P.J. v. CITY OF JERSEY CITY et al, No. 2:2021cv20222 - Document 30 (D.N.J. 2022)

Court Description: OPINION. Signed by Judge Evelyn Padin on 11/15/2022. (dam)

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P.J. v. CITY OF JERSEY CITY et al Doc. 30 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 1 of 17 PageID: 207 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY P.J., Plaintiff, Civil Action No. 21-20222 (EP) (CLW) v. OPINION CITY OF JERSEY CITY, et al. Defendants. PADIN, District Judge. Plaintiff P.J. alleges that in 1972, when he was 8 years old, Police Officer Jersey City . Plaintiff sued both the Officer, identified in the Amended Complaint only as be held vicariously liable criminal conduct. For the reasons below, the Court will DENY the motion. I. BACKGROUND1 In August 1973, Plaintiff was eight years old and lived in Jersey City. 2 Compl. ¶¶ 14-16. Plaintiff, who was with his friends, kicked a piece of cardboard into the street. Id. ¶¶ 17-19. The Officer, wearing a Jersey City police uniform and badge, carrying a gun and handcuffs, and driving a police car approached Plaintiff. Id. ¶¶ 17-19. Plaintiff, having seen the Officer patrolling the area before, recognized him as the Id. ¶ 16. 1 These facts come from D.E. 14, the , accepted as true for the purposes of this motion. 2 Plaintiff now resides in New York which, together with the prayer for relief above $75,000, appears to establish diversity jurisdiction. Amended Complaint ¶¶ 3, 10. Dockets.Justia.com Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 2 of 17 PageID: 208 The Officer told Plaintiff that Plaintiff had broken the law and threatened to arrest him in a nearby vacant lot the next day. Id. ¶ 21. Plaintiff, terrified that the Officer was telling the truth and hesitant to challenge authority, complied and showed up at the lot the next day. Id. ¶¶ 21-25. The Officer arrived in a Jersey City police car, again dressed in a Jersey City police uniform, wearing a badge, and carrying a gun and handcuffs. Id. ¶ 26. The Officer raped Plaintiff, causing physical and ongoing psychological injuries. Id. ¶¶ 28-29. Plaintiff filed his original complaint on November 29, 2021. D.E. 1. 3 Following Jersey Plaintiff filed the Amended Complaint. The Amended Complaint alleges four counts. The first three are against the Officer: Count I alleges sexual battery, Count II alleges violation of the New Jersey Child Sexual Abuse Act, N.J.S.A. 2A:61B-1, et seq., and Count III alleges fraudulent misrepresentation. Id. ¶¶ 33-71. Finally, Count IV alleges vicarious liability against Jersey City. Jersey City now moves to dismiss that count pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Count IV fails to state a claim. D.E. 14. Plaintiff opposes. D.E. 19. II. LEGAL STANDARD Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed above a speculative level, so that a claim i Twombly, 550 U.S. at 570; see also West Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 3 Though this action may once have been barred by the statute of limitations, the New Jersey state legislature passed Bills S477 and A3648, which extended the statute of limitations for a two-year filing period. N.J.S.A. 2A:14-2b. 2 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 3 of 17 PageID: 209 the Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly Id. Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim upon which relief can be granted. As the moving party, the defendant bears the burden of showing that no claim has been stated. Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of the motion, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014). III. DISCUSSION -pled factual allegations plausibly assert a claim for relief. The central dispute is whether Plaintiff has plausibly stated an exception conduct. A. An employer is not generally held vicariously liable for its the scope of employment As a federal court sitting in diversity, state whose laws govern the action apply the substantive law of the Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008). Here, the parties agree that the Court must apply New Jersey law, although for the reasons below, the Court will also look to other jurisdictions. The common-law doctrine of respondeat superior generally holds that an employer may be liable for the his or Di Cosala v. Kay, 91 N.J. 159, 168 (1982) (citing Gilborges v. Wallace, 78 N.J. 342, (1978); accord Singer v. Beach Trading Co., 876 A.2d 885, 893 (N.J. Super Ct. App. 3 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 4 of 17 PageID: 210 Div. 2005). to be within the scope of within the authorized time and space limits; [and] it is actuated, at least in part, by a purpose to Di Cosala, 