Jennifer Cox v. Evansville Police Department and The City of Evansville Babi Beyer v. The City of Fort Wayne , 107 N.E.3d 453 ( 2018 )


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  •                                                              FILED
    Sep 13 2018, 12:07 pm
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    IN THE
    Indiana Supreme Court
    Supreme Court Case No. 18S-CT-447
    Jennifer Cox,
    Appellant (Plaintiff)
    –v–
    Evansville Police Department
    and The City of Evansville,
    Appellees (Defendants)
    Babi Beyer,
    Appellant/Cross-Appellee (Plaintiff)
    –v–
    The City of Fort Wayne,
    Appellee/Cross-Appellant (Defendant)
    Argued: February 15, 2018 | Decided: September 13, 2018
    Appeal from the Vanderburgh Circuit Court,
    No. 82C01-1209-CT-479
    The Honorable David D. Kiely, Judge
    Appeal from the Allen Superior Court,
    No. 02D01-1506-CT-247
    The Honorable Nancy Eshcoff Boyer, Judge
    On Petition to Transfer from the Indiana Court of Appeals,
    No. 82A01-1610-CT-2299
    Opinion by Chief Justice Rush
    Justices Massa, Slaughter, and Goff concur.
    Justice David concurs in result.
    Rush, Chief Justice
    Two 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.
    Resounding in our decision today is the maxim that great power comes
    with great responsibility.1 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.
    We thus 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.
    We also 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.
    1This maxim finds iteration across time and form, from the Bible’s “[f]or everyone to whom
    much is given, from him much will be required,” Luke 12:48 (New King James), to Franklin D.
    Roosevelt’s “great power involves great responsibility,” Text of Final FDR Speech Released, The
    Daily Illini, Apr. 14, 1945, at 3, to Lee and Ditko’s “in this world, with great power there must
    also come—great responsibility!,” Stan Lee & Steve Ditko, Amazing Fantasy #15 Introducing
    Spider-Man 11 (1962).
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                      Page 2 of 21
    Facts and Procedural History
    These 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.
    In 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.
    When 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.
    Officer 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.”
    Once 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 conduct.
    Unfortunately, Officer Montgomery’s misconduct is not the only sexual
    assault by an on-duty Indiana police officer that we must address today.
    In Fort 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.
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018   Page 3 of 21
    The 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.
    At the 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.
    Before 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 was “hot.”
    He then 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.
    The State brought criminal charges against Officer Rogers, who pleaded
    guilty to three felonies: official misconduct, sexual misconduct, and rape.
    Each woman sued the respective assaulting officer’s city employer.
    Cox 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
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 4 of 21
    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.
    Beyer 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. Fort Wayne and Beyer each filed an
    interlocutory appeal: Fort Wayne on liability under respondeat superior, and
    Beyer on the common-carrier exception.
    The Indiana Court of Appeals accepted and consolidated both cases’
    appeals. Cox v. Evansville Police Dep’t, 
    84 N.E.3d 678
    , 680 (Ind. Ct. App.
    2017). 2 It then reversed the trial courts’ orders granting summary
    judgment to Evansville and Fort Wayne (“the cities”) on the common-
    carrier issue and affirmed the denial of summary judgment to Fort Wayne
    on respondeat superior liability. 
    Id.
    The cities each petitioned to transfer. We now grant both petitions,
    vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).
    Standard of Review
    We address two questions of law raised in motions for summary
    judgment. First, does Fort Wayne escape liability as a matter of law under
    2 Each woman also sued the assaulting officer. Officer Montgomery was dismissed from the
    action Cox filed in federal court and is not a defendant in the state court action. Officer Rogers
    is a defendant in Beyer’s state court action. He has not appeared or otherwise participated in
    this appeal, but he is a party on appeal because he is a party of record in the trial court. See
    Ind. Appellate Rule 17(A).
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                      Page 5 of 21
    the doctrine of respondeat superior? See Barnett v. Clark, 
    889 N.E.2d 281
    , 283
    (Ind. 2008). Second, does the common-carrier exception apply? See Stropes
    ex rel. Taylor v. Heritage House Childrens Ctr. of Shelbyville, Inc., 
    547 N.E.2d 244
    , 252–53 (Ind. 1989).
