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by: Colin E. Flora
In this post we return to a case that we discussed back in December, Cox v. Evansville Police Department. At that time, our focus was the decision from the Court of Appeals of Indiana, which held that two instances of sexual abuse by police officers exposed their respective police departments to liability under a theory of a non-delegable duty as common carriers. The need for the common carrier theory arose because the Court of Appeals had concluded that the general application of the doctrine of respondeat superior did not apply.
Convinced that the Court of Appeals had erred, the two defendant police departments—Fort Wayne and Evansville—sought transfer of the case to the Indiana Supreme Court for review. While the Indiana Supreme Court agreed to hear the case, it did not provide the outcome the defendants had in mind. Instead, although the Indiana Supreme Court ruled that the common-carrier exception to respondeat superior did not apply, the court did hold that the general rule of respondeat superior did.
The court began by asserting a familiar maxim with citation to three sources, including Spider-Man:
Resounding in our decision today is the maxim that great power comes with great responsibility. 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.
In order for the doctrine of respondeat superior to affix liability to an employer for the acts of its employee, the employee must be acting within the scope of his employment. Generally, actions that constitute intentional torts fall outside the scope of employment unless the employment is closely tied to the type of intentional tort at issue. A classic example is a bouncer roughing up a patron, because the nature of the bouncer’s employment is confrontational and physical interaction is contemplated by the employer.
Looking to cases from beyond the state, the Indiana Supreme Court recognized that “the variations in how courts have addressed sexual assaults by police officers reveal a common theme—that police officers’ duties come with broad authority and intimidating power that may affect vicarious liability. More specifically, because police officers’ employer- conferred power is so great, the range of acts for which a city may be vicariously liable stretches far.” The court further wrote:
Beyond question, cities do not authorize their police officers to sexually assault people. Indeed, sexual assault is directly opposed to police officers’ law-enforcement and community-caretaking functions. But, as we discuss below, that does not necessarily place an officer’s sexual assault outside the sphere of employee actions for which the city may be responsible.
With the matter presenting as a case of first impression for the state’s highest court, the analysis began by considering the underlying policies governing application of respondeat superior. The logic of the rule, the court explained, “springs from the employer’s control over its employees and their employment activities: the employer controls whom it hires, what employment duties it assigns, how it empowers employees to carry out those duties, and how it guards against harm arising from employment activities.” The rule extends not just to actions of employees under the control of the employer but also to “some risks inherent in the employment context. Ultimately, the scope of employment encompasses the activities that the employer delegates to employees or authorizes employees to do, plus employees’ acts that naturally or predictably arise from those activities.”Due to the expansive scope of respondeat superior, the doctrine can even “include actsthat the employer expressly forbids; that violate the employer’s rules, orders, or instructions; that the employee commits for self-gratification or self-benefit; that breach a sacred professional duty; or that are egregious, malicious, or criminal.”
The rationale for extending liability to such extremes is twofold: “First, it is equitable to hold people responsible for some harms arising from activities that benefit them. . . . Second, holding employers liable for those injurious acts helps prevent recurrence.”That is, “[s]ince employers have some control over the risk of injurious conduct flowing from employment activities, imposing liability on employers for that conduct encourages them to take preventive action.”
The court closed this portion of its analysis by articulating an approach to ascertaining the scope of employment in such contexts:
To be clear, the focus in determining the scope of employment “must be on how the employment relates to the context in which the commission of the wrongful act arose.” When tortious acts are so closely associated with the employment that they arise naturally or predictably from the activities an employee was hired or authorized to do, they are within the scope of employment, making the employer liable. But tortious acts are not within the scope of employment when they flow from a course of conduct that is independent of activities that serve the employer.
“Since the scope of employment depends on whether acts naturally or predictably arise from the employment context,” the next step was to utilize that analysis and apply it to the general scope of police officers’ employment:
Cities assign police officers law-enforcement and community- protection duties. Those duties come with state authority to detain, arrest, frisk, search, seize, and even use deadly force when necessary. Cities also outfit their officers with visible signs of their employer-conferred authority—a marked car, uniform, badge, and weapons—which officers use to carry out their employment duties. These duties frequently authorize and involve entering homes; detaining criminal suspects at gunpoint; placing suspects in handcuffs and into police vehicles; and subjecting them to forceful, nonconsensual, and offensive contact.
