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15-P-452 Appeals Court

MARK ADAMS vs. CONGRESS AUTO INSURANCE AGENCY, INC.

No. 15-P-452.

Middlesex. March 10, 2016. - December 21, 2016.

Present: Kafker, C.J., Vuono, & Henry, JJ.

Negligence, Insurance company, Employer, Foreseeability of harm, 

Causation, Retention of employee, Entrustment, Emotional 

distress. Damages, Emotional distress. Consumer 

Protection Act, Responsibility of employer. Practice, 

Civil, Summary judgment, Motion to amend.

Civil action commenced in the Superior Court Department on 

April 16, 2013.

Motions for summary judgment and to amend the complaint 

were heard by Peter B. Krupp, J.

Henry P. Sorett for the plaintiff.

Jeffrey S. Robbins for the defendant.

HENRY, J. This case arose from an employee's improper use 

of confidential information accessed through her workplace 

computer. The employee gave that information to her boy friend, 

who used it to intimidate a witness, Mark Adams. Adams brought 
2

this action against the employer, Congress Auto Insurance 

Agency, Inc. (Congress Agency or agency). A Superior Court 

judge dismissed four of his five claims. The case proceeded to 

discovery on the remaining claim against the agency that alleged 

negligent failure to safeguard Adams's personal information. 

The same judge subsequently granted the agency's motion for 

summary judgment on the remaining count and in the same 

memorandum and order denied Adams's motion to amend his 

complaint to reinstate the dismissed claims and to add a claim 

for violation of 18 U.S.C. §§ 2721-2725. Adams appealed. We 

affirm in part and reverse in part.

1. Summary judgment. "The standard of review of a grant 

of summary judgment is whether, viewing the evidence in the 

light most favorable to the nonmoving party, all material facts 

have been established and the moving party is entitled to 

judgment as a matter of law." Lev v. Beverly EnterprisesMassachusetts, Inc., 457 Mass. 234, 237 (2010) (Lev), quoting

from Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358 

(1997). The burden rests on the defendant, as the moving party, 

to affirmatively demonstrate the absence of a genuine issue of 

material fact on every relevant issue. Ibid.

a. Facts. Viewed in the light most favorable to Adams, as 

required at this stage of the proceedings, the summary judgment 

record discloses the following facts. The Congress Agency hired 
3

Elizabeth Burgos in August, 2003, as a customer service 

representative, promoting her to customer service manager in 

2010. Burgos, through her work computer, had access to the data 

systems of Safety Insurance Company (Safety), and, through 

Safety's internet portal, to records maintained by the Registry 

of Motor Vehicles (RMV). Safety insures Burgos's vehicle.

In 2010, the Congress Agency, by its president and owner, 

Gordon Owades, drafted a data security plan for ensuring the 

protection of personal information of the residents of the 

Commonwealth. Owades trained all agents, including Burgos, on 

the data security policies. One company policy prohibited 

employees from accessing or using a driver's personal

information, obtained in the course of the employee's work, for 

personal purposes. In addition, each time a Congress Agency 

employee wished to access the RMV database through the Safety 

portal, Safety required the agent to affirmatively agree to use 

the information obtained for one of four limited purposes: 

claims investigation activities, anti-fraud activities, rating, 

and underwriting.1 

On July 13, 2012, Burgos's boy friend, Daniel Thomas,

engaged in a high-speed flight from police while driving 

 

1 Safety referenced the provisions of the Federal Drivers 

Privacy Protection Act (DPPA), 18 U.S.C. §§ 2721-2725, and 

warned agents about the consequences of the improper use of 

personal information obtained from the RMV's records.
4

Burgos's Mercedes automobile. At that time, Thomas was on 

supervised release for a Federal firearm violation, and was 

driving without a valid license. During his flight, Thomas 

struck a vehicle operated by the plaintiff, Mark Adams. Thomas 

abandoned the Mercedes and fled. 

On July 24, 2012, Adams, who had filed a claim against 

Burgos's automobile policy, gave a statement to a Safety claims 

adjuster investigating the accident. He informed the adjuster 

that he could identify the driver of the Mercedes and provided 

his contact information, including his cell phone number and 

home address. 

Meanwhile, Burgos reported her vehicle stolen to the 

police, and subsequently filed her own insurance claim for the 

loss with Safety. Burgos, using her access to confidential data 

through the agency, obtained information about her own claim, 

and learned Adams's identity as the individual who had filed a 

claim against her Safety insurance policy and his contact 

information. The next day, Adams received a threating telephone 

call from Thomas.

