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Cox v. Evansville Police Department

Court of Appeals of Indiana

September 22, 2017

Jennifer Cox, Appellant-Plaintiff,
Evansville Police Department and The City of Evansville, Appellees-Defendants

         Appeal from the Vanderburgh Circuit Court The Honorable David D. Kiely, Judge Trial Court Cause No. 82C01-1209-CT-479.

         Interlocutory Appeal from the Allen Superior Court The Honorable Nancy Eshcoff Boyer, Judge Trial Court Cause No. 02D01-1506-CT-247.

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

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

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

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

          BAKER, JUDGE.

         [¶1] Two women were sexually assaulted by police officers while those officers were on duty and engaged in certain activities authorized by their employers. The two women filed lawsuits against their respective municipalities, raising claims of vicarious liability for the officers' negligence by virtue of respondeat superior. Normally, a respondeat superior claim requires a showing that the employee was acting in the scope of employment when committing the alleged tort. There is an exception to that rule, however, when, under certain circumstances, the employer has assumed a non-delegable duty of care to the victim. Both women argue that this exception applies to their respective cases; both trial courts granted summary judgment in favor of the municipalities on this issue. Both women appeal these rulings.

         [¶2] With respect to Jennifer Cox, we reverse and remand for further proceedings. With respect to Babi Beyer, we reverse the trial court's ruling and remand for further proceedings. Additionally, the City of Fort Wayne cross-appeals the trial court's denial of Fort Wayne's summary judgment motion on Beyer's respondeat superior claim. We affirm that portion of the trial court's order.


         [¶3] The two cases included in this appeal are wholly unrelated. They have different parties and different facts and stem from different parts of the state. They have been consolidated on appeal, however, because they share a common issue of law.

         Cox v. Evansville

         [¶4] On March 1, 2009, Cox was with her girlfriend, Debbie Jackson, at Jackson's house in Evansville. Cox and Jackson began drinking and arguing, and shortly after 4:00 a.m., Jackson called the Evansville Police Department (EPD). EPD protocol requires that two officers respond to a domestic violence call, though occasionally one officer will call back to dispatch and tell the other officer not to proceed if the first officer has arrived at the scene and determines that he can handle it alone.

         [¶5] After Jackson called EPD, Officer Martin Montgomery and Officer Kathy Winters were dispatched to the scene. Before Officer Montgomery arrived at the scene, he called off Officer Winters and proceeded to the scene alone. At 4:12 a.m., Officer Montgomery arrived at Jackson's home. Jackson gave the officer Cox's car keys, and Officer Montgomery instructed Cox to get into his marked patrol vehicle. She complied, and he drove her home.

         [¶6] Officer Montgomery and Cox arrived at her apartment around 4:26 a.m., and at 4:28 a.m., he radioed EPD dispatch that he had "cleared" the run and was available for another dispatch run. He then followed Cox into her apartment and closed the door. Officer Montgomery took off his gun belt and coerced Cox to perform sexual acts on him, including oral, vaginal, and anal sex. Afterwards, he put his gun belt back on and left the apartment. Officer Montgomery was eventually found guilty of criminal deviate conduct and received a twelve-year sentence.

         [¶7] Originally, Cox filed a complaint in federal district court that included a state law negligence claim. On June 18, 2012, that complaint was dismissed without prejudice to Cox's right to refile the state law negligence claim in state court. On September 12, 2012, Cox filed a complaint against EPD and the City of Evansville (Evansville). In relevant part, the complaint raises a negligence claim, alleging that Officer Montgomery assaulted her in the course and scope of his employment for Evansville and that Evansville and EPD are liable to Cox. Cox provided three theories of liability: (1) respondeat superior; (2) non-delegable duty exception to respondeat superior; and (3) negligence in Officer Montgomery's hiring, retention, and supervision. Cox eventually withdrew the third theory of liability.

         [¶8] On May 7, 2015, EPD filed a motion to strike Cox's theory of liability based on the non-delegable duty exception to respondeat superior. On May 15, 2015, Evansville and EPD filed a motion for summary judgment.[1] On September 1, 2015, Cox filed a motion for partial summary judgment. Following a hearing on all pending motions, on August 4, 2016, the trial court granted Evansville and EPD's motion to strike and partially granted their motion for summary judgment with respect to the theory of liability based on the non-delegable duty, or "common carrier, "[2] exception. In relevant part, the trial court found as follows:

[T]he common carrier exception to the doctrine of respondeat superior has no application to the facts of this case. The EPD had no duty to Plaintiff once Officer Montgomery "cleared the run, " Plaintiff exited the police vehicle and Plaintiff entered her apartment.

