IN THE SUPREME COURT OF IOWA
No. 21–1072
Submitted February 21, 2023—Filed June 9, 2023
SHARI L. MARTIN,
Appellant,
vs.
THOMAS A. TOVAR, Individually and In His Official Capacity, and CITY OF MUSCATINE, IOWA,
Appellees.
Appeal from the Iowa District Court for Muscatine County, Stuart P. Wer-
ling, Judge.
The plaintiff appeals the district court’s grant of summary judgment in
favor of the City of Muscatine on claims seeking to hold the City vicariously liable
for a former police officer’s sexual assault. AFFIRMED.
McDermott, J., delivered the opinion of the court, in which Christensen,
C.J., and Mansfield, McDonald, and May, JJ., joined, and in which Oxley, J.,
joined as to part II, and concurred in judgment as to part I. Oxley, J., filed a
special concurrence. Waterman, J., took no part in the consideration or decision
of the case.
M. Leanne Tyler (argued) of Tyler & Associates, PC, Bettendorf, for appel-
lant.
Brandon W. Lobberecht (argued) and Martha L. Shaff of Betty, Neuman &
McMahon, P.L.C., Davenport, for appellees. 2
McDERMOTT, Justice.
While on patrol at around 2:00 a.m., an officer with the Muscatine Police
Department initiated a traffic stop of a vehicle driven by David Faust. Another
Muscatine police officer, Thomas Tovar, arrived separately and assisted at the
scene. Faust was arrested on a charge of operating while intoxicated and trans-
ported to the police station.
Shari Martin was a passenger in Faust’s vehicle. The officers observed that
Martin was intoxicated, too, and thus unable to drive Faust’s vehicle. In such a
situation, it was the police department’s common practice for an officer to give
passengers who weren’t under arrest a courtesy ride home. Adhering to that
practice, Tovar drove Martin to a nearby hotel where she and Faust were staying
that night. At the hotel, Tovar followed Martin to her room and raped her.
Tovar left the hotel after the sexual assault to respond to a domestic dis-
turbance call elsewhere. After Faust was released from jail several hours later,
he returned to the hotel room to find Martin naked and asleep on the bed. When
Faust awakened her, Martin couldn’t recall clear details of what had happened
in the intervening hours, but had a fragmented memory of someone who might
have been a police officer on top of her in the hotel room.
Faust called the Muscatine Police Department to report that Martin might
have been sexually assaulted. The police lieutenant who answered Faust’s call
said he would come to the hotel to meet with them. An investigation, soon to be
led by the Iowa Department of Investigation, had thus begun. Forensic analysis
of the hotel room’s bedding and Martin’s clothing revealed Tovar’s seminal fluid
on both a bedsheet and Martin’s jeans. 3
Investigators concluded that Tovar had attempted to conceal the sexual
assault from other officers by turning off his body microphone, lying to the dis-
patcher that he was “cleared” from the hotel and available for another call while
still in Martin’s room, and responding to the domestic disturbance call on his
police radio from the hotel room. When he drove to the scene of the domestic
disturbance, he didn’t activate his siren, emergency lights, or dashboard camera,
all to avoid creating a recording that would show he was still at the hotel when
he received the call. He lied to other officers afterward about where he’d been
and what he’d been doing.
Tovar was criminally charged. A jury convicted him of third-degree sexual
abuse of an incapacitated person under Iowa Code § 709.4(4) (2013). The Iowa
Court of Appeals affirmed the conviction on appeal.