2 Adams immediately reported the threat to the 

authorities.

 

2 Thomas claimed to be a Massachusetts State police officer. 

Thomas told Adams that the driver of the car that struck his was 

a "very, very dangerous man with very dangerous friends." 

Thomas warned Adams to "do [himself] a favor. Shut the F up and 

get your car fixed or you will have issues."
5

The Massachusetts State police visited the agency's office 

on August 28, 2012; Burgos refused to speak with them. The 

Congress Agency continued to provide Burgos access to the Safety 

databases and to the RMV records. On December 13, 2012, Owades 

terminated Burgos for "her serious misuse of access to 

confidential information." 

On January 9, 2013, in the Boston Municipal Court (BMC), 

Burgos and Thomas admitted to sufficient facts and pleaded

guilty to witness intimidation and conspiracy in connection with 

the threat made to Adams. In particular, Burgos admitted that 

she had used her position at the agency to obtain Adams's date 

of birth, address, and cell phone number. 

Discovery in this matter provided additional information 

about an earlier incident when Burgos engaged in criminal 

behavior with, or to protect, her boy friend. Specifically, on 

June 19, 2010, while Thomas and Burgos were driving cross 

country, the Iowa State police stopped the vehicle for speeding. 

In the vehicle the police discovered two loaded semi-automatic 

firearms concealed in Burgos's purse, ammunition, a receipt for 

the purchase of additional ammunition in Burgos's day book, a 

half-face mask, and a police scanner. One handgun was stolen; 

the other had its serial number defaced. Thomas claimed he knew 

nothing about the weapons and ammunition, while Burgos admitted 

to the police that they were hers. Burgos and Thomas were 
6

arrested and eventually indicted for possession of a firearm 

with an obliterated serial number. 

After Burgos was released on bail, she returned to 

Massachusetts and continued to work at the Congress Agency. On 

October 21, 2010, the United States Marshals Service arrested 

Burgos at the agency's office. The office manager notified 

Owades of Burgos's arrest. Upon her return to work four days 

later, Burgos explained to Owades that there was "a 

misunderstanding as to who was in possession of the firearm at 

the time of the incident in Iowa;" the gun belonged to her boy

friend; she did not know it was present in the vehicle prior to 

its discovery by the police; its presence was frankly a "shock" 

to her; "ultimately, she would be exonerated"; and "[the 

misunderstanding] was not going to affect her ability to work." 

Burgos informed Owades that Thomas went to jail. Owades 

conducted no independent investigation into the circumstances of 

her arrest because he "did not at the time think it was germane 

to her employment." 

Burgos subsequently told Owades that she had some legal 

"arrangement" with the authorities that would last a year.3 At 

 

3 Burgos entered into an agreement with the United States 

Attorney for the Southern District of Iowa to participate in the 

pretrial diversion program, an alternative to criminal 

prosecution. As a condition of participation in the diversion 

program, an offender is not asked to admit guilt, but must 

acknowledge responsibility for the behavior.
7

the end of that time period, Burgos informed Owades that the 

matter was resolved. In fact, following her completion of the 

diversion program, the United States Attorney dismissed the 

indictment on May 24, 2012.

4 Approximately seven weeks later, 

Thomas struck Adams's vehicle.

b. Discussion. A plaintiff must prove four elements in 

order to prevail on a negligence claim: (1) duty; (2) breach of 

duty; (3) a causal connection between the breach of duty and 

damages; and (4) damages. See Jupin v. Kask, 447 Mass. 141, 146 

(2006). In its motion for summary judgment, the agency 

challenged Adams's ability to satisfy each of these elements of 

the tort of negligent failure to safeguard personal information. 

The motion judge agreed, ruling that expert testimony was 

required to establish whether the agency owed a duty to Adams to 

safeguard his personal information, what that duty entailed, and 

whether the agency breached that duty. The motion judge also 

found that Adams was unable to prove that the agency's 

negligence was the proximate cause of injury to Adams. 