91 N.J. at 168 (quoting Restatement (Second) of Agency 2d § 228); Rodriguez v. Zeigler, No. A-0591-16T3, 2018 WL 3130959, at *2 (N.J. Super. Ct. App. Div. June 27, 2018); accord Carter v. Reynolds, 815 A.2d 460, 465-66 (N.J. 2003). authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to Carter, 815 A.2d at 465 (quoting Restatement 2d § 228(b)). n act may be within the scope of employment although consciously criminal or tortious, Davis v. Devereux Found., 209 N.J. 269, 303 (2012), there is no dispute here that the actions were clearly outside the scope of employment. See D.T. v. Hunterdon Med. Ctr., No. A-2441-10T2, 2012 WL 4448774, at *5 (N.J. Super. Ct. App. Div. Sept. 27, 2012) ( sexual acts with [minor co-worker] had no relationship to his position as a transport aide at the hospital and were never undertaken with any reference to his employment, and therefore outside the scope of employment). B. vicarious liability rule Plaintiff Restatement 2d § 219(2), which provides, as relevant here, that: A master is not subject to liability for the torts of his servants acting outside (c) The conduct violated a non-delegable duty of the master, or (d) The servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in 4 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 5 of 17 PageID: 211 Phrased differently, § 219(2)(c) imputes liability to an employer acts outside the scope of employment when the employer owed a non-delegable duty to the tortfeasor s victim. And § 219(2)(d) imputes liability in two situations. apparent authority where one purports to speak for his employer in defaming another or interfering with another's business. 219 cmt. e -by- Rest. 2d § the servant may be able to cause harm because of his position as agent, as where a telegraph operator sends false messages purporting to come from third persons [or a store] manager customers because of his position is enabled to cheat the Id. rule if deciding the case. Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 91-92 (3d Cir. 2008). But there are no New Jersey Supreme Court cases precisely addressing whether these facts fall within Restatement 2d §§ 219(2)(c) and (d). K.J. v. J.P.D., No. 1:20-CV-14177, 2022 WL 4596717, at *12 (D.N.J. Sept. 30, 2022). And in that situation, courts look to decisions of state intermediate appellate courts, of federal courts interpreting that state s law, and of other state supreme courts that have addr scholarly works, and any other reliable data tending convincingly to show how the highest court Norfolk, 512 F.3d at 91. 1. Restatement 2d Section 219(2)(c): there is no non-delegable duty Under § 219(2)(c), Plaintiff argues that Jersey City had a non-delegable duty to protect children, and violated that non-delegable duty when it permitted an officer to abuse his authority. Plaintiff has not adequately demonstrated, however, that such a duty is (or would be) recognized by New Jersey courts. 5 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 6 of 17 PageID: 212 Restatement 2d § 214 - agent as follows: A master or other principal who is under a duty to provide protection for or have care used to protect others and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty. The duty diverges from traditional liability because it derives from the relationship between the employer and the person to whom the duty is owed based on its extraordinary importance to the public. Davis, 209 N.J. at 289. For that reason, the duty is quite broad an employer s exercise of reasonable care alone cannot satisfy it. Id. Or phrased differently nce an employee has committed a tortious act, the duty would effectively impose absolute liability upon law represent[ing] a significant expansion of New Jersey tort Id. at 289. a general duty of care by Jersey City to Plaintiff (and perhaps all children) is unsupported. As Jersey City highlights, the New Jersey Supreme Court has rejected the non-delegable duty doctrine in situations involving greater control and authority than the situation here. In Davis, the Court declined to extend the doctrine to a residential facility where with severe autism and developmental disabilities. 