Martin sued Tovar and the City of Muscatine for civil damages, pleading
causes of action for sexual assault, battery, intentional infliction of emotional
distress, false imprisonment, and invasion of privacy. All the claims against the
City were based on the doctrine of vicarious liability. The City moved for sum-
mary judgment on the claims against it. In granting the City’s motion, the district
court determined that Martin failed to prove that Tovar’s sexual assault was
within the scope of his employment and, thus, held that the City couldn’t be held
vicariously liable for the act. The district court also rejected Martin’s request to
extend liability to the City based on a theory of aided by agency. Martin appeals
the district court’s grant of summary judgment on these two issues. 4
I. Vicarious Liability and Tovar’s Scope of Employment.
The doctrine of vicarious liability imposes liability against an employer for
an employee’s tortious conduct committed within the scope of employment. Go-
dar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999). To come within the scope of
employment, an employee’s actions “must be of the same general nature as that
authorized or incidental to the conduct authorized.” Id. (quoting Sandman v. Ha-
gan, 154 N.W.2d 113, 117 (Iowa 1967)). We will find an employee’s conduct out-
side the scope of employment if it substantially diverges from conduct that the
employer actually authorizes. Id. at 705–06. “Said another way, ‘a deviation from
the employer’s business or interest to pursue the employee’s own business or
interest must be substantial in nature to relieve the employer from liability.’ ” Id.
at 706 (emphasis omitted) (quoting Sandman, 154 N.W.2d at 118).
Whether an employee’s act is within the scope of employment is ordinarily
a jury question. Id. But when the undisputed material facts show that the em-
ployee’s tortious conduct was not within the scope of employment, the issue is
properly decided by the court on summary judgment. Id.
In Godar v. Edwards, a former student sued a school district and the dis-
trict’s curriculum director for claims based on the director’s alleged sexual abuse
of the student. Id. at 703–04. We affirmed dismissal of the student’s vicarious
liability claims against the school district, reasoning that although the director
“had the opportunity to become acquainted with [the student] by virtue of his
duties as curriculum director and programs he developed for children with spe- 5
cial needs, we believe it cannot be said that the actions were committed in fur-
therance of his duties as curriculum director or the objectives of any school dis-
trict programs.” Id. at 706–07.
In analyzing whether an employee’s conduct is within the scope of employ-
ment, we have in the past looked to guidance from the Restatement of the Law
of Agency—“agency” referring to the relationship between principals (such as
employers) and agents (such as employees). Godar, 588 N.W.2d at 706. In Godar,
for instance, we considered the scope-of-employment factors listed in the Re-
statement (Second) of Agency. Godar, 588 N.W.2d at 706 (citing Restatement
(Second) of Agency § 229(2), at 506 (Am. L. Inst. (1958) [hereinafter Restatement
(Second)]). But an updated edition—the Restatement (Third) of Agency—was re-
leased in 2006. Restatement (Third) of Agency (Am. L. Inst. (2006)) [hereinafter
Restatement (Third)]. When a new version of a Restatement appears, we generally
consider and cite it in our decisions. Youngblut v. Youngblut, 945 N.W.2d 25, 32–
33 (Iowa 2020). We have cited the Restatement (Third) of Agency in prior cases.
See, e.g., Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d
793, 803 (Iowa 2019).
In evaluating scope-of-employment questions, the Restatement (Third) in-
structs that “[a]n employee’s act is not within the scope of employment when it
occurs within an independent course of conduct not intended by the employee
to serve any purpose of the employer.” Restatement (Third) § 7.07(2), at 198. An
“independent course of conduct,” as that phrase is used, “represents a departure
from, not an escalation of, conduct involved in performing assigned work or other
conduct that an employer permits or controls.” Id. § 707 cmt. b., at 201. 6
Applying these principles to the facts of this case, Tovar’s rape of Martin
was an egregious departure from the authorized or assigned duties of his em-
ployment as a police officer. His criminal act was not intended to further any
purpose or interest of the City; indeed, his crime was antithetical to it. Tovar
knew that the act wasn’t authorized or condoned, which is why he took steps to
try to prevent the City from finding out about it. Tovar admitted, for instance,
that he turned off the camera in his police car and turned off his body micro-
phone, testifying that “I didn’t want the police department to know what I was
doing that I shouldn’t have been.”
