Indiana’s Common Carrier Exception to Respondeat Superior

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by: Colin E. Flora

     This week we turn our attention to a decision from late September that I’ve been trying to find time to cover for just over two months now. That case is Cox v. Evansville Police Department. Admittedly, to say “that case” is a bit of a misnomer as it was actually a consolidation of two cases the posed the same legal question. The legal question was whether the acts of an employee that are not within the scope of employment may, nevertheless, trigger the doctrine of respondeat superior because the employer owed a non-delegable duty to the injured person.

     Unless you are a newcomer to the Hoosier Litigation Blog, you’ve likely encountered one of our prior discussions about respondeat superior. In general terms, it is a doctrine that holds an employer liable when the employee is performing an action at the behest of his employer. Generally speaking, when an employee takes an action that does not serve the interest of the employer, then the doctrine does not attach liability beyond the employee. As we’ve discussed, this usually extends to intentional torts, which would include crimes.

     In light of that general view, you can scarcely blame the two trial courts who each ruled that respondeat superior did not apply in the respective cases that lead to Cox. Both cases were brought against police departments by victims who were sexually abused by police officers. You may notice that I did not say “allegedly.” The officer in the first case was sentenced to twelve years “criminal deviate conduct,” and the officer in the second case pleaded guilty to “sexual misconduct, official misconduct, and rape.”

     Clearly, the actions of the officers were not in furtherance of their duties as officers. So, traditionally, their actions would fall outside the scope of respondeat superior. But that is where an exception comes in. As the Court of Appeals explained, quoting an Indiana Supreme Court decision:

The doctrine of respondeat superior “imposes liability, where none would otherwise exist, on an employer for the wrongful acts of his employee which are committed within the scope of employment.” Under certain circumstances, however, there is an exception to the requirement that the employee’s actions must have been committed within the scope of employment: “where an employer has assumed a non-delegable duty to protect a person and his employee inflicts injury on that person, the doctrine of respondeat superior will not interdict the imposition of liability on the employer even if the wrongful act was outside the scope of employment.”

     Thus, the question is whether there was a non-delegable duty at issue. According to the victims and the Court of Appeals, there was:

Historically, this exception was applied to common carriers, and is often referred to as the “common carrier exception.” A “common carrier” is “[a] carrier[, such as a railroad or an airline,] that is required by law to transport passengers or freight, without refusal, if the approved fare or charge is paid.” Our Supreme Court has observed that “Indiana has identified the principles underlying its adoption of the exception, and, in fact, has extended it to reach enterprises other than common carriers.”

The [Indiana Supreme] Court explained the doctrine as follows:

The imposition of liability under the common carrier exception is premised on the control and autonomy surrendered by the passenger to the carrier for the period of accommodation. This Court in Dickson stated that an enterprise which has induced an individual to give over the control of his personal comfort and safety to its care assumes a special duty to protect him from injury, particularly from its own employees.

Under respondeat superior, employer liability is coextensive with the powers and advantages engendered by the employment relationship. Because liability is predicated conceptually on the employer’s ability to command or control his employee’s acts, an employer can be held responsible only for those acts of his employee which are committed within the scope of their employment relationship. Under the common carrier exception to respondeat superior, however, the range of employee activities deemed to be under the employer’s dominion is irrelevant. Liability is predicated on the passenger’s surrender and the carrier’s assumption of the responsibility for the passenger’s safety, the ability to control his environment, and his personal autonomy in terms of protecting himself from harm; therefore, the employer can be held responsible for any violation by its employee of the carrier's non-delegable duty to protect the passenger, regardless of whether the act is within the scope of employment.

Unlike other jurisdictions, “Indiana’s common carrier exception . . . is premised on the ceding of power to ensure one’s safety and protection from an individual which purports to provide it, and the exception, again by contrast [with other jurisdictions], has been applied to enterprises other than common carriers.”

     That Indiana Supreme Court decision was a good guidepost for the facts of the two cases before the Court of Appeals. That case held that the non-delegable duty owed under the common carrier exception extended to a residential children’s center whose employee, a nurse’s aide, sexually assaulted a child resident. A similar result was reached in Robins v. Harris, which extended the exception to a jail guard who sexually assaulted an inmate. And in Interim Healthcare of Fort Wayne, Inc. v. Moyer, the Court of Appeals held the exception applied to a home healthcare worker who was not supposed to administer medication but negligently gave a child with cerebral palsy a large injection of insulin.

     But not every appellate decision has been as quick to expand the exception. The Seventh Circuit, in Hansen v. Board of Trustees of Hamilton Southeastern School Corporation, declined to extend it where “a teacher and assistant band director of an Indiana public high school engaged in an improper sexual relationship with a student.” And the Court of Appeals rejected application in L.N.K. v. St. Mary’s Medical Center:

In this case, sixteen-year-old L.N.K. entered a mental health and addiction treatment center on an inpatient basis. While L.N.K. resided at the center, a center employee kissed and hugged her on several occasions. After L.N.K. was discharged from the center, the same employee took her on a date and engaged in sexual intercourse with her. When L.N.K. returned to the center for outpatient appointments, the employee frequently kissed her and would leave with her after his shift was done. Three months after leaving the inpatient program, L.N.K. became pregnant by the employee.

     Notably, the author of the Cox, Robins, and L.N.K. was Judge Baker. He was also on the panel in Moyer, concurring in result with a separate opinion. So few are more well-suited to synthesizing the cases, which he dutifully did:

Based on all of the above caselaw, we can sum up Indiana’s rules regarding the non-delegable duty exception to respondeat superior as follows. First, an entity assumes a non-delegable duty of care to its patrons when the patrons must surrender their control and autonomy to the entity while they are in its care. Second, the determination of whether those patrons have surrendered their control and autonomy to the entity is based upon a number of factors, including the entity’s assumption of the responsibility for their safety, the patrons’ ability to control their environment, and the patrons’ ability to protect themselves from harm. Third, the focus of this analysis is the nature of the relationship between the entity and the patron at the time the tort was allegedly committed. Fourth, the question of whether a non-delegable duty exists is a matter of law.

Applying the test to the two cases before it, the Court of Appeals concluded that there was a non-delegable duty.

     I think the court reached the correct and excellently reasoned decision. But, you may notice in the citations below that every single case that we have discussed, with the exception of Hansen from the Seventh Circuit, is a case where transfer to the Indiana Supreme Court was sought. In most instances, it was denied. The transfer briefing has completed in Cox and only time will tell whether the Indiana Supreme Court takes the matter up. My guess is that it will not and if it does, it will do so only to cement the well-articulated conclusions of the Court of Appeals.

     Join us again next time for further discussion of developments in the law.

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*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.