64, 78 (1938); Jordan v. Hawker Dayton Corp., 62 F.3d 29,

    32 (1st Cir. 1995).  The plaintiff's vicarious liability claim

    was based upon  219(2)(d) of the Restatement (Second) of

    Agency, which has been adopted as the law of Maine.  See McLainv. Training & Dev. Corp., 572 A.2d 494 (Me. 1990) (holding a

    jury could find employer vicariously liable under  219(2)(d)

    for the intentional torts of its employee).  That section

    states:

            Section 219. When Master is liable for Torts

                    of His Servants

                    . . .

                    (2) A master is not subject to liability for

                    the torts of his servants acting outside the

                    scope of their employment, unless:

                    . . . 

                    (d)  the servant purported to act or speak on

                    behalf of the principal and there was reliance

                    upon apparent authority, or he was aided in

                    accomplishing the tort by the existence of the

                    agency relation.

                    

                Maine has also adopted the Restatement's definition

    of agency: 

            Agency is the fiduciary relationship which

                    results from the manifestation of consent by

                    one person to another that the other shall act

                    on his behalf and subject to his control, and

                    consent by the other to so act. . . . A

                    servant is an agent employed by a master to

                    perform service in his affairs whose physical

                    conduct in the performance of the service is

                    controlled or is subject to the right to

                    control by the master.

                    

            Bonk v. McPherson, 605 A.2d 74, 78 (Me. 1992) (quoting

    Restatement (Second) of Agency  1,2 (1958)).  It is plain

    that there was an agency relationship between Bonney and

    defendants, and that Bonney, as manager of the inn, was the

    defendants' "servant" under this definition.

        Defendants argue that they cannot be liable under 

    219(2)(d) because it requires the use of "apparent authority"

    or deceit by the servant to facilitate the tort.  Defendants

    argue that there is no evidence that Costos believed that

    Bonney was acting on his employer's behalf when he assaulted

    her, or that the use of apparent authority in any way aided

    Bonney in accomplishing the tort.

        Defendants attempt to construe the final clause of 

    219(2)(d), "or he was aided in accomplishing the tort by the

    existence of the agency relation," as merely a reiteration of

    the prior language in subpart (d) on apparent authority.  If

    the phrase was meant to be independent of an apparent authority

    analysis, defendants argue, it would have been put into a

    separate subsection.  We conclude that under Maine law, as

    articulated in McLain, a master may be liable for the torts of

    his or her servants who are acting outside the scope of their

    employment when they are aided in accomplishing the tort by the

    existence of the agency relation.

        In McLain, a client of a Jobs Corps program sued the

    agency operating the program after a counselor directed him to

    perform painful and humiliating "tests."  The counselor said

    those "tests" would help the client gain admission to the U.S.

    Marine Corps.  The client was rejected by the Marines, and sued

    the agency for the injuries he suffered as a result of the

    counselor's intentional torts.  The Supreme Judicial Court of

    Maine held that a jury could find the agency vicariously liable

    for the client's injuries under  219(2)(d), because "the jury

    could rationally find from the evidence that [the counselor's]

    employment made possible the tortious assault and battery he

    imposed upon McLain, rendering [the agency] liable for all of

    McLain's injuries at [the counselor's] hand, on the alternative

    theory of vicarious liability."  572 A.2d at 498.  The court

    said the jury could find either that the tort was within the

    scope of employment or that it was outside the scope but within

    the  219(2)(d) exception.

        McLain does not say that the use of apparent

    authority is required for vicarious liability under 

    219(2)(d).  See also Grover v. Minette-Mills, Inc., 638 A.2d

    712, 717 (Me. 1994) (citing McLain for the proposition that

    vicarious liability is proper where the employment relationship

    "made possible" the commission of the tort).  Instead, the

    Maine courts have thus far followed the plain meaning of 

    219(2)(d).  See United States v. Rivera, 131 F.3d 222, 224 (1st

    Cir. 1997) (when plain meaning is clear, the sole function of

    the court is to enforce it).  Indeed, defendants' reading would

    violate another rule of statutory construction because the

    broad reading proffered by defendants would render the second

    clause of subpart (d) superfluous.  See Labbe v. Nissen Corp.,

    404 A.2d 564, 567 (Me. 1979) ("Nothing in a statute may be

    treated as surplusage if a reasonable construction supplying

    meaning and force is otherwise possible.").

        Defendants argue that this reading of  219(2)(d)

    will result in a vast expansion of employer liability in Maine

    and will render every intentional tort committed outside the

    scope of employment as equivalent to those committed within the

    scope of employment.  Defendants ask us to interpret 

    219(2)(d) in light of the evolving rules for vicarious

    liability for sexual harassment in Title VII cases.  We need

    not speculate whether Maine courts would follow such an analogy

    or otherwise narrowly gloss the Restatement because, even if

    narrowing limitations were to be assumed arguendo, the appeal

    would still fail.

        In general terms, defendant's argument as to the

    scope of  219(2) finds some support in case law elsewhere.  As

    noted by Judge MacKinnon, concurring in a Title VII case,

    Barnes v. Costle, 561 F.2d 983, 996 (D.C. Cir. 1977),

    "Concerning the second part of the [ 219(2)(d)] exception, at

    first reading it seems to argue too much.  In every case where

    vicarious liability is at issue, the agent will have been aided

    in some way in committing the tort by the position that he

    holds."  The Court of Appeals for the D.C. Circuit, citing the

    Barnes concurrence, recently sounded the same cautionary note. 

    "In a sense, a supervisor is always 'aided in accomplishing the

    tort by the existence of the agency relation' because his

    responsibilities provide proximity to and contact with the

    victim."  Gary v. Long, 59 F.3d 1391, 1397 (D.C. Cir. 1995). 

    In attempting to find a narrowing principle, that court

    referred to the commentary of the Restatement: that an employer

    is liable only if the tort "was accomplished by an

    instrumentality, or through conduct associated with the agency

    status."  Id. (citing Restatement (Second) of Agency  219 cmt.

  e (1958)).  

        Even viewing this case through the narrower focus of

    the commentary on Restatement  219, which the Gary court found

    helpful, defendants are well within the scope of  219(2)(d)

    liability.  By virtue of his agency relationship with the

    defendants, as manager of the inn, Bonney was entrusted with

    the keys to the rooms, including Costos' room, at the Bernard

    House.  Because he was the manager of the inn, Bonney knew

    exactly where to find Costos.  The jury could find that Bonney

    had responsibilities to be at the inn or to have others there

    late at night.  In short, because he was the defendants' agent,

    Bonney knew that Costos was staying at the Bernard House, he

    was able to find Costos' room late at night, he had the key to

    the room and used the key to unlock the door, slip into bed

    beside her as she slept, and rape her.

                               IV.

                                        We hold that the district court correctly denied the

    defendants' motion for judgment as a matter of law.  The record

    shows sufficient evidence to hold the defendants vicariously

    liable under  219(2)(d) for Bonney's acts.

        The judgment of the district court is affirmed. 

    Costs are awarded to plaintiff.