         Cox Appealed Order p. 1. The trial court denied Cox's motion for partial summary judgment. Cox now brings this interlocutory appeal of the trial court's ruling that the non-delegable duty exception does not apply to this case.

         Beyer v. Fort Wayne

         [¶9] On September 1, 2013, at approximately 1:42 a.m., several Fort Wayne Police officers were dispatched to Lima Road. When they arrived at the location, they observed Beyer, who initially appeared to be asleep, in a vehicle that was stopped in the southbound lane of the road. Upon further observation, the officers determined that she was intoxicated. They removed her from her vehicle and placed her in the custody of Officer Mark Rogers, who put handcuffs on her and escorted her to the back seat of his police vehicle.

         [¶10] Officer Rogers drove Beyer to the Allen County Lockup. When they arrived, she began vomiting, and Officer Rogers decided to take her to the hospital. She was admitted to the emergency room, where hospital employees drew blood. At 3:31 a.m., the blood draw results showed a blood alcohol level of .2555. The hospital would not have released Beyer in her condition had she not been in the custody of the police, but it did so around 4:20 a.m. because she was in custody and could be watched by police. Hospital employees informed Officer Rogers that Beyer needed to be observed for six hours and should sleep on a mattress on the floor.

         [¶11] Officer Rogers again placed Beyer in the backseat of his vehicle outside the hospital. As the officer was starting the vehicle, Beyer complained that the handcuffs were painful, at which time he got out of the car, opened her door, and, while she was still handcuffed, fondled her breasts and then loosened her handcuffs. Officer Rogers got back into the car and commented on Beyer's attractiveness.

         [¶12] Because of her level of intoxication, Beyer slipped in and out of consciousness, but recalls that after driving around for some period of time and making several stops, Officer Rogers stopped the vehicle in an area unknown to her. He grabbed Beyer by the arm and pulled her from the vehicle, walking her barefoot through a grassy area with twigs and stones, and directing her to a bench. Officer Rogers again sexually molested her and proceeded to have sexual intercourse with her. He was armed and in full uniform during the assault. Afterwards, Officer Rogers drove her to a parking lot, where he removed her from his vehicle and placed her in a police crime scene van. He then drove her home in the van. At 5:29 a.m., Officer Rogers reported that he had completed the run. On August 28, 2014, Officer Rogers pleaded guilty to three felonies: sexual misconduct, official misconduct, and rape.

         [¶13] On June 24, 2015, Beyer filed a complaint against Officer Rogers and the City of Fort Wayne (Fort Wayne), alleging liability against Fort Wayne based on two theories: respondeat superior and the non-delegable duty exception.[3] On January 14, 2016, Fort Wayne filed a motion for summary judgment. On August 23, 2016, the trial court partially granted the motion for summary judgment with respect to the theory of the non-delegable duty exception and otherwise denied it. In relevant part, the trial court held as follows:

A. Vicarious Liability Under the Doctrine of Respondeat Superior
Here it is undisputed that some of Rogers' acts were within the scope of his employment, i.e., taking Beyer into custody, handcuffing her, transporting her to lockup for a breath test, transporting her to St. Joseph Hospital for a blood draw, and then transporting her back to lockup. Therefore, some of Rogers' acts were authorized by Fort Wayne. . . .
. . . [H]ere, it is clear that Rogers' position as the OWI police officer gave him the means and control over individuals who were intoxicated. . . .
Some of Rogers' actions were at least initially authorized. Whether his actions were within the scope of employment is a genuine issue of material fact to be determined by the Jury.
B. [Non-Delegable Duty Exception]
Indiana recognizes the common carrier exception to the Doctrine of Respondeat Superior. . . . Liability is imposed because of the employer's assumption of responsibility for its passengers' safety. Under the non-delegable duty exception, the employer can be held liable for any violation by its employee of the employer's non-delegable duty to protect the individual, regardless of whether the act was within the scope of employment.
. . . Fort Wayne argues . . . that the non-delegable duty exception is a narrow one. Application to a police department would result in the strict liability of a municipality for its officers' acts.
There are no Indiana cases which have extended the common carrier exception to police officers.
The Court finds no genuine issues of material fact; and, as a matter of law, enters judgment for Fort Wayne and against Beyer on the issue of liability under the ...

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