Martin argues that we should find the sexual assault was within Tovar’s
scope of employment because it was foreseeable that he would misuse the in-
strumentality furnished by the City (namely, police authority) to take advantage
of her. See Doe v. Morris, Civil Action No. 11–1532, 2013 WL 3933928, at *6 (E.D.
La. July 30, 2013); Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 463–64 (Ind.
2018). In Godar, as Martin points out, we acknowledged that wrongful activities
can be foreseeable. 588 N.W.2d at 708. But much like sexual abuse claims
against the school district, we find no evidence that Tovar’s sexual assault was
the kind of act that “was expected, foreseeable, or sanctioned” by the City. Id. at
707.
Martin also flags a variety of performance problems that she argues the
City ignored about Tovar’s past conduct. She offers evidence of Tovar’s poor per-
formance evaluations, including evidence that at one point the police department
demoted him from a detective position for misconduct. Although the considera-
ble evidence that Martin presents convinces us that Tovar was a substandard 7
police officer, none offer clues that Tovar would sexually assault someone. His
performance problems as an officer do not, without more, signal to the City that
he was likely to perpetrate the appalling crime he committed.
Martin offers other evidence about Tovar that she argues creates foresee-
ability for the sexual assault, including a domestic abuse complaint from Tovar’s
live-in girlfriend (a complaint that the woman later dropped), a consensual ro-
mantic relationship that Tovar had with an assistant county attorney with whom
he worked, and an affidavit from Martin’s boyfriend from 2016 stating that he
overheard a lieutenant with the Muscatine Police Department tell an investigator
that other police officers knew about “prior complaints” involving sexual miscon-
duct against Tovar. But on these items, too, we remain unconvinced that it was
foreseeable that Tovar was likely to rape a citizen while on duty.
The only evidence Martin presents regarding sexual assault is an accusa-
tion from a woman who claimed that Tovar (several years before his rape of Mar-
tin) sexually assaulted her in the basement of the police station, while another
police officer likely saw or heard it happen. As disturbing as this evidence may
be, the problem with this argument is that the alleged victim of the assault didn’t
come forward until after Martin had already filed her civil lawsuit. Until that
point, the alleged victim conceded that she had told only her boyfriend. The City
thus could not have foreseen Tovar’s sexual assault involving Martin based on
information it didn’t possess until years after Martin’s assault.
Courts must tread carefully when considering foreseeability in a
scope-of-employment analysis. The Restatement (Third) describes the mistaken
tendency “to conflate the foreseeable likelihood, from an employer’s standpoint, 8
that mishaps and slippage will occur . . . with the possibility that the work may
lead to or somehow provide the occasion for intentional misconduct that is dis-
tinct from an employee’s actions in performing assigned work.” Restatement
(Third) § 7.07, cmt. b., at 202. Of course, distinct intentional misconduct “is in-
deed always ‘foreseeable,’ given human frailty, but its occurrence is not a risk
that an employer can effectively control and its occurrence may be related caus-
ally to employment no more than to other relationships and circumstances in an
errant employee’s life more generally.” Id. at 202–03. In this case, we find no
basis to impose vicarious liability against the City based on foreseeability.
The Restatement (Third) summarizes the rationale for rejecting vicarious
liability claims against an employer in this situation:
When an employee commits a tort with the sole intention of further- ing the employee’s own purposes, and not any purpose of the em- ployer, it is neither fair nor true-to-life to characterize the employee’s action as that of a representative of the employer. The employee’s intention severs the basis for treating the employee’s act as that of the employer in the employee’s interaction with the third party.
Id. at 201; see also Godar, 588 N.W.2d at 707.