The existence of a legal duty is a question of law 

determined "by reference to existing social values and customs 

and appropriate social policy." See id. at 143, quoting from 

 

4 Thomas pleaded guilty to the Federal weapon charge, and 

was sentenced to prison followed by supervised release.
8

Cremins v. Clancy, 415 Mass. 289, 292 (1993). The other three 

elements ordinarily are questions of fact for the jury. See id. 

at 146.

i. Legal duty. As a general rule, a party has no duty to 

control another person's conduct to prevent that person from 

causing harm to a third person. See Leavitt v. Brockton Hosp., 

Inc., 454 Mass. 37, 40-41 (2009) (Leavitt). Well-established 

exceptions to that rule are recognized in the employment 

context. At common law, an employer owed the duty to exercise 

reasonable care in the selection and retention of employees that 

have contact with members of the public. See Carson v. Canning, 

180 Mass. 461, 462 (1902); Foster v. The Loft, Inc., 26 Mass. 

App. Ct. 289, 290-291 (1988) (Foster). More recently, courts 

have recognized a potential duty of care owed by employers where 

the employment facilitates the employee's causing harm to third 

parties. See Restatement (Third) of Torts: Liability for 

Physical and Emotional Harm § 41 (2012). See also Leavitt,

supra at 41 & n.10; Lev, 457 Mass. at 242-244; Roe No. 1 v. 

Children's Hosp. Med. Center, 469 Mass. 710, 714 & n.7 (2014); 

Doe v. Boston Med. Center Corp., 88 Mass. App. Ct. 289, 291 

(2015).

In deciding whether a special relationship exists between a 

particular plaintiff and defendant, our foremost consideration 

is whether "a defendant reasonably could foresee that he would 
9

be expected to take affirmative action to protect the plaintiff 

and could anticipate harm to the plaintiff from the failure to 

do so." Irwin v. Ware, 392 Mass. 745, 756 (1984). "All the 

circumstances are examined in defining the scope of a duty of 

care based on the reasonable foreseeability of harm." Whittaker

v. Saraceno, 418 Mass. 196, 199 (1994). 

In the circumstances of this case, we conclude that the 

agency had a legal duty to Adams, a member of a large but 

clearly defined class of third parties, to prevent its 

employee's foreseeable misuse of the information that Adams 

provided to process his automobile insurance claim.

5

ii. Breach of duty. We hold that a jury reasonably could 

find that the Congress Agency breached its legal duty to Adams 

under two possible theories: the conflict of interest inherent 

 

5 In fact, the Legislature has established statutory and 

regulatory duties to take adequate measures to safeguard the 

confidentiality of the personal information of all Massachusetts 

residents. See G. L. c. 93H, § 2(a), added by St. 2007, c. 82, 

§ 16 and 201 Code Mass. Regs. §§ 17.00 - 17.05 (2009) (standards 

for the protection of the personal information of residents of 

the Commonwealth). "Personal information" is defined as "a 

resident's first name and last name or first initial and last 

name in combination with any [one] or more of the following data 

elements that relate to such resident: (a) Social Security 

number; (b) driver's license number or state-issued 

identification card number; or (c) financial account number, or 

credit or debit card number, with or without any required 

security code, access code, personal identification number or 

password, that would permit access to a resident's financial 

account." G. L. c. 93H, § 1(a). See also 201 Code Mass. Regs. 

§ 17.02.
10

in allowing Burgos unrestricted access to information relating 

to a claim against her own insurance policy; and the failure to 

investigate Burgos's continuing fitness for access to the 

confidential information of others available through her 

employment.

First, a jury reasonably could find that the agency 

breached its duty to protect the confidential information 

entrusted to it or Safety by failing to prevent a conflict of 

interest that arises from its employees having unrestricted 

access to their own claim information. In this case, Burgos was 

able to retrieve information about the pending claim by Adams 

against her policy, including the notes from the Safety claims 

adjuster that contained Adams's identity and contact 

information. Allowing employees to access the confidential 

information of claimants against them during the adjustment 

process potentially creates a conflict of interest, and a jury 

reasonably could find the agency negligent without the necessity 

of expert testimony. See Herbert A. Sullivan, Inc. v. Utica 

Mut. Ins. Co., 439 Mass. 387, 402-403 (2003) ("The test for 

determining whether a particular matter is a proper one for 

expert testimony is whether the testimony will assist the jury 

in understanding issues of fact beyond their common 

experience").
11

Second, a jury could find that the Congress Agency was 

negligent when it accepted Burgos's version of her criminal 

involvement in the Federal firearms indictment without 

independent investigation. An employer may be held liable for 

negligence if it "becomes aware or should have become aware of 

problems with an employee that indicated [her] unfitness, and 

the employer fails to take further action such as investigating, 

discharge or reassignment." Foster supra at 291, quoting from

Garcia v. Duffy, 492 So.2d 435, 438-439 (Fla. Dist. Ct. App. 