    We review summary judgment and these questions of law de novo. See
    Ind. Trial Rule 56(C); Hughley v. State, 
    15 N.E.3d 1000
    , 1003 (Ind. 2014);
    Ballard v. Lewis, 
    8 N.E.3d 190
    , 193 (Ind. 2014).
    Discussion and Decision
    In their claims against the cities, each woman asserts two theories of
    vicarious liability: First, the officer’s sexual assault occurred within the
    scope of his employment, making the city liable under respondeat superior’s
    scope-of-employment rule. And second, even if the sexual assault
    occurred outside the officer’s scope of employment, the city breached a
    nondelegable, common-carrier duty, making the city liable under that
    exception to the scope-of-employment rule.
    Fort Wayne contends that the sexual assault was outside its police
    officer’s scope of employment as a matter of law. And both cities maintain
    that the common-carrier exception does not apply.
    Vicarious liability for an on-duty police officer’s sexual assault is an
    issue of first impression for this Court. Courts in other states have
    confronted similar issues, revealing variations not only in identifying
    police officers’ scope of employment, but also in applying exceptions to
    respondeat superior’s scope-of-employment rule and in adopting sections of
    the Restatement (Second) of Agency. 3 We have not adopted—and the
    3See, e.g., Red Elk ex rel. Red Elk v. United States, 
    62 F.3d 1102
    , 1107–08 (8th Cir. 1995) (applying
    South Dakota law and affirming finding that on-duty police officer’s rape occurred within the
    scope of his employment); Buie v. District of Columbia, 
    273 F. Supp. 3d 65
    , 68 (D.D.C. 2017)
    (denying motion to dismiss claim of vicarious liability for police officer’s sexual assault, based
    on section 219(2)(d) of the Restatement (Second) of Agency); Peña v. Greffet, 
    110 F. Supp. 3d 1103
    , 1140 (D.N.M. 2015) (applying New Mexico law and denying motion to dismiss
    plaintiff’s aided-in-agency theory of vicarious liability for corrections officer’s sexual assault
    of inmate); Mary M. v. City of Los Angeles, 
    814 P.2d 1341
    , 1342 (Cal. 1991) (in bank) (holding
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                         Page 6 of 21
    parties do not urge us to adopt—the relevant sections of the Restatement
    (Second) of Agency. See Stropes, 547 N.E.2d at 250.
    But the variations in how courts have addressed sexual assaults by
    police officers reveal a common theme—that police officers’ duties come
    with broad authority and intimidating power that may affect vicarious
    liability. See Doe v. City of Chicago, 
    360 F.3d 667
    , 671 (7th Cir. 2004)
    (collecting cases). More specifically, because police officers’ employer-
    conferred power is so great, the range of acts for which a city may be
    vicariously liable stretches far. See, e.g., id.; Red Elk ex rel. Red Elk v. United
    States, 
    62 F.3d 1102
    , 1106–07 (8th Cir. 1995); Mary M. v. City of Los Angeles,
    
    814 P.2d 1341
    , 1349–50 (Cal. 1991) (in bank); Applewhite v. City of Baton
    Rouge, 
    380 So. 2d 119
    , 121–22 (La. Ct. App. 1979).
    Like other courts confronting police officers’ sexual assaults, we
    consider the unique nature of police employment as we evaluate this issue
    under Indiana common law. We first hold that Fort Wayne does not
    escape liability as a matter of law under the scope-of-employment rule. 4
    We then turn to the common-carrier exception and hold that it does not
    that police officer’s sexual assault was not outside the scope of employment as a matter of
    law); Rawling v. City of New Haven, 
    537 A.2d 439
    , 446 (Conn. 1988) (reversing summary
    judgment on a genuine issue of material fact about whether police officer’s sexual assault was
    “in the course of his duty”); Sherman v. State Dep’t of Pub. Safety, No. 206, 2017, --- A.3d ----,
    
    2018 WL 3118856
     at *23–28 (Del. June 26, 2018) (3-2 decision) (applying subsections 219(2)(c)
    and (d) of the Restatement (Second) of Agency as nondelegable-duty and aided-in-agency
    exceptions to section 228); Applewhite v. City of Baton Rouge, 
    380 So. 2d 119
    , 122–23 (La. Ct.
