Cox v. Evansville Police Dep't, Supreme Court Case No. 18S-CT-447

• Docket Nº: Supreme Court Case No. 18S-CT-447
• Citation: 107 N.E.3d 453
• Case Date: September 13, 2018
• Court: Supreme Court of Indiana

107 N.E.3d 453

Jennifer COX, Appellant (Plaintiff)
v.
EVANSVILLE POLICE DEPARTMENT and The City of Evansville, Appellees (Defendants)

Babi Beyer, Appellant/Cross-Appellee (Plaintiff)
v.
The City of Fort Wayne, Appellee/Cross-Appellant (Defendant)

Supreme Court Case No. 18S-CT-447

Supreme Court of Indiana.

Argued: February 15, 2018
Filed September 13, 2018

ATTORNEYS FOR APPELLANT JENNIFER COX: James H. Young, John P. Young, Young & Young, Indianapolis, Indiana

ATTORNEYS FOR APPELLEES EVANSVILLE POLICE DEPARTMENT AND THE CITY OF EVANSVILLE: Keith W. Vonderahe, Robert L. Burkart, Ziemer, Stayman, Weitzel & Shoulders, LLP, Evansville, Indiana

ATTORNEYS FOR APPELLANT/CROSS-APPELLEE BABI BEYER: Edward E. Beck, John S. Bloom, Shambaugh, Kast, Beck & Williams, LLP, Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE/CROSS-APPELLANT THE CITY OF FORT WAYNE: Carolyn M. Trier, Trier Law Office, Fort Wayne, Indiana

ATTORNEYS FOR AMICI CURIAE ACCELERATE INDIANA MUNICIPALITIES AND THE INDIANA MUNICIPAL LAWYERS ASSOCIATION: Jo Angela Woods, Indiana Association of Cities and Towns d/b/a Accelerate Indiana Municipalities, Indianapolis, Indiana, Donald E. Morgan, Office of Corporation Counsel, Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION: Joseph N. Williams, James A. Piatt, Anne M. Lowe, Riley Williams & Piatt, LLC, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-1610-CT-2299

Rush, Chief Justice

107 N.E.3d 456

Two on-duty police officers—one in Fort Wayne and one in Evansville—sexually assaulted women, who then brought civil actions against the officers' city employers. We address two theories of employer liability: (1) the scope-of-employment rule, traditionally called respondeat superior , and (2) the rule's common-carrier exception, which imposes a more stringent standard of care on certain enterprises. We hold that the cities may be liable under the scope-of-employment rule and that the exception does not apply.

Resounding in our decision today is the maxim that great power comes with great responsibility.¹ Cities are endowed with the coercive power of the state, and they confer that power on their police officers. Those officers, in turn, wield it to carry out employment duties—duties that may include physically controlling and forcibly touching others without consent. For this reason, when an officer carrying out employment duties physically controls someone and then abuses employer-conferred power to sexually assault that person, the city does not, under respondeat superior , escape liability as a matter of law for the sexual assault.

We thus affirm the denial of summary judgment to the City of Fort Wayne on the respondeat superior issue. In doing so, we clarify when an officer's tortious acts

107 N.E.3d 457

will fall within the scope of employment, making the city liable.

We also hold that the relationships between the cities and the women in these cases do not fall within the common-carrier exception, which we decline to extend. We therefore affirm the trial courts' grants of summary judgment to the cities on the common-carrier theory.

Facts and Procedural History

These consolidated appeals concern similarly disturbing tales from two cities—Evansville and Fort Wayne. In each city, an on-duty police officer sexually assaulted a person he was dispatched to investigate.

In Evansville, Jennifer Cox and Debbie Jackson had been drinking and arguing at Jackson's apartment when Cox hit Jackson. Jackson called the Evansville Police Department, which dispatched two officers. Before either officer arrived to the scene, one of them—Officer Martin Montgomery—called off the other to handle the situation alone.

When Officer Montgomery arrived at Jackson's apartment, he told Jackson that she could have Cox stay with her or he would take Cox home. Jackson chose the second option.

Officer Montgomery then drove Cox home and reported to dispatch that he had "cleared the run," meaning he was available for another one. He left his patrol car running and accompanied Cox to her door. When she opened it and went inside, Officer Montgomery followed her in, without invitation or force. Cox thought he was "just being an [o]fficer, making sure I got in alright knowing I was drinking that night."

