Rebecca Zander v. Samuel Orlich, Jr. , 907 F.3d 956 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2792
REBECCA ZANDER,
Plaintiff-Appellant,
v.
SAMUEL ORLICH, JR., et al.,
Defendants-Appellees.
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.
ARGUED SEPTEMBER 14, 2018 — DECIDED OCTOBER 30, 2018
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
2 No. 17-2792
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.
No. 17-2792 3
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 house. Zander entered Orlich’s squad
car, and Orlich drove her to her friend's house.
4 No. 17-2792
II. ANALYSIS
Zander brings Indiana state law tort claims against Buncich
in his capacity as Sheriff. Zander asserts that Buncich is
vicariously liable for Orlich's sexual battery and false imprison-
ment pursuant to the doctrine of respondeat superior and that
Buncich negligently hired, trained, and retained Orlich.
Because resolution of Zander’s claims depends on Indiana law,
the Court must apply Indiana law as the Indiana Supreme
Court would apply it. Home Valu, Inc. v. Pep Boys, 213 F.3d 960,
963 (7th Cir. 2000).
We review the district court’s grant of summary judgment
de novo, drawing all reasonable inferences in favor of the party
opposing the motion. Simmons v. Chicago Bd. of Educ., 289 F.3d
488, 491–92 (7th Cir. 2002). Summary judgment should be
granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates
the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “Summary judgment is appropriate when no
material fact is disputed and the moving parties are entitled to
judgment as a matter of law, meaning that no reasonable jury
could find for the other party based on the evidence in the
record.” Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).
No. 17-2792 5
A. Respondeat Superior
Under Indiana law, vicarious liability will generally be
imposed upon an employer under the doctrine of respondeat
superior where the employee has inflicted harm “while acting
within the scope of employment.” Barnett v. Clark, 889 N.E.2d
281, 283 (Ind. 2008). “[I]n order for an employee’s act to fall
‘within the scope of employment,’ the injurious act must be
incidental to the conduct authorized or it must, to an apprecia-
ble extent, further the employer's business.” Id. at 283–84.
Whether an act falls within the scope of employment is
generally a question of fact. See Knighten v. E. Chi. Hous. Auth.,
45 N.E.3d 788, 794 (Ind. 2015). Where conduct involves both
“authorized acts unquestionably within the scope of employ-
ment” and “unauthorized acts unquestionably outside the
scope of employment” it should be sent to a jury. Stropes v.
Heritage House Children's Ctr., 547 N.E.2d 244, 249–50 (Ind.
1989).
Liability can be imposed upon employers under respondeat
superior for the tortious or criminal acts of their employees. See,
e.g., Stropes, 547 N.E.2d at 250 (Ind. 1989) (employee assaulted
incapacitated patient); Southport Little League v. Vaughan, 734
N.E.2d 261, 268 (Ind. Ct. App. 2000) (equipment manager
molested participating youths). The Indiana Supreme Court
recently reiterated “[c]riminal conduct that violates an em-
ployee's official duties, an employer's express orders, or even
a most sacred professional duty may nevertheless be within the
scope of employment. The critical inquiry is whether the
tortious act arose naturally or predictably from the employ-
ment context.” Cox v. Evansville Police Dep't, 107 N.E.3d 453,
6 No. 17-2792
463–64 (Ind. 2018) (Summary judgment for police department
on respondeat superior claim reversed where police officer
sexually assaulted woman in his custody).
In Cox, decided after the district court's decision in this case,
the Indiana Supreme Court first spoke directly to the issue of
a police officer’s scope of employment when misusing
employer-conferred power and authority to commit a sexual
assault. Id. There, Officer Mark Rogers of Fort Wayne, Indiana,
was on an operating-while-intoxicated patrol when fellow
officers placed a severely intoxicated woman, Babi Beyer, into
Rogers’ squad car. Id. at 457. When Beyer began vomiting,
Rogers drove her to a hospital. Id. Beyer’s blood alcohol level
was too high for Beyer to leave by herself and the hospital
discharged her into police custody. Id. Rogers handcuffed
Beyer, drove her to a secluded location, and raped her. Id. at
458. Rogers pleaded guilty to official misconduct, sexual
misconduct, and rape. Id. Beyer sued the City of Fort Wayne
on a respondeat superior theory. Id. The Indiana Supreme Court
reversed the lower court’s order of summary judgment for
Fort Wayne, finding that a jury should determine whether
Rogers’ actions fell within the scope of employment. Id. at 464.