    App. 1979) (affirming judgment against city employer because on-duty police officer “abused
    the ‘apparent authority’ given such persons to act in the public interest” when the officer
    sexually assaulted a woman); Hamed v. Wayne County, 
    803 N.W.2d 237
    , 244–48, 258 (Mich.
    2011) (concluding that sheriff deputy’s sexual assault of inmate was unforeseeable and so
    outside the scope of employment, and declining to apply an aided-by-agency exception to
    Michigan’s respondeat superior rule); Doe v. Forrest, 
    853 A.2d 48
    , 55, 69 (Vt. 2004) (finding sexual
    assault by sheriff’s deputy outside the scope of his employment, but adopting—and reversing
    summary judgment under—section 219(2)(d) of the Restatement (Second) of Agency); Boyer-
    Gladden v. Hill, 
    224 P.3d 21
    , 29 (Wyo. 2010) (affirming summary judgment to sheriff under the
    Wyoming Governmental Claims Act for employee’s sexual assault of inmate, citing Wyoming
    case law asserting that sexual misconduct is never within the scope of any public officer’s
    duties).
    4The appeal in Cox’s case concerns only the common-carrier theory, not the scope-of-
    employment rule of respondeat superior.
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                        Page 7 of 21
    apply in these cases. Thus, the cities are entitled to summary judgment on
    the common-carrier theory, but not on the issue of liability under
    respondeat superior’s scope-of-employment rule.
    I. The scope-of-employment rule of respondeat
    superior.
    For well over a hundred years, Indiana has recognized the doctrine of
    respondeat superior—Latin for “let the superior make answer,” Respondeat
    superior, Black’s Law Dictionary 1505 (10th ed. 2014). See, e.g., Barnett, 889
    N.E.2d at 283–84; Smith v. Louisville, Evansville & St. Louis R.R., 
    124 Ind. 394
    , 400–01, 
    24 N.E. 753
    , 755 (1890); Evansville & Terre Haute R.R. v. McKee,
    
    99 Ind. 519
    , 520–21 (1885). Under this doctrine, an employer is liable for
    employees’ tortious acts only if those acts occurred within the scope of
    employment. See Barnett, 889 N.E.2d at 283; Smith, 124 Ind. at 400, 24 N.E.
    at 755.
    This scope-of-employment rule is “[t]he general rule” of vicarious
    liability for both government and private employers. Barnett, 889 N.E.2d
    at 283; Benton v. City of Oakland City, 
    721 N.E.2d 224
    , 228 (Ind. 1999). And
    it is the basis for the first question we face: Did Officer Rogers’s sexual
    assault of Babi Beyer occur outside the scope of his employment as a
    matter of law?
    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). But when the relevant facts are undisputed and would not allow a
    jury to find that the tortious acts were within the scope of employment,
    we may conclude as a matter of law that they were not. Stropes, 547 N.E.2d
    at 248–50.
    Fort Wayne argues that Officer Rogers’s sexual assault was outside the
    scope of his employment as a matter of law because it was neither
    authorized by the city nor done as a service to the city.
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 8 of 21
    Beyer counters that the city is not entitled to judgment as a matter of
    law because Rogers’s acts were, for a time, authorized by the city—even
    though Rogers was not authorized to sexually assault her.
    Beyond question, cities do not authorize their police officers to sexually
    assault people. Indeed, sexual assault is directly opposed to police
    officers’ law-enforcement and community-caretaking functions. See, e.g.,
    Ind. Const. art. 5, § 16; 
    Ind. Code § 5-2-1-17
     (2018); 
    Ind. Code § 10-11-2-21
    (2018); Fair v. State, 
    627 N.E.2d 427
    , 431 (Ind. 1993) (recognizing that police
    both enforce criminal laws and enhance community safety). But, as we
    discuss below, that does not necessarily place an officer’s sexual assault
    outside the sphere of employee actions for which the city may be
    responsible.