209 N.J. at 302 There is likewise no general basis, as Plaintiff urges, to impute any general non-delegable duty to Jersey City to protect its citizens state s failure to protect an individual against private violence simply does not constitute a violation of the Due Process absent a special relationship between the state and the victim. DeShaney by First v. Winnebago County Department of Social Services, 489 U.S. 189, 197 (1989) (declining to impose 6 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 7 of 17 PageID: 213 a duty upon a state to protect the life, liberty or property of a citizen from deprivations by private actors absent the existence of a special relationship). A generally requires affirmative act. For example, relationship between the state and foster children arises out of the state s affirmative act in finding the children and placing them with state-approved families an important continuing, if not immediate, responsibility for the child's well-being. Nicini v. Morra, 212 F.3d 798, 807-08 (3d Cir. 2000). The Third Circuit has read Deshaney as primarily setting out a test of physical custody. Philadelphia Police & Fire Ass'n for Handicapped Children, Inc. v. City of Philadelphia, ; see also, Fialowski v. Greenwich Home for Children, Inc., 921 F.2d 459 (3d Cir. 1990) (no duty of care for mentally impaired adult voluntarily placed at institution because state has not substantially curtailed his freedom). Thus, a special relationship and therefore a non-delegable duty and the incarcerated or involuntarily committed exist between the state placed ... in a custodial environment ... [and are] unable to seek alternative living arrangements Nicini, 212 F.3d at 808 (citing Taylor v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987) (en banc)). Conversely, where individuals substantial freedom to act no special relationship will be found. D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1373 (3d Cir. 1992) (citing J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267 (7th Cir. 1990)). Thus, ulsory attendance laws did not liken school children to prisoners and the involuntarily committed, both of whom are unable to provide for their own basic human needs. Id. Schoolchildren, like the institutionalized, may complain to officials, however, unlike prisoners and mental patients, they may also turn on a daily basis to others such as their parents for help. 7 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 8 of 17 PageID: 214 Cases cited by Plaintiff can be distinguished because they all involve arrest, incarceration, or some other physical restraint t factors not present here. For example, in Sherman v. State Dep't of Pub. Safety, in which the Delaware Supreme Court identified a non-delegable duty to safeguard the arrestee from harm while she was under arrest 190 A.3d 148, 154 (Del. 2018) (emphasis added) (cited by Pl. Opp. 36). In the child abuse context, in loco parentis (in the place of a parent) . Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 101 (2006) (finding violation of non-delegable duty where victim was boarding school student); see also J.H. v. Mercer Cnty. Youth Det. Ctr., 396 N.J. Super. 1, 18 (App. Div. 2007) (finding non-dele juveniles entrusted to its care from sexual abuse at the hands of employees granted supervisory authority over them ).4 Thus, New Jersey has not recognized, and likely will not recognize, any general nondelegable duty by Jersey City to protect Plaintiff, and thus Restatement § 219(2)(c) does not apply. That is not to say, however, that s are not viable. 2. Restatement Section 219(2)(d): Aided-by-agency and apparent authority Under Restatement § 219(2)(d accomplishing his intentional torts (sexual battery) against Plaintiff by the existence of the agency Jersey City. ¶¶ 85-87, 106-141. Plaintiff alleges, in other words that the role and/or authority as a police officer, conferred upon him by the City, facilitated the 4 In Davis, the New Jersey Supreme Court clarified that J.H. -dele commonmisconstrued earlier decisions which addressed Restatement § 219(2)(d), not (c). 209 N.J. at 292, n.5. Section (d) is addressed below. 8 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 9 of 17 PageID: 215 rape and cover-up by placing him in a position to make believable threats to arrest Plaintiff and his parents. Amended Complaint ¶¶ 105-111. Restatement 2d § 219(2)(d) imposes liability for acts outside the scope of employment [employee] purported to act or to 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 Each clause is treated as a distinct exception. a. Aided-by-agency were aided by his role as a Jersey City police officer Some courts have applied the aided-by-agency theory literally. See Costos v. Coconut Island Corp., 137 F.3d 46, 50 (1st Cir. 1998) (applying aided-bymanager, by virtue of his agency relationship with the hotel, was entrusted with keys to all rooms plaintiff). The same year as Costos, the Supreme Court applied it to Title VII workplaceharassment claims. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (Kennedy, J.); Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (Souter, J.). Still, many courts, in addition to dissenters from opinions adopting the aided-by-agency theory, have criticized this theory as an expansion of liability better suited to legislatures. See, e.g., Hamed v. Wayne Cnty., 490 Mich. 1, 29 (2011) (rejecting aided-by-agency theory where officer arrested and sexually assaulted a detainee in jail). Those opinions expressed several § 219(2)(d) is phrased so vaguely and devoid of any limiting principles that it would be an exception so broad as to swallow the rule. Pearce v. Werner Enterprises, Inc., 116 F. Supp. 3d 948, 955-56 (D. Neb. 2015) (citing Zsigo, 475 Mich. at 226-29); see also E.S. for G.S. v. Brunswick Inv. Ltd. P'ship, 469 N.J. Super. 279, 300 (App. Div. 2021) without principled limitations, § 219(2)(d) could swallow[ ] the general rule that respondeat 9 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 10 of 17 PageID: 216 superior does not attach to intentional torts and render employers strictly liable for their s scope of employment. One court illustrated it 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. [R]ead literally, 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 theory 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 proceeded 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 using a company car or a police department or security company-issued gun, then the plaintiff could name the issuing employer. Most open-endedly of all, a plaintiff might even be able to name a tortfeasor's employer in a drive-by shooting, even if the employer issued neither the gun nor the car, if the tortfeasor bought the gun or the car using his or her salary which, after all, he or she obtained by virtue of the employment (i.e., agency) relationship. Pena v. Greffet, 110 F. Supp. 3d 1103, 1118 (D.N.M. 2015). Jersey City cites these critiques, noting that New Jersey is not among the few jurisdictions which have expanded vicarious liability to police officers. Jersey City Br. 21. But that is beside the point. Upon a motion to dismiss, the Court need only determine whether Plaintiff has stated a plausible claim; in other words, whether the New Jersey Supreme Court might, confronted with these facts, join those other jurisdictions. Because this Court finds that it would, the motion to dismiss will be denied. adopted [Restatement §] 219 as the framework for evaluating employer liability in hostile environment sexual harassment claims brought under the . Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 101 (2006) (citing Lehmann v. Toys R Us, Inc., 132 N.J. 587, 619-20 (1993) 10 f an employer Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 11 of 17 PageID: 217 delegates the authority to control the work environment to a supervisor and that supervisor abuses that delegated authority, then vicarious liability under § 219(2)(d) will follow. Supreme Court subsequently extended the Lehmann holding to Conscientious Employee Protection Act (CEPA) [b]oth CEPA and LAD effectuate important public policies[:] overcom[ing] the victimization of employees and to protect those who are especially vulnerable in the workplace from the improper or unlawful exercise of authority by employers. Hardwicke, 188 N.J. at 102 (citing Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 417 (1994)). In Hardwicke, the New Jersey Supreme Court applied the aided-by-agency exception to protect children from abuse by those in loco parentis, holding that a boarding school could be held liable for the intentional acts of its employee outside of the scope of employment there, like here, sexually abusing a minor. 188 N.J. 69. But t has never applied the aided-by- any circumstance other than those remedial statutes designed to eradicate workplace discrimination and harassment, to protect conscientious employees, or to protect children from abuse by those in loco parentis . Brunswick, 469 N.J. Super. at 302. Courts that have adopted the aided-by-agency theory have interpreted it narrowly and sparingly. Where employed, the common thread is the unique power of the employee over a victim. See Ayuluk v. Red Oaks Assisted Living, Inc., 201 P.3d 1183, 1200 (Alaska 2009) (finding caregiver in an assisted living home who has supervisory power or authority over vulnerable residents is in a position that is analogous to that of a supervisor hile the sexual advances themselves may neither be authorized nor reasonably appear to be authorized by 11 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 12 of 17 PageID: 218 the employer, the caregiver s power that enables him to further his improper conduct is an inherent part of the employment relationship Unsurprisingly, these considerations sharpen in a law enforcement context. What makes [such circumstances] virtually unique from a policy perspective is the extraordinary