1986). The scope of an employer's duty to undertake prudent 

investigation into the fitness of an employee "is directly 

related to the severity of risk third parties are subjected to 

by [the] employee." Heng Or v. Edwards, 62 Mass. App. Ct. 475,

488 (2004) (Heng Or), quoting from Ponticas v. K.M.S. Invs., 331 

N.W.2d 907 (Minn. 1983).6

Here, the access to confidential personal information of 

the citizens of the Commonwealth and others inherent in Burgos's 

employment heightened the potential risk that she posted to 

third parties. Just as those with physical keys to the homes of 

 

6 An employer's knowledge of an employee's past conviction 

of the same or similar crime is one circumstance that may 

support liability for negligent hiring or retention. See Foster

supra at 294-295 & n.7. Where the crimes are entirely 

unrelated, however, such as a conviction of larceny by check 

followed by a rape of a customer, the employee's criminal 

record, standing alone, would not establish negligence. See id. 

at 294 n.7.
12

others have a duty of reasonable care to preserve their 

security, companies whose employees have access to the 

confidential data of others have a duty to take reasonable 

measures to protect against the misuse of that data. Reviewing 

the record in the light most favorable to Adams, as we must at 

this stage, if the Congress Agency had investigated, it could 

have discovered facts that called into question Burgos's honesty 

and fitness for access to other people's personal information. 

An investigation by the agency could have revealed that Burgos 

was not forthright with Odwades, that at a minimum she had been 

involved with illegal firearms, and that she either concealed 

her own involvement or lied at her own peril to protect her boy 

friend. A jury could find that these facts would have placed 

the agency on notice that its employee was sufficiently 

untruthful as to merit further consideration of whether she 

should continue to have access to databases containing 

confidential information.

In reaching this conclusion, we consider Heng Or, supra, to 

be particularly instructive. In Heng Or, the defendant, the 

owner of an apartment building, gave several apartment keys to a 

handyman, Vao Sok. See id. at 479-480. At the time of the 

entrustment, the defendant knew that Sok was a jobless, homeless 

drifter with addiction problems. See id. at 482. Without 

further inquiry, the defendant accepted Sok's inaccurate report
13

of his legal troubles. See id. at 481. The defendant could 

have learned that Sok had an uncontrollable temper; tenants in 

the building feared him and would not leave their children alone 

with him; and, prior to the time Edwards entrusted Sok with the 

keys, that Sok stood indicted for kidnapping and raping a young 

girl. See id. at 481-482. Sok raped and asphyxiated a young 

child in one of the apartments to which the keys gave him 

access. On this evidence, this court concluded the defendant 

was fairly found liable in negligence for hiring and entrusting 

the keys to an unfit individual. See id. at 476. The court 

also concluded that the jury was warranted in finding that the 

violent attack fell within the range of reasonably foreseeable 

harms created by the failure to make due inquiries about Sok in 

combination with the entrustment of keys. See id. at 487-488. 

It is a question for a jury whether, based on the 

information it knew or could have known at the time, the agency 

should have continued to allow Burgos continued access to 

confidential information.

iii. Proximate cause. The motion judge concluded that the 

Congress Agency was entitled to summary judgment based on the 

intervening, superseding criminal acts of Burgos and Thomas.

7 We 

 

7 The agency's argument that Adams has waived this point is 

unpersuasive. Adams did in fact address the judge's ruling on 

causation in his brief. Although Adams did not address the 

judge's footnote disposition of the element of harm as matter of 
14

disagree. The necessary causal connection may be found "[if] 

the injury to the plaintiff was a foreseeable result of the 

defendant's negligent conduct." Kent v. Commonwealth, 437 Mass. 

312, 320 (2002). "Where the intervening occurrence was 

foreseeable by a defendant, the causal chain of events remains 

intact and the original negligence remains a proximate cause [of 

the plaintiff's injury]."

8 Zinck v. Gateway Country Store, Inc., 

72 Mass. App. Ct. 571, 578 (2008), quoting from Delaney v. 

Reynolds, 63 Mass. App. Ct. 239, 242 (2005). 