    Having never before evaluated whether sexual assault may fall within
    the scope of an on-duty police officer’s employment, we begin by
    examining the policies that shape Indiana’s scope-of-employment rule.
    We then observe distinctive characteristics of police officers’ employment
    that affect the scope-of-employment analysis. And finally, we evaluate
    whether Officer Rogers’s acts fell outside the scope of his employment as a
    matter of law.
    A. Under Indiana’s scope-of-employment rule, an
    employer is liable for employees’ tortious acts that arise
    naturally or predictably from the employment context.
    The scope-of-employment rule emanates from the concept of control.
    Stropes, 547 N.E.2d at 252; see Dickson v. Waldron, 
    135 Ind. 507
    , 516–20, 
    34 N.E. 506
    , 509–10 (1893). More specifically, it springs from the employer’s
    control over its employees and their employment activities: the employer
    controls whom it hires, what employment duties it assigns, how it
    empowers employees to carry out those duties, and how it guards against
    harm arising from employment activities. See Barnett, 889 N.E.2d at 284–
    85; Stropes, 547 N.E.2d at 249–50; Dickson, 135 Ind. at 516–19, 34 N.E. at
    509; City of Indianapolis v. West, 
    81 N.E.3d 1069
    , 1072–73 (Ind. Ct. App.
    2017).
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 9 of 21
    Although scope-of-employment liability is rooted in this control, it
    extends beyond actual or possible control, holding employers responsible
    for some risks inherent in the employment context. See Dickson, 135 Ind. at
    518, 34 N.E. at 509–10; West, 81 N.E.3d at 1072–73; Walgreen Co. v. Hinchy,
    
    21 N.E.3d 99
    , 107–08 (Ind. Ct. App. 2014), trans. denied. Ultimately, the
    scope of employment encompasses the activities that the employer
    delegates to employees or authorizes employees to do, plus employees’
    acts that naturally or predictably arise from those activities. See Stropes,
    547 N.E.2d at 250; Dickson, 135 Ind. at 518, 34 N.E. at 509; West, 81 N.E.3d
    at 1072–73; cf. Tippecanoe Beverages, Inc. v. S.A. El Aguila Brewing Co., 
    833 F.2d 633
    , 638 (7th Cir. 1987) (applying Indiana law).
    This means that the scope of employment—which determines whether
    the employer is liable—may include acts that the employer expressly
    forbids; that violate the employer’s rules, orders, or instructions; that the
    employee commits for self-gratification or self-benefit; that breach a
    sacred professional duty; or that are egregious, malicious, or criminal. See,
    e.g., Warner Trucking, Inc. v. Carolina Cas. Ins., 
    686 N.E.2d 102
    , 105 (Ind.
    1997) (trucker’s drunk driving); Stropes, 547 N.E.2d at 245, 249 (nurse
    aide’s sexual assault of resident); Walgreen, 21 N.E.3d at 103, 109
    (pharmacist’s breach of privacy for prescription records); Southport Little
    League v. Vaughan, 
    734 N.E.2d 261
    , 266–67, 270 (Ind. Ct. App. 2000)
    (equipment manager’s molestation of youths), trans. denied; Gomez v.
    Adams, 
    462 N.E.2d 212
    , 224–25 (Ind. Ct. App. 1984) (security officer’s
    conversion of arrestee’s check-cashing card).
    The scope of employment extends beyond authorized acts for two key
    reasons. First, it is equitable to hold people responsible for some harms
    arising from activities that benefit them. See Dickson, 135 Ind. at 518, 34
    N.E. at 510. When employees carry out assigned duties, those employment
    activities “further the employer’s business” to an appreciable extent,
    benefiting the employer. Barnett, 889 N.E.2d at 283; see also West, 81 N.E.3d
    at 1072. But delegating employment activities also carries an inherent risk
    that those activities will naturally or predictably give rise to injurious
    conduct. See Stropes, 547 N.E.2d at 249–50; Dickson, 135 Ind. at 517–18, 34
    N.E. at 509; West, 81 N.E.3d at 1072–73. When that happens, the employer
    is justly held accountable since the risk accompanies the employer’s
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018   Page 10 of 21
    benefit. See West, 81 N.E.3d at 1072 n.2; Stump v. Ind. Equip. Co., 
    601 N.E.2d 398
    , 403 (Ind. Ct. App. 1992), trans. denied.