power that a law enforcement officer has over a citizen. Doe v. Forrest, 2004 VT 37, ¶ 34 (2004) lmost uniformly, where excesses are committed by such officers, their employers are held to be responsible for their actions even though those actions may be somewhat removed from their usual duties. This is unquestionably the case because of the position of such officers in our society. Id. at 37, ¶ 35. As the Brunswick outside such situations have done so only if the employee-tortfeasor was in a position to exercise unique power over the victim Brunswick, 469 N.J. Super. at 302 (emphasis added). Other courts discussing this extraordinary power have found Mary M. v. City of Los Angeles, 54 Cal.3d 202 (1991) (en banc) (quoting Policemen's Benev. Ass'n of N.J. v. Washington Tp., 850 F.2d 133, 141 (3d Cir. 1988) ( power that a democratic state possesses with respect to its residents the power to use lawful force )); Applewhite v. City of Baton Rouge, 380 So.2d 119, 121 (La.Ct.App. 1979) e the plaintiff from her see also Mahar v. StoneWood Transp., 823 A.2d 540, 545-46 (Me. 2003) (finding that the theory was inapplicable where a truck driver driving his employe manner). 12 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 13 of 17 PageID: 219 The Appellate Division, in Brunswick, cited favorably to three state supreme court decisions imputing liability to a municipality for sexual assault by its officer: Sherman v. State Dep't of Pub. Safety, 190 A.3d 148, 154-55 (Del. 2018) ( police officer makes a valid arrest and then uses that leverage to obtain sex from his arrestee, his misconduct need not fall within the scope of his employment ... to trigger his employer authority entrusted in ... police Spurlock v. Townes, 368 P.3d 1213, 1216-17 (N.M. 2016) (corrections officer), and Forrest, 853 A.2d at 60-67 (applying theory to sexual assault by a police citizen Likewise, the Third Circuit recently cited favorably to both Costos, which imputes of some special mechanism afforded to him by his employment and Forrest, which imputes vicarious liability Yucis v. Sears Outlet Stores, LLC, 813 F. App'x 780, 786 (3d Cir. 2020). central policy argument is that imputing vicarious liability would authorize a near-unlimited expansion of tort liability to police departments and other public service agencies. In other words, if liability is found, police departments might be forced to reduce or limit services. But this argument was considered and rejected by the courts adopting the aided-by-agency theory. As the Sherman court held, the concerns are mitigated by recent developments: police agencies are well positioned through careful hiring, training, and other practices to address the risk of sexual misconduct by their officers[,] including training officers on the proper way to interact with the public, and efforts to monitor the time officers spend with arrestees to ensure that it is not suspiciously long. With developments such as body cameras and other technologies providing both video and audio monitoring of police contact with the public, police agencies should, we hope, be even better positioned to deter and prevent sexual wrongdoing by police officers. 13 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 14 of 17 PageID: 220 190 A.3d at 189. And despite concerns expressed about the aided-by- unrestrained expansion into other arenas and infringement upon the province of the legislature, it does not appear that those concerns were justified. Indeed, even the Vermont Supreme Court, which applied the theory in Forrest, rebuffed attempts to expand the agency exceptions beyond those boundaries. See Doe v. Newbury Bible Church, 182 Vt. 174, 198 (2007) (answering a certified question from the Second inv Accordingly, Plaintiff has stated a claim for vicarious liability. b. Apparent authority The second Restatement 2d § 219(2)(d) component is apparent authority. Under that theory, vicarious liability can also be imputed to an employer upon conduct which is within the apparent authority of a servant, as where one purports to speak for his employer in defaming another or interfering with another's business. Apparent authority may also be the basis of an action of deceit, and even physical harm. Restatement 2d § 219, cmt. on subsection (2) (citations omitted). There is substantial overlap between aided-in-agency and apparent authority. As one court if a tortfeasor uses his or her apparent authority to commit a tort that he or she could not have committed or would have had a harder time committing without the apparent authority, then the agency relationship aided the tortfeasor. Pena, 110 F. Supp. 3d at 1118. But despite the overlap, the concepts remain distinct. And