The intervening acts of Burgos here were not so improbable 

as to remove the foreseeability question from the special 

province of the jury. See id. at 578-579. Nor was the harm 

sustained by Adams so "highly extraordinary" as to relieve the 

agency of liability. Id. at 578, quoting from Heng Or, supra at

486. A jury could conclude that the Congress Agency was put on 

notice that Burgos should not have been entrusted with access to 

 

law, we decline to apply a strict rule of waiver where the 

ground did not support the entry of summary judgment as the 

agency maintains, and the cases relied upon by it to support 

waiver are distinguishable in material respect.

8 A separate theory of liability arising from the agency's 

failure to report Burgos's arrest to the Division of Insurance 

in violation of G. L. c. 175, § 162V(b) was inadequately argued 

and thus waived. See Mass.R.A.P. 16(a)(4), as amended, 428 

Mass. 1603 (1999); Electronic Data Sys. Corp. v. Attorney Gen., 

454 Mass. 63, 65 n.5 (2009). In any event, it is far from clear 

that the statute applied in this case where Burgos entered into 

a diversion agreement in lieu of prosecution.
15

the confidential information of others, especially where that 

information could involve a claim against her or her boy friend. 

The agency knew of the weapons charge and it could have learned 

of Burgos's misrepresentation about that charge to Owades, that 

the weapons charge involved concealment and possible violence, 

and of Burgos's willingness to commit a crime with, or to 

protect, her boy friend.

The Congress Agency's reliance on Coughlin v. Titus & Bean 

Graphics, Inc., 54 Mass. App. Ct. 633 (2002) (Coughlin), to show 

the absence of negligence is misplaced, as it is distinguishable 

on the facts. In that case, the employer, a small company in 

the business of manufacturing signs, took a chance by hiring 

Michael Kelley, a released sexually dangerous person with a long 

criminal record. See Id. at 636-637. At the time of hiring, 

the employer knew Kelley had been incarcerated for fourteen 

years for committing a violent crime. See id. at 637. The 

employer placed precautionary limitations on the position; it 

assigned Kelley to work alone in a warehouse away from contact 

with its customers and other employees and did not provide him 

with keys to the warehouse. See id. at 637 & n.6. A background 

check would have revealed favorable professional opinions 

supporting Kelley's parole. See id. at 640 & n.9. Four days 

into his employment, Kelley, who had a set of keys in his 

possession, lured a passerby into the warehouse and murdered her 
16

before his scheduled shift. See id. at 637-638. In contrast to 

this case, Coughlin is a case where the employer assessed the 

risk and took significant steps to limit risk of harm to others. 

Here, as there was a genuine issue of material fact on the 

question of foreseeability, summary judgment was inappropriate.9

iv. Damages. The Congress Agency's argument that Adams's 

proof of emotional distress damages was inadequate suffered from 

the same infirmity as the judge's analysis: it was based on an 

improper view of the facts more favorable to the agency than 

warranted by the summary judgment record. 

The facts contained within the summary judgment record 

contain sufficient evidence of Adams's worsening physical 

symptoms to warrant the submission of the claim to the jury. 

See Sullivan v. Boston Gas Co., 414 Mass. 129, 137-140 (1993). 

While Adams admitted that he had longstanding emotional and 

sleep problems, he claimed that they worsened over time 

following Thomas's threat. On February 14, 2013, shortly after 

the BMC plea hearing, Dr. Andrew Lenhardt, Adams's primary care 

physician, first prescribed Temazepam, a medication used for 

sleep problems related to psychological reasons, for Adams. 

 

9 We do, however, conclude that Adams's theory that the 

agency should have instituted an employee keystroke monitoring 

program similar to Safety's was properly dismissed due to the 

lack of expert testimony on industry standards and of any 

triable issue of proximate causation. See Hebert v. Enos, 60 

Mass. App. Ct. 817, 820-822 (2004).
17

There was also expert testimony submitted by Adams from Dr. 

Stephanie Sydney, a licensed clinical psychologist, that Adams's 

trauma symptoms included repeated nightmares about the phone 

call (that could not have predated it), high anxiety, intrusive 

thoughts, racing hot flushes, and feelings of detachment. 