    Second, holding employers liable for those injurious acts helps prevent
    recurrence. See Dickson, 135 Ind. at 518, 34 N.E. at 509; accord West ex rel.
    Norris v. Waymire, 
    114 F.3d 646
    , 649 (7th Cir. 1997); Tippecanoe Beverages,
    
    833 F.2d at 638
    . Employers can take measures—like selecting employees
    carefully and instituting procedures that lessen employment dangers—to
    reduce the likelihood of tortious conduct. See Dickson, 135 Ind. at 518, 34
    N.E. at 509–10; accord Waymire, 
    114 F.3d at 649
    ; Tippecanoe Beverages, 
    833 F.2d at 638
    . Since employers have some control over the risk of injurious
    conduct flowing from employment activities, imposing liability on
    employers for that conduct encourages them to take preventive action. See
    Dickson, 135 Ind. at 518, 34 N.E. at 509; accord Waymire, 
    114 F.3d at 649
    ;
    Tippecanoe Beverages, 
    833 F.2d at 638
    ; Mary M., 
    814 P.2d at 1343
    .
    To be clear, the focus in determining the scope of employment “must be
    on how the employment relates to the context in which the commission of
    the wrongful act arose.” Barnett, 889 N.E.2d at 285 (quoting Stropes, 547
    N.E.2d at 249). When tortious acts are so closely associated with the
    employment that they arise naturally or predictably from the activities an
    employee was hired or authorized to do, they are within the scope of
    employment, making the employer liable. West, 81 N.E.3d at 1072–73. But
    tortious acts are not within the scope of employment when they flow from
    a course of conduct that is independent of activities that serve the
    employer. Barnett, 889 N.E.2d at 283–84.
    With this framework in mind, we now turn to police officers’ scope of
    employment.
    B. When a police officer misuses employer-conferred
    power and authority to commit sexual assault, the city is
    liable for the assault if it arose naturally or predictably
    from the officer’s employment activities.
    Since the scope of employment depends on whether acts naturally or
    predictably arise from the employment context, our inquiry into police
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018    Page 11 of 21
    officers’ scope of employment begins with the activities and authority that
    cities delegate to their officers.
    Cities assign police officers law-enforcement and community-
    protection duties. Fair, 627 N.E.2d at 431. Those duties come with state
    authority to detain, arrest, frisk, search, seize, and even use deadly force
    when necessary. See 
    Ind. Code § 35-41-3-3
     (2018); cf. Plumhoff v. Rickard,
    
    134 S. Ct. 2012
    , 2021–22 (2014); Terry v. Ohio, 
    392 U.S. 1
    , 29–30 (1968). Cities
    also outfit their officers with visible signs of their employer-conferred
    authority—a marked car, uniform, badge, and weapons—which officers
    use to carry out their employment duties. These duties frequently
    authorize and involve entering homes; detaining criminal suspects at
    gunpoint; placing suspects in handcuffs and into police vehicles; and
    subjecting them to forceful, nonconsensual, and offensive contact. See I.C.
    § 35-41-3-3; cf. Arizona v. Johnson, 
    555 U.S. 323
    , 328, 332 (2009); Los Angeles
    County v. Rettele, 
    550 U.S. 609
    , 611, 615 (2007) (per curiam); Perez v. State,
    
    981 N.E.2d 1242
    , 1247, 1252 (Ind. Ct. App. 2013), trans. denied.
