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Jane D.W. Doe, the deceased plaintiff whose estate is represented by Sherman (P), was validly arrested by a Delaware State Police Officer for shoplifting, and 'was subject to an outstanding capias.' The Officer told her that if she performed oral sex on him, he would take her home, and she could just turn herself in on the capias the next day. If she refused, he would 'take her to court, where bail would be set, and . . . she would have to spend the weekend in jail.' Doe performed oral sex, and the Officer drove her home. Doe reported the incident. The Officer denied that the oral sex occurred, but DNA evidence of the oral sex was found on Doe's jacket. The Officer then claimed she just came onto him, and he made the mistake of engaging in it. It is a fact that the Officer received oral sex from Doe while she was under arrest. The State (D) charged the Officer with crimes. The Officer killed himself shortly after his arrest. Both Doe and the Officer are dead. In her complaint, Doe alleged that the Officer arrested her for shoplifting. Doe did not allege that the Officer's desire for oral sex was motivated in any part by his duties to the State Police or D itself. Doe's complaint alleged that the Officer's acts 'were done in bad faith, with no belief that the public interest would be served thereby.' In its first motion for summary judgment, D argued that the facts Doe pled-that the Officer sought sexual favors from her in exchange for releasing her on her own recognizance-failed to satisfy the scope-of-employment test that our law uses to assess whether respondeat superior liability applies to an employer. D argued that Officer was not employed to receive oral sex, and that there was no way in which the Officer's receipt of oral sex from Doe was motivated by a desire to serve the interests of D. D argued that, as a matter of law, Doe could not satisfy the requirements of the § 228 test because the sexual misconduct was not 'motivated in part at least to serve the master'-thus failing the Motivation Prong-and the 'force used in committing the rape was unexpected by the master'-thus failing the Foreseeability Prong. Doe pointed to another section of the Restatement that is designed to provide exceptions to § 228, § 219. Citing § 219(2)(d), Doe argued that 'if an employee uses a position or power afforded by the employment relationship to commit a tort the employer is vicariously liable,' and that the Officer in this case 'committed the acts charged by abusing his power as a State Officer to arrest and hold [Doe] in custody.' Section 219 exempts a plaintiff from having to prove under § 228 that the tort occurred within the scope of employment. The Court held as a matter of law that Doe's claim failed to establish the D's liability under § 228. The Court dismissed her case on summary judgment. Doe appealed. On appeal, the court found that, as a matter of law, Doe had satisfied § 228's first two prongs: The Officer was in uniform, on-duty, carrying out a police duty by transporting Doe to court. The sexual assault took place in the police car, during the time that the Officer was supposed to be carrying out police duties. As to § 228's Motivation and Foreseeability Prongs, this Court reversed the Superior Court's ruling that, as a matter of law, Doe had failed to provide evidence raising a material issue of fact for resolution by jury trial. We held that she was entitled to have a jury decide whether those prongs were satisfied. We remanded to the Superior Court so that it could present § 228's Motivation and Foreseeability Prongs to the jury. We did not reach or even mention Doe's argument that § 219(2)(d) applied in this case and exempted her from the need to show that the Officer's misconduct fell within the scope of his employment. On remand, D asserted a sovereign immunity defense. D moved for summary judgment, arguing that Doe's claims were 'excluded [from] coverage under the terms of the Department of Public Safety Division of State Police self-insurance plan and therefore not subject to a waiver of sovereign immunity.' The Officer's estate also brought a motion to dismiss, arguing that Doe's complaint against the estate was time-barred. The Court granted D's motion for summary judgment and also the Officer’s motion as well. Doe took her second appeal. Doe argued about §228's Motivation and Foreseeability Prongs. Doe also argued that § 228's Motivation Prong should not be submitted to the jury when the facts regarding its applicability are uncontested. Doe also argued that the applicability of § 228's Foreseeability Prong was an issue for this Court to resolve as a matter of law, because there was no dispute of fact between the parties. Doe contended the Officer's sexual misconduct was foreseeable in the sense that it was foreseeable that a police officer might misuse his authority over an arrestee to procure sexual favors and that the only issue to be resolved was a legal one. In the Doe II decision, we focused almost entirely on the sovereign immunity and timeliness issues. We found for Doe on the sovereign immunity issue, clearing that obstacle to her recovery against D, and we upheld the Superior Court's ruling that Doe's claim against the Officer's estate was time-barred. We relied on the law of the case doctrine and indicated that Doe I said that the question of whether § 228'sMotivation and Foreseeability Prongs were satisfied was for the jury to decide. The Court held a trial. The Court's instruction was just a rote reiteration of the § 228 test for scope of employment, and did not frame a case-specific fact question for the jury to resolve. The jury found that D was not liable for the Officer's sexual misconduct. Doe moved for a new trial, which was denied. Doe appealed.

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