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Zander v. Orlich

United States Court of Appeals, Seventh Circuit

October 30, 2018

Rebecca Zander, Plaintiff-Appellant,
v.
Samuel Orlich, Jr., et al., Defendants-Appellees.

          Argued September 14, 2018

          Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:14-cv-00400-PRC - Paul R. Cherry, Magistrate Judge.

          Before BAUER, HAMILTON, and SCUDDER, Circuit Judges.

          BAUER, Circuit Judge.

         Rebecca Zander filed negligence claims against John Buncich, in his official capacity as Sheriff of Lake County, Indiana, as well as intentional tort and civil rights claims against deputy sheriff Samuel Orlich, Jr. The District Court had jurisdiction over Zander's action for damages for Orlich's violation of the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983, and supplemental jurisdiction over her related state claims against Orlich and Buncich pursuant to 28 U.S.C. § 1367.

         Zander sued Buncich seeking to hold him vicariously liable for an assault by Orlich. The district court granted Buncich summary judgment on Zander's respondeat superior claim, holding that Orlich was not acting within the scope of his official duties. The court granted summary judgment to Buncich on Zander's negligent hiring, training, and retention claim, because Zander presented no evidence that Buncich knew of the necessity of exerting control over Orlich to prevent his sexual misconduct. Zander appeals the order granting summary judgment for Buncich. After summary judgment was granted for Buncich, Zander's claims against Orlich were tried to a jury. Zander prevailed, and the jury awarded her $100, 000 in compensatory damages, $275, 000 in punitive damages, and attorneys fees and costs totaling $97, 267.80.

         For the reasons that follow, we reverse the summary judgment for Buncich as to Zander's respondeat superior claim, and affirm as to the negligent hiring claim.

         I. MATERIAL FACTS

         On September 19, 2013, Orlich was working as a deputy for the Lake County, Indiana, Sheriff's Department (LCSD). He was wearing his LCSD uniform, and armed with a Glock .40 caliber gun. That same day, Zander's husband called county dispatch to report a domestic disturbance at his residence on Georgia Street. Orlich responded to the call.

         After arriving at the scene, Orlich ordered Zander to leave the Georgia Street home and go to her other house on White Oak Avenue. Zander told Orlich that she could not go to the White Oak Avenue house because the furnace and electric panel had been dismantled.

         Officer Michael Miller was also at the scene as Orlich's supervising officer. Officer Miller gave Orlich permission to take Zander to the White Oak Avenue house. Miller and Orlich dispute whether Miller gave Orlich permission to enter the White Oak Avenue house to make repairs.

         After arriving at the White Oak Avenue house, Orlich and Zander went to the basement, and Orlich turned on the electricity and water heater. Orlich was unable to fix the furnace. Before leaving, Orlich told Zander that she could not return to the Georgia Street address for several hours. Orlich left, and Zander closed the house door.

         About ten or fifteen minutes after Orlich left the house, Zander exited the bathroom and found Orlich standing there naked. He attacked Zander sexually, committing unspeakable acts, the details of which are unnecessary to repeat in the record here.

         When Orlich got up to put his clothes back on, Zander crawled to the bathroom and locked the door. Orlich banged loudly on the bathroom door and said that he could make Zander's life very difficult if she said anything about what had happened. Orlich also told Zander that she could not stay in the White Oak Avenue ...


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