from the Vanderburgh Circuit Court The Honorable David D.
Kiely, Judge Trial Court Cause No. 82C01-1209-CT-479.
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.
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
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
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.
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.
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.
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
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.
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. 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, " 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.
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.
v. Fort Wayne
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.
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.
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.
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.
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. 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
A. Vicarious Liability Under the Doctrine of Respondeat
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 ...