whereas courts have been more inclined to find liability where torts were courts have been less inclined to find The Brunswick court, for 14 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 15 of 17 PageID: 221 example, found that a property owner had authorized its employee to make repairs and perform only authority that plaintiff and her family could have reasonably relied upon in permitting him access or otherwise not objecting to his access. hold [the employer] vicariously liable for 469 N.J. Super. at 305. Thus, rape], plaintiff was required to demonstrate that employer provided the employee commit the crime. Likewise, even in Forrest, where the police officer who raped the plaintiff had the ordinary trappings of police power a gun, badge and uniform conclude that it would be reasonable for plaintiff to infer such authority from the visible manifestations of Forrest's power as a law enforcement officer or his threats, if any, to use his power on plaintiff. 2004 VT at 37, ¶ 24. That said, at this juncture, Plaintiff has asserted a plausible claim for two reasons. The first is that there is some authority suggesting that apparent authority may have a subjective component. For example, the Pena court found that although apparent authority requires an objectively reasonable perception that the agent was acting pursuant to the principal s orders[,] some attention should be paid to the level of sophistication and, frankly, desperation, typical among inmates, and how those factors affect their reasonable perception of a prison guard s authority In other words, an inmate [singled out for attention] likely feels as if she is under the control of the guard himself. 110 F. Supp. 3d at 1135. This could plausibly be compared to the situation here: the Officer used his authority as in his neighborhood to separate Plaintiff, who reasonably believed that the Officer could (and would) arrest him or his family, from his companions to assault him. And the is that the Restatement (Third) of Agency (2006) authority basis for liability. The American Law Institute Criticism considered criticism of the 15 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 16 of 17 PageID: 222 aided-by-agency theory when it drafted the Restatement 3d. 5 explain that the aided-by-agency exception was omitted as a distinct basis for vicarious liability in t authority and by the duty of reasonable care that a principal owes to third parties with whom it interacts through employees and other agents Restatement 3d § 7.08 cmt. b. Section 7.08 provides that A principal is subject to vicarious liability for a tort committed by an agent in dealing or communicating with a third party on or purportedly on behalf of the principal when actions taken by the agent with apparent authority constitute the tort or enable the agent to conceal its commission. But the apparent authority theory survived and, arguably, expanded slightly with the Here, Plaintiff has plausibly alleged that he believed that the Officer acted with apparent authority in ordering him to meet him the next day to facilitate the rape (by getting Plaintiff alone), or concealing it thereafter (the threat of arrest). Compl. ¶¶ 11-24; Applewhite, 380 So.2d at 121 ble to separate the plaintiff from her companions because of the force and authority of the position which he held on duty in uniform and armed, and was operating a police unit at the time . This provides another basis to deny the motion. C. Finally, Jersey City also Complaint -finder (likely a jury) to assume that 5 Jersey City argues that New Jersey has not adopted the Restatement (Third) of Agency (2006) et seq.. This is a confusing, and perhaps self-defeating argument because, as Jersey City recognizes and as discussed here, the 3d Restatement narrows vicarious liability by removing the stronger aided-byagency exception. In any event, it is unclear, at this juncture and based on the briefing before the Court, which Restatement would apply. 16 Case 2:21-cv-20222-EP-CLW Document 30 Filed 11/15/22 Page 17 of 17 PageID: 223 , a Jersey City Police Officer. While Jersey City may be correct hat determination is premature before any discovery has occurred, as this matter is still in its early phases. The matter is also insufficiently briefed the only case cited by Jersey City is inapplicable. See Tonka Corp. v. Rose Art Indus., Inc., 836 F. Supp. 200, 217 (D.N.J. 1993) (discussing the mechanism for striking affirmative defenses). Accordingly, that request will be denied without prejudice. IV. CONCLUSION For DENIED. An appropriate order follows. Dated: 11/15/2022 __________________ Evelyn Padin, U.S.D.J. 17

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