Argued: February 15, 2018
from the Vanderburgh Circuit Court, No. 82C01-1209-CT-479 The
Honorable David D. Kiely, Judge
from the Allen Superior Court, No. 02D01-1506-CT-247 The
Honorable Nancy Eshcoff Boyer, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
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,
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-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.
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.
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 will fall
within the scope of employment, making the city liable.
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.
and Procedural History
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.
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.
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.
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."
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
Officer Montgomery's misconduct is not the only sexual
assault by an on-duty Indiana police officer that we must
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.
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.
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.
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
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.
State brought criminal charges against Officer Rogers, who
pleaded guilty to three felonies: official misconduct, sexual
misconduct, and rape.
woman sued the respective assaulting officer's city
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.
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.