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 sexual assault furthered only Tovar’s deviant, fe-
lonious interest, and furthered no purpose or aim of the City. We thus find no
error in the district court’s determination that Tovar’s sexual assault fell outside
his scope of employment. 9
II. Liability Based on Martin’s Proposed Aided-by-Agency Theory.
Martin argues in the alternative that, even if we find that Tovar was acting
outside the scope of employment, vicarious liability should apply against the City
under an “aided by agency” theory. The aided-by-agency theory, which appears
in section 219 of the Restatement (Second), is an exception to the usual rule that
an employer may be vicariously liable only when an employee’s tort occurs within
the scope of employment. See Restatement (Second) § 219, at 481. Under this
exception, an employer may be vicariously liable for an employee’s tortious con-
duct if the employee “was aided in accomplishing the tort by the existence of the
agency relationship.” Id. Applying the theory here, Martin argues that the City
should be held vicariously liable because Tovar’s position as a police officer—
conferred on him by the City—facilitated the rape.
Martin concedes that Iowa has never actually recognized such a broad
aided-by-agency theory. But she points to our decision in Haskenhoff v. Home-
land Energy Solutions, LLC as a step already taken toward recognizing one. 897
N.W.2d 553 (2017). Haskenhoff involved a hostile-work-environment claim un-
der the Iowa Civil Rights Act, Iowa Code ch. 216. Haskenhoff, 897 N.W.2d at
571–72. Our analysis in Haskenfoff included a discussion of two United States
Supreme Court cases: Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
Haskenhoff, 897 N.W.2d at 566–67, 572–75. The Supreme Court in those two
cases, citing section 219(2)(d) of the Restatement (Second), applied a limited form
of aided-by-agency liability to supervisors’ acts against subordinates. Burlington,
524 U.S. at 758–59; Faragher, 524 U.S. at 793–809. We noted in Haskenhoff 10
that Iowa had previously adopted, consistent with Burlington and Faragher, vi-
carious liability for employers for hostile-work-environment claims under the
Iowa Civil Rights Act. Haskenhoff, 897 N.W.2d at 573.
But our narrow application of an aided-by-agency theory to hos-
tile-work-environment claims brought under the Iowa Civil Rights Act doesn’t
translate to the circumstances of this case. The Supreme Court in Burlington and
Faragher did not adopt the Restatement (Second)’s aided-by-agency theory
wholesale, but instead limited it to fit within Title VII of the Federal Civil Rights
Act. See Burlington, 524 U.S. at 754–55; Faragher, 524 U.S at 802. What’s more,
our focus in Haskenhoff wasn’t on the contours of the aided-by-agency theory.
See 897 N.W.2d at 570–75. The issue presented was whether an employer could
be held both directly liable (based on the employer’s own negligence) and vicari-
ously liable (based on misconduct by one of its supervisors) for a hostile-work-
environment claim under the Iowa Civil Rights Act. Id. Our conclusion to that
part of the opinion resolved only that narrow question: “We conclude the vicari-
ous liability theory was intended to supplement, not replace, the direct negli-
gence theory for supervisor harassment.” Id. at 574. We have never, in
Haskenhoff or any other case, extended the aided-by-agency theory to another
tort. Haskenhoff, in short, supplies almost no propulsive force in the direction of
adopting the broad aided-by-agency theory that Martin seeks.
Martin also cites several cases from around the country that have applied
an aided-by-agency theory to hold governmental bodies vicariously liable for in-
tentional torts committed by law enforcement officers. See, e.g., Peña v. Greffet,
110 F. Supp. 3d 1103, 1134 (D.N.M. 2015); Sherman v. State Dep’t of Pub. Safety, 11
190 A.3d 148, 179 (Del. 2018); Doe v. Forrest, 853 A.2d 48, 67 (Vt. 2004). The
courts in these cases unvaryingly expressed a public policy in favor of holding
governmental bodies liable for police misconduct based on the unique power that
law enforcement officers wield over citizens.
As a policy matter, our general assembly has spoken on the breadth of
municipality liability for the acts of its employees. See Iowa Code § 670.2(1)
(2015). The Iowa Municipal Tort Claims Act allows a municipality to be held liable
for torts committed by “its officers and employees, acting within the scope of their
employment or duties.” Id. (emphasis added). Where the policy-making body of
our government has limited vicarious liability of municipalities to torts commit-
ted while “acting within the scope of their employment or duties,” id., we are
hesitant to follow these courts’ leads under a broad reading of the aided-by-
agency theory.