2. Denial of motion to amend.

10 After discovering that the 

Congress Agency had actual knowledge of Burgos's 2010 arrest, 

Adams moved to amend his complaint, seeking to revive the four 

dismissed claims and to add a new Federal law claim. The 

specific factual allegations in the proposed amended complaint 

would have supported a claim for negligent retention and 

supervision if included in the original complaint. Here, our 

conclusion that summary judgment should not have entered 

obviates much of the judge's reasoning for the denial of the 

motion to amend. Given our conclusion that the agency owed a 

legal duty to Adams, the denial of Adams's motion to amend on 

 

10 To the extent the agency challenges the adequacy of the 

record, the supplemental appendix permits us to conduct a 

meaningful review. We reach the merits.
18

the grounds of futility is rendered moot.

11 See Lipsitt v. 

Plaud, 466 Mass. 240, 254-255 (2013).12

However, we discern no abuse of discretion with respect to

the judgment on the remaining common law and statutory claims. 

See North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 

Mass. 852, 871-872 (2009). As to these claims, the first 

amended complaint, like the original complaint, contained 

insufficient factual allegations to plausibly suggest 

entitlement to relief. See Jessie v. Boynton, 372 Mass. 293, 

295 (1977); Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 

(2008) (Iannacchino).

Specifically as to Adams's G. L. c. 93A claim, to the 

extent it was predicated on negligence alone, it necessarily 

failed. See Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 

165, 176-177 (2013) (Klairmont) ("in the absence of conduct that 

qualifies as unfair or deceptive, a negligent act or negligent 

acts, alone, do not violate [G. L.] c. 93A"). The other alleged 

basis for c. 93A relief was the agency's failure "to meet the 

 

11 The judge noted that Adams's motion to amend his 

complaint "might be considered unduly delayed or dilatory" but 

found the futility of the amendment to be determinative. As 

the motion was not decided based on delay, we do not address the 

issue here.

12 In light of our resolution of Adams's challenge to the

order denying his motion to amend that sought to reinstate the 

dismissed claims, see infra at - , we need not review 

the order allowing the motion to dismiss those claims.
19

Commonwealth's standards regarding the protection of 

confidential personal information for residents of the 

Commonwealth." In certain circumstances, a statutory or 

regulatory violation may rise to the level of an unfair or 

deceptive act or practice for purposes of a c. 93A claim. See 

Klairmont, supra at 173-177. The "standards" to which Adams 

refers in his proposed amended complaint are not identified. To 

the extent that the claim was based on the agency's alleged 

violations of G. L. c. 93H and the regulations promulgated 

thereunder, we conclude, as did the motion judge, that the claim 

was factually insufficient. See G. L. c. 93H, §§ 1-6, added by 

St. 2007, c. 82, § 16 (governing data breaches) and 201 Code 

Mass. Regs. §§ 17.00-17.05 (standards for the protection of the 

personal information of residents of the Commonwealth). 

As the motion judge noted, the complaint did not allege 

that Burgos accessed "personal information" as that term is 

specially defined in c. 93H, and did not identify the required 

safeguards and procedures that the agency failed to employ.13 

See 201 Code Mass. Regs. §§ 17.03 (standards for protecting 

personal information) and 17.04 (computer system security 

requirements). Compare the much more specific allegations of 

government safety standard noncompliance found insufficient in 

Iannacchino, supra at 626-633. As Adams had not alleged 

 

13 See footnote 5, supra.
20

sufficient facts to state a plausible c. 93A claim on any 

theory, we discern no abuse of discretion in the denial of so 

much of the motion seeking to reinstate count V.

14

Conclusion. The order allowing the agency's motion for 

summary judgment with respect to count IV is vacated. The order 

denying Adams's motion to amend his complaint is vacated with 

respect to counts II and III of the proposed first amended 

complaint and is otherwise affirmed. The case is remanded for 

further proceedings consistent with this opinion.

So ordered.

 

14 In addition to the defective pleading, Adams's one new 

claim for violation of DPPA failed for the added reason that the 

agency, as matter of law, could not be held vicariously liable 

for the tortious acts of Burgos. Her improper disclosure of 

that information to Thomas and its use in a criminal conspiracy 

were plainly acts committed outside the scope of her employment. 

See Lev, supra at 238-239. The fact that plaintiff shifted his 

theories of liability repeatedly may have contributed to the

result below. This loss in the trial court and delay in 

resolution of the matter should be a cautionary note for such 

strategy.