Investing officers with these considerable and intimidating powers comes with an inherent risk of abuse. When that abuse is a tortious act arising naturally or predictably from the police officer’s employment activities, it falls within the scope of employment for which the city is liable. Thus, if 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.
The court found that the underlying logic of respondeat superior supported that conclusion because the city benefits from the lawful use of power by its police such that it carries the equitable burden for the costs of the victims of abuse and because “because cities vest considerable power and authority in police officers, we want cities to exercise vigilance in hiring and supervising officers.” Importantly, the court urged that this analysis is driven by “the unique authority that cities vest in police officers . . . . As other courts have observed, ‘[t]he danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law.’”
With the analytical framework established, the question before the court was whether the Fort Wayne Police Department could be held liable in this specific instance. If you are wondering why the analysis did not apply to the Evansville Police Department the answer is because that particular case, though consolidated with the one from Fort Wayne, did not challenge application of respondeat superior on appeal, instead only focusing on the common-carrier exception.
Because the matter presented in the posture of summary judgment, the court articulated the question as “whether Officer Rogers’s sexual assault was so disconnected from his employment activities that a jury could not find that the assault arose naturally or predictably from the employment context.”
It goes without saying that sexual assault was not part of Officer Rogers’s assigned duties. Indeed, his misconduct was the antithesis of law enforcement and community protection. But as already explained, criminal conduct that violates an employee’s official duties, an employer’s express orders, or even a most sacred professional duty may nevertheless be within the scope of employment. . . .
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Here, the undisputed facts show that Officer Rogers abused his employer-conferred power and authority in sexually assaulting Beyer. Fort Wayne assigned Officer Rogers to operating-while-intoxicated enforcement and patrol, and—as part of this assignment—dispatched Officer Rogers to Beyer’s stopped vehicle. There, he and another officer placed Beyer into Officer Rogers’s car, and Officer Rogers took over the investigation. As part of his employment 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. The whole time, he was on duty, wearing his police uniform, and exhibiting the coercive power and authority that accompany his official duties.
In sum, Officer Rogers sexually assaulted Beyer by exploiting unique institutional prerogatives of his police employment.
Whether the actions are enough to satisfy the doctrine is a question of fact to be answered by the jury. The specific question to the jury will be did “Officer Rogers’s employment activities naturally or predictably led to ‘his taking advantage of the opportunity’ to commit sexual assault by abusing the ‘authority and proximity and privacy’ of his employment.” If the answer is yes, then the Fort Wayne Police Department can be held to answer for the injuries suffered by Officer Rogers’ crimes. Importantly, at least for this case, the court recognized that the specific question presented to the jury is not reflected in Indiana’s pattern civil jury instructions. Hopefully, that conclusion serves as a reminder for courts that the pattern instructions are meant to be a baseline template for common legal issues, not an exhaustive list of Indiana law on which jurors are to be instructed.
An interesting point not addressed in the decision that merits note is the interplay between the outcome of this case and the Indiana Tort Claims Act. The ITCA generally bars claims against individual government employees. There are, however, exceptions:
(c) A lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is:
(2) clearly outside the scope of the employee’s employment;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the allegations.
The reason that a claim could be brought both against the police department and the individual officer is because the department is held to answer for its employees and the officer’s actions were “criminal”—Officer Rogers “pleaded guilty to three felonies: official misconduct, sexual misconduct, and rape”—even though his conduct did not “clearly outside the scope of the employee’s employment.” But the provision does not require that each of the five exceptions be met, only one.
The court then turned to what had been the key focus of the court of appeals, which was whether the common-carrier exception applied to affix liability even if the officers were found to be acting outside the scope of their employment. While the respondeat superiorissue applied only to the Fort Wayne case, the common-carrier issue applied to both because, if it had worked, then it would have applied as a matter of law to both cases, instead of leaving the question of respondeat superiorin the Fort Wayne case for a jury to possibly decide in favor of the police department.
The court summarized the common-carrier exception:
Common-carrier liability is an exception to the general scope-of- employment rule because it does not depend on whether employees’ injurious conduct fell within the scope of employment. Instead, it depends on a special relationship between the employer and its patron. When the employer has assumed a common-carrier duty to exercise extraordinary care for its patrons, the employer can be liable whether or not an employee’s tortious acts were within the scope of employment.