Other courts have rejected attempts to apply a broad aided-by-agency the-
ory in cases not limited to law enforcement officers but alleging a wide variety of
claims. See, e.g., Miles v. Simmons Univ., 514 F. Supp. 3d 1070, 1077–79
(D. Minn. 2021) (predicting Minnesota law and noting that Minnesota courts
have only recognized aided-by-agency in the context of supervisor hos-
tile-work-environment claims); Pearce v. Werner Enters., Inc., 116 F. Supp. 3d
948, 955–57 (D. Neb. 2015) (predicting that Nebraska would not adopt the Re-
statement (Second)’s aided-by-agency exception to expand liability for torts com-
mitted outside the scope of employment); Mahar v. StoneWood Transp., 823 A.2d
540, 546 (Maine 2003); Zsigo v. Hurley Med. Ctr., 716 N.W.2d 220, 230–31 (Mich.
2006); Groob v. KeyBank, 843 N.E.2d 1170, 1179–80 (Ohio 2006). 12
We find the reasoning rejecting a broader aided-by-agency theory more
persuasive. One federal court (predicting that its own state court would find vi-
carious liability against an officer) described “the obvious defect in the aided-in-
agency theory” this way: “[I]t comes close to creating strict vicarious liability for
employers, and, despite purporting to be an exception, it nearly swallows the
general rule that respondeat superior does not attach to intentional torts.” Peña,
110 F. Supp. 3d at 1118. Expressing a similar view, the Michigan Supreme Court
warned that aided-by-agency liability “would expose employers to the ‘threat of
vicarious liability that knows no borders’ for acts committed by employees that
are clearly outside the scope of employment” and would pose “the danger of
adopting an exception that essentially has no parameters.” Zsigo, 716 N.W.2d at
229 (quoting Doe, 853 A.2d at 70 (Skoglund, J., dissenting)).
An argument can almost always be made at some level of generality that
an employee’s tortious conduct was “aided” by the employee’s job. As one court
illustrated the theory’s shortcomings, under the language of section 219(2)(d) of
the Restatement (Second):
[A] creative plaintiff’s lawyer could make a colorable argument for vicarious liability in almost every intentional tort case in which the tortfeasor happens to be gainfully employed. If a barista poisoned a patron’s coffee, the patron could sue the coffee shop under the the- ory that the barista was only able to commit the tort because he or she worked for the coffee shop. If a utility worker used his uniform and credentials to get invited into a woman’s home, and then pro- ceeded to sexually assault the woman, the utility worker’s agency relationship with the utility company could be said to have aided him in his sexual assault. If a drive-by shooting was committed us- ing a company car or a police department—or security company- issued gun, then the plaintiff could name the issuing employer. 13
Peña, 110 F. Supp. 3d at 1118. Indeed, the same argument that Martin makes
about the aided-by-agency theory would have applied equally in Godar, for in-
stance, in that the curriculum director could be said to have been “aided” in
abusing the student because of his employment with the school district.
Notably, the drafters of the Restatement (Third) completely abandoned the
section 219(2)(d) aided-by-agency theory when they updated the Restatement
(Second). Compare Restatement (Third) § 707, at 198, with Restatement (Second)
§ 219(2)(d), at 481. The Restatement (Third) approves vicarious liability only for
conduct committed by an agent acting within the scope of employment, or when
actions taken by an agent acting with apparent authority constitute a tort or
enable the agent to conceal its commission. See Restatement (Third) § 7.03, cmt.
b., at 198–203. (Martin, for her part, doesn’t argue that the City is liable under
any “apparent authority” theory.) Indeed, the Restatement (Second) itself now
includes a note that disavows the aided-by-agency theory, stating:
The second part of § 219(2)(d), regarding the “aided-by-agency” the- ory of vicarious liability, was not approved by the ALI [American Law Institute] membership and thus did not represent the position of the ALI. It has since been superseded by the Restatement of the Law Third, Agency; see Restatement of the Law Third, Agency § 7.08, Comment b . . . .