Generally, liability under a theory of respondeat superior
attaches for sexual assault only where the assault occurs
during physical, intimate contact required by a job. Doe v. Vigo
Cty., No. 17-3155, 2018 U.S. App. LEXIS 28005, at *7 (7th Cir.
Oct. 3, 2018) (citing Barnett v. Clark, 889 N.E.2d 281, 286 (Ind.
2008)). In Cox, however, the Indiana Supreme Court held that
“police officers' duties come with broad authority and intimi-
dating power that may affect vicarious liability” and because
No. 17-2792 7
of that broad authority “the range of acts for which a city may
be vicariously liable stretches far.” Cox, 107 N.E.3d at 460.
Because “police officers' employer-conferred power and
authority carry an inherent risk of abuse” the inquiry into
whether a police officer’s action fall within the scope of
employment consists of two questions: “First, did the officer
abuse employer-conferred power and authority in committing
the sexual assault? And second, did that abuse of power
and authority flow naturally or predictably from the
police-employment context in which it arose?” Id. at 464.
Here, the facts show that Orlich abused his employer-
conferred power when he assaulted Zander. Orlich responded
to the domestic disturbance call as a part of his regular duties,
cloaked in the authority of his uniform. He ordered Zander
into his squad car and transported her to the White Oak
address. Orlich directed her to remain at the property for
several hours, knowing she would be alone when he returned
minutes later. Additionally, Orlich’s uniform and sidearm were
present in the room while he assaulted Zander.
Orlich exploited “unique institutional prerogatives of his
police employment.” Id. Because of this connection, Buncich is
not entitled to summary judgment. Whether Orlich’s employ-
ment gave rise to the abuse of that power is a question of fact
for the jury. The jury must determine if Orlich’s “employment
activities naturally or predictably led to ‘his taking advantage
of the opportunity’ to commit sexual assault by abusing the
‘authority and proximity and privacy’ of his employment.” Id.
(citing West ex rel. Norris v. Waymire, 114 F.3d 646, 649 (7th Cir.
1997)).
8 No. 17-2792
The granting of summary judgment to Buncich is reversed
and remanded for further proceedings.
B. Negligent Hiring, Training, and Retention
Indiana law recognizes a cause of action against an em-
ployer for the negligent hiring, training, and retention of an
employee. See Hudgins v. Bemish, 64 N.E.3d 923, 925–26 (Ind.
Ct. App. 2016); Levinson v. Citizens Nat'l Bank of Evansville, 644
N.E.2d 1264, 1269 (Ind. Ct. App. 1994). The standard set forth
in Restatement (Second) of Torts § 317 governs these claims.
Hudgins, 64 N.E.3d at 925–26.
This general rule states that an employer has a duty to
exercise reasonable care to control his employee to prevent
harm against a person, but this duty exists only if the employer
“(i) knows or has reason to know that he has the ability to
control his [employee], and (ii) knows or should know of the
necessity and opportunity for exercising such control.”
Restatement (Second) of Torts § 317. Where a general duty has
been articulated, foreseeability is “the critical inquiry” in
determining whether the general duty applies to a particular
scenario. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).
To prevail, Zander must show that Buncich knew or had
reason to know that Orlich would act as he did and failed
to take appropriate action to prevent it. See Grzan v. Charter
Hosp., 702 N.E.2d 786, 793 (Ind. Ct. App. 1998) (Summary
judgment was reversed where question of fact remained about
supervisor’s knowledge of ongoing misconduct); see also Frye
v. American Painting Co., 642 N.E.2d 995, 999 (Ind. Ct. App.
1994) (Holding it was foreseeable that a painting company
employee with a history of burglary and arson would burglar-
No. 17-2792 9
ize and set fire to a house.); Sandage v. Board of Commissioners of
Vanderburgh County, 897 N.E.2d 507, 513–14 (Ind. Ct. App.
2008) (Holding it was not foreseeable that a parking company
employee with robbery and drug use history would drive to an
apartment and kill three people).
Here, there was no evidence that Buncich should have
known that Orlich was likely to assault a member of the public.
The record is absent of any suggestion that Orlich had a history
of this type of misconduct. The district court correctly granted
Buncich’s motion for summary judgment.
III. CONCLUSION
For the foregoing reasons, the order granting summary
judgment for Buncich is REVERSED on Zander’s respondeat
superior claim and REMANDED for further proceedings, and
AFFIRMED on Zander’s negligent hiring, training and reten-
tion claim.