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As its name implies, the common-carrier exception originated with common carriers. These commercial enterprises—such as shipowners, railroads, or airlines—“contract[ ] to transport passengers or goods for a fee” and are “generally required by law to transport freight or passengers without refusal if the approved fare or charge is paid.” The carrier assumes a nondelegable duty to exercise heightened, extraordinary care because of its special relationship to patron–passengers.
The special carrier–patron relationship emerges from a so-called “contract of passage” in which the carrier invites the public to pay a fare in exchange for safe passage. For those who accept that invitation to become patrons or guests, the carrier assumes a special, contractual duty of protection for the agreed-upon “period of accommodation.”As a result, the common-carrier exception does not extend to non-patrons, who have not entered a “contract of passage.”
True, we have applied the exception outside the common-carrier context—to innkeepers and their guests, theatrical managers and their patrons, and a children’s center and its severely disabled resident. So the exception is broader in Indiana than in many other states. But even in Indiana’s extended applications, the common-carrier nondelegable duty arises from the parties’ “contract of passage,” which “formed the basis of [the parties’] relationship.” The exception does not apply to relationships lacking that fundamental feature.
Whether the exception applies is a question of law decided by the court.
The court first recognized that it has “never [previously] held that cities owe a common-carrier duty to individuals who interact with on-duty police officers sent to investigate or help them.” Nor would it do so in this case: “After examining Indiana’s common-carrier exception, we conclude that the relationships between the cities and the women do not fit within the exception, which we decline to expand.”
While the same rationale underlies both the common-carrier exception and the doctrine of respondeat superior, application of the doctrines split based upon “the kind of control that underpins each theory . . . . Scope-of-employment liability derives from the employer’s control over its employees; common-carrier liability requires that a patron hand over control and autonomy to an enterprise or employer.” Due to the distinction, the two theories may overlap, such that both theories can simultaneously apply, but the common-carrier exception is narrower in scope.
At the core of the common-carrier exception is the “contract of passage.” And that is what the court found sufficiently lacking so as to defeat application of the exception:
Though the responding officers exercised control over Cox and Beyer, the women’s relationships with the cities were not contractual as required to invoke the common-carrier exception. Neither Cox nor Beyer entered a “contract of passage” with Evansville or Fort Wayne: there was no invitation, no acceptance of an invitation, no fare or other consideration, and no agreed-on period of accommodation. At most, Cox and Beyer entered a social contract of the sort contemplated by political theory. But the “contract of passage” that imposes a common-carrier duty is not so vast or philosophical. If it were, the exception would lose its common-carrier moorings and swallow the standard scope-of-employment rule.
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We therefore decline to extend Indiana’s common-carrier exception outside relationships formed by a “contract of passage.” Like other states that have addressed vicarious liability for on-duty police officers’ sexual assaults, we do not find the common-carrier exception necessary or suitable to impose appropriate responsibility on the cities. So we affirm the trial courts’ grants of summary judgment to the cities on the common- carrier theory.
Interestingly, the decision was not unanimous. The opinion indicates that Justices Massa, Slaughter, and Goff joined in the majority opinion, while Justice David joined only in the result without writing separately. Accordingly, we do not know exactly what issue Justice David thought meriting removing himself from the majority opinion, but, regardless, the conclusion of the other four members of the court now provides the definitive law of Indiana on the issue of sexual assault by on-duty police officers.
Join us again next time for further discussion of developments in the law.
Cox v. Evansville Police Dep’t, ---N.E.3d---, No. 18S-CT-477 (Ind. Sep. 13, 2018) (Rush, C.J.).
Cox v. Evansville Police Dep’t, 84 N.E.3d 678 (Ind. Ct. App. 2017), trans. granted, opinion vacated, ---N.E.3d---, No. 18S-CT-477 (Ind. Sep. 13, 2018).
Indiana Tort Claims Act, codified at Ind. Code §§ 34–13–3–1 et seq.
Colin E. Flora, Indiana’s Common Carrier Exception to Respondeat Superior, Hoosier Litig. Blog(Dec. 1, 2017).
Colin E. Flora, Employer Liability: Respondeat Superior Doctrine, Hoosier Litig. Blog(Apr. 26, 2013).
Colin E. Flora, Indiana: When Can an Employer be Liable for an Intentional Tort?, Hoosier Litig. Blog(Dec. 11, 2015).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.