Restatement (Second) of Agency § 219, note, at 174 (Supp. 2023) (emphasis
omitted). Shunned even by the organization that originated the theory, the aided-
by-agency theory does not appear ripe for any expansion.
We decline to adopt Martin’s proposed aided-by-agency theory to impose
vicarious liability on the City. 14
III. Conclusion.
The district court correctly granted summary judgment in the City’s favor.
We thus affirm the judgment dismissing the claims against the City.
AFFIRMED.
Christensen, C.J., and Mansfield, McDonald, and May, JJ., join this opin-
ion, and Oxely, J., joins as to part II of this opinion, and concurs in judgment as
to part I of this opinion. Oxley, J., files an opinion concurring specially. Water-
man, J., takes no part. 15
#21–1072, Martin v. Tovar
OXLEY, Justice (concurring specially).
I agree with the majority’s rejection of the aided-by-agency theory of liabil-
ity, which is an exception to the general rule that an employer is only vicariously
liable for its employee’s torts committed within the scope of employment. As the
majority recognizes, by statute a city is only “subject to liability” for the torts “of
its officers and employees, acting within the scope of their employment or du-
ties.” Iowa Code § 670.2 (2015). Therefore, I join part II of the majority opinion.
I also agree with the court’s conclusion that, on the facts presented in the
summary judgment record, Shari Martin failed to establish that Thomas Tovar
was acting within the scope of his employment. The record establishes only that
Tovar’s position as a police officer gave him the opportunity to sexually assault
Martin when he gave her a ride to her hotel after David Faust (the driver of the
vehicle Martin was in when police stopped them) was arrested and she was too
intoxicated to drive herself, bringing this case within our holding in Godar v.
Edwards, 588 N.W.2d 701, 706–07 (Iowa 1999) (holding that having the oppor-
tunity to become acquainted with students as the curriculum director did not
bring the director’s conduct of sexually assaulting a student on and off school
premises within the scope of his employment).
I write separately to note what we are not deciding in this case. There are
no allegations that Tovar used his authority as a police officer to coerce Martin
into having sex with him as a quid pro quo for him not arresting or detaining
her. Whether those actions would be in furtherance of his duties as a police
officer likely falls to a jury to decide. See, e.g., L.B. v. United States, 515 P.3d 818, 16
825 (Mont. 2022) (“[I]f an on-duty police officer obtains consent by misusing of-
ficial authority, the wrongful act may be within the scope of employment if it
arose out of the employment and was at least partially motivated by an intent or
purpose to serve the interests of his employer.”); id. at 828 (“We conclude that
whether Officer Bullcoming acted outside the scope of his employment when he
used that employment as a vehicle to obtain L.B.’s consent to sexual intercourse
[by promising not to arrest her] must be answered by the trier of fact, with the
guidance of the principles set forth herein.”); see also Cox v. Evansville Police
Dep’t, 107 N.E.3d 453, 463 (Ind. 2018) (“[I]f an on-duty police officer commits a
sexual assault by misusing official authority, the sexual assault is within the
scope of employment if the employment context naturally or predictably gave rise
to that abuse of official authority.”); id. at 464 (finding a fact issue as to whether
an officer was acting in the scope of his employment where “[a]s part of his em-
ployment duties, Officer Rogers was alone with Beyer, handcuffed her, and took
her to the lock-up facility and to the hospital. During those times and as part of
his employment activities, Officer Rogers exercised physical control and official
authority over Beyer. That physical control continued as he again placed her in
handcuffs, loosened them, fondled her breast, took her from the hospital to a
dark wooded area, walked her to a bench, raped her, placed her in a crime scene
van, and took her home.”). At a minimum, that scenario is for another day.
With this understanding, I concur in the judgment of the court with re-
spect to part I.