    Investing officers with these considerable and intimidating powers
    comes with an inherent risk of abuse. See Dickson, 135 Ind. at 517–18, 34
    N.E. at 509; City of Chicago, 
    360 F.3d at 671
    ; Doe v. Forrest, 
    853 A.2d 48
    , 61–
    62 (Vt. 2004). When that abuse is a tortious act arising naturally or
    predictably from the police officer’s employment activities, it falls within
    the scope of employment for which the city is liable. Thus, if an on-duty
    police officer commits a sexual assault by misusing official authority, the
    sexual assault is within the scope of employment if the employment
    context naturally or predictably gave rise to that abuse of official
    authority.
    The reasons underlying scope-of-employment liability support this
    conclusion. First, the city benefits from the lawful exercise of police
    power, so when tortious abuse of that power naturally or predictably
    flows from employment activities, the city equitably bears the cost of the
    victim’s loss. See West, 81 N.E.3d at 1072–73. And second, holding the city
    liable encourages it to guard against recurrent assaults. Particularly
    because cities vest considerable power and authority in police officers, we
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 12 of 21
    want cities to exercise vigilance in hiring and supervising officers. See
    Waymire, 
    114 F.3d at 649
    .
    So the scope-of-employment rule, shaped by its underlying policies,
    allows employer liability for an officer’s sexual assault. We stress that the
    unique authority that cities vest in police officers drives this conclusion.
    As other courts have observed, “[t]he danger that an officer will commit a
    sexual assault while on duty arises from the considerable authority and
    control inherent in the responsibilities of an officer in enforcing the law.”
    Mary M., 
    814 P.2d at 1350
    ; accord City of Chicago, 
    360 F.3d at 671
    ; Forrest,
    
    853 A.2d at
    61–62. Employees without this authority and power who
    commit sexual assaults may be acting outside the scope of their
    employment as a matter of law. See, e.g., L.N.K. ex rel. Kavanaugh v. St.
    Mary’s Med. Ctr., 
    785 N.E.2d 303
    , 308 (Ind. Ct. App. 2003), trans. denied;
    Konkle v. Henson, 
    672 N.E.2d 450
    , 457 (Ind. Ct. App. 1996).
    We now evaluate the relationship between Officer Rogers’s
    employment context and his sexual assault of Babi Beyer.
    C. A jury could find Fort Wayne liable for Officer Rogers’s
    sexual assault.
    As discussed above, whether particular acts come within the scope of
    employment is generally a question of fact for the jury. The question of
    law for us to decide is whether Officer Rogers’s sexual assault was so
    disconnected from his employment activities that a jury could not find
    that the assault arose naturally or predictably from the employment
    context. We hold that Officer Rogers’s misconduct was not so
    disconnected.
    It goes without saying that sexual assault was not part of Officer
    Rogers’s assigned duties. Indeed, his misconduct was the antithesis of law
    enforcement and community protection. But as already explained,
    criminal conduct that violates an employee’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 employment context.
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018    Page 13 of 21
    Since we recognize that police officers’ employer-conferred power and
    authority carry an inherent risk of abuse, this inquiry 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?
    Here, the undisputed facts show that Officer Rogers abused his
    employer-conferred power and authority in sexually assaulting Beyer.
    Fort Wayne assigned Officer Rogers to operating-while-intoxicated
    enforcement and patrol, and—as part of this assignment—dispatched
    Officer Rogers to Beyer’s stopped vehicle. There, he and another officer
    placed Beyer into Officer Rogers’s car, and Officer Rogers took over the
    investigation. As part of his employment duties, Officer Rogers was alone
    with Beyer, handcuffed her, and took her to the lock-up facility and to the
    hospital. During those times and as part of his employment activities,
    Officer Rogers exercised physical control and official authority over Beyer.
    That physical control continued as he again placed her in handcuffs,
    loosened them, fondled her breast, took her from the hospital to a dark
    wooded area, walked her to a bench, raped her, placed her in a crime
    scene van, and took her home. The whole time, he was on duty, wearing
    his police uniform, and exhibiting the coercive power and authority that
    accompany his official duties.
    In sum, Officer Rogers sexually assaulted Beyer by exploiting unique
    institutional prerogatives of his police employment. Because of this
    connection, Fort Wayne is not entitled to summary judgment on the issue
    of liability under the doctrine of respondeat superior.