Once inside, Officer Montgomery closed the door and asked Cox if she wanted to have oral sex with him. She said no. Officer Montgomery then pushed her down toward his genital area; removed his gun belt; unzipped his pants; and coerced her into oral, anal, and vaginal sex. He then zipped up his pants, reattached his gun belt, and left. For these acts, he was convicted of two counts of felony criminal deviate conduct.

Unfortunately, Officer Montgomery's misconduct is not the only sexual assault by an on-duty Indiana police officer that we must address today.

In Fort Wayne, Babi Beyer became heavily intoxicated and tried to drive home from a restaurant. Shortly before 2:00 a.m., the Fort Wayne Police Department dispatched three officers to her vehicle, which was stopped in a road. The officers found Beyer in the driver's seat, intoxicated and teetering in and out of consciousness.

The responding officers put Beyer into Officer Mark Rogers's car since he was assigned to operating-while-intoxicated patrol and enforcement. Officer Rogers then drove Beyer to the Allen County lock-up facility for a breath test. Before Beyer got out of the car at the facility, she began vomiting, so Officer Rogers drove her to the hospital.

At the hospital, medical personnel traded Beyer's vomit-covered clothing for scrubs and performed a blood test. The test showed an alcohol level of .2555—too high for Beyer to leave by herself. But because Beyer would be released into police custody, the attending physician discharged her to be taken to lock-up, and Officer Rogers walked her to his patrol car.

Before driving away from the hospital, Officer Rogers handcuffed Beyer and put her in the back seat of his patrol car. When Beyer complained that the handcuffs were painful, Officer Rogers loosened them, fondled her breast, and told her she was "hot."

107 N.E.3d 458

He then drove around for a while and parked in a dark, quiet area. He got out of the car, grabbed Beyer by the arm, and "helped" her out of the back seat. She was still wearing hospital scrubs—no underwear, no shoes. Officer Rogers was in full police uniform, weapon belt included. He walked Beyer across grass, twigs, and stones to a bench. There, he touched her breasts, put her hands on his penis, and raped her. He then took her back to the car, drove to a parking lot, and locked Beyer inside a crime scene van, where she lost consciousness. Officer Rogers later drove Beyer home and reported that he had completed the run—nearly four hours after being sent to Beyer's stopped car.

The State brought criminal charges against Officer Rogers, who pleaded guilty to three felonies: official misconduct, sexual misconduct, and rape.

Each woman sued the respective assaulting officer's city employer.

Cox sued the City of Evansville and the Evansville Police Department (collectively, "Evansville") in federal district court. The court dismissed the action without prejudice, see Cox v. Evansville Police Dep't , No. 3:10-cv-00156-SEB-WGH, 2012 WL 2317074 at *1 (S.D. Ind. June 18, 2012), and Cox filed a complaint in state court. After she specified three theories of liability—the general rule of respondeat superior ; the common-carrier exception; and negligent hiring, retention, and supervision—Evansville moved for summary judgment, which the trial court granted on the common-carrier theory. Cox then filed this interlocutory appeal of the court's decision that the common-carrier exception does not apply.

Beyer similarly sued the City of Fort Wayne, claiming vicarious liability under the doctrine of respondeat superior and negligent hiring, training, supervision, and retention. After Fort Wayne moved for summary judgment, Beyer added a common-carrier theory. The trial court allowed Fort Wayne to respond to the addition, and then granted Fort Wayne summary judgment on the common-carrier theory and on the negligent hiring, training, supervision, and retention claim, but not on the issue of liability under respondeat superior . Fort Wayne and Beyer each filed an interlocutory appeal: Fort Wayne on liability under respondeat superior , and Beyer on the common-carrier exception.

The Indiana Court of Appeals accepted and consolidated both cases' appeals. Cox v. Evansville Police Dep't , 84 N.E.3d 678, 680 (Ind. Ct. App. 2017).² It then reversed the trial courts' orders granting summary judgment to Evansville and Fort Wayne ("the cities") on the common-carrier issue and affirmed the denial of summary judgment to Fort Wayne on respondeat superior liability. Id.

The cities each petitioned to transfer. We now grant both petitions, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

We address two questions of law raised in motions for summary judgment. First, does Fort Wayne...