    Whether Officer Rogers’s employment activities naturally or
    predictably gave rise to that abuse of power is a question of fact for the
    jury. So on remand, the jury must decide if Officer Rogers’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. Waymire, 
    114 F.3d at 649
    . Like
    foreseeability in determining proximate cause in negligence cases, this is a
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018   Page 14 of 21
    particularly fact-sensitive issue. See Kramer v. Catholic Charities of the
    Diocese of Fort Wayne–S. Bend, 
    32 N.E.3d 227
    , 231 (Ind. 2015).
    We note that the current pattern jury instructions on respondeat superior
    do not account for the unique circumstances of police officers’
    employment, which affect whether an officer’s tortious conduct flowed
    naturally or predictably from the employment context. Nor do the pattern
    instructions reflect Indiana’s respondeat superior law more generally. This is
    because, to fall within the scope of employment, the tortious act itself need
    not be intended to serve the employer—any more than a nurse aide’s
    sexual assault of a severely disabled resident can be intended to serve the
    care center employer, Stropes, 547 N.E.2d at 245, 247, or an equipment
    manager’s molestation of children can be intended to serve the Little
    League employer, Southport Little League, 
    734 N.E.2d at
    266–67, 270. And
    as already explained, the employer need not authorize the tortious act for
    it to fall within the scope of employment. Rather, the tortious act must
    come from a course of conduct the employee performs in the employer’s
    service. See Barnett, 889 N.E.2d at 283.
    Because a question of fact remains about whether Officer Rogers’s
    sexual assault occurred within the scope of his employment, we affirm the
    denial of summary judgment to Fort Wayne on the issue of liability under
    the doctrine of respondeat superior.
    II. The common-carrier exception does not apply.
    Our next task is to determine whether the common-carrier exception to
    the general scope-of-employment rule applies in these cases. Put
    differently, did the cities assume a common-carrier duty of care for Cox
    and Beyer?
    Common-carrier liability is an exception to the general scope-of-
    employment rule because it does not depend on whether employees’
    injurious conduct fell within the scope of employment. Stropes, 547 N.E.2d
    at 253. Instead, it depends on a special relationship between the employer
    and its patron. Id. When the employer has assumed a common-carrier
    duty to exercise extraordinary care for its patrons, the employer can be
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018       Page 15 of 21
    liable whether or not an employee’s tortious acts were within the scope of
    employment. Id.
    The existence of a common-carrier duty is a matter of law. Id. We have
    never held that cities owe a common-carrier duty to individuals who
    interact with on-duty police officers sent to investigate or help them. The
    women argue that we should do so now because of the control that the
    police officers exerted over the women.
    The cities respond that the common-carrier exception is narrow and
    does not apply to the facts of these cases. They add that extending the
    exception here would expand it also to facts that we have already
    determined do not give rise to a common-carrier duty.
    After examining Indiana’s common-carrier exception, we conclude that
    the relationships between the cities and the women do not fit within the
    exception, which we decline to expand.
    Like the doctrine of respondeat superior, the common-carrier exception
    dates back over a century in Indiana law. See Dickson, 135 Ind. at 520, 34
    N.E. at 510. And like the scope-of-employment rule, the common-carrier
    exception’s premise is control. See Stropes, 547 N.E.2d at 252.
    With this common denominator of control, the policy reasons
    underlying the rule and the exception are the same: allotting the cost of
    injury to the beneficiaries of the enterprise that gave rise to the loss, and
    encouraging employers to take precautions against hazards. See Dickson,
    135 Ind. at 518–19, 34 N.E. at 509–510; Waymire, 
    114 F.3d at 649
    .
    But the kind of control that underpins each theory is different. Scope-
    of-employment liability derives from the employer’s control over its
    employees; common-carrier liability requires that a patron hand over
    control and autonomy to an enterprise or employer. Stropes, 547 N.E.2d at
    253.
    This means that each theory’s application is distinct, though they may
    overlap—rendering an employer liable under both theories. See, e.g., id. at
    254. But as an exception to the scope-of-employment rule—which is the
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 16 of 21
    “general rule” of vicarious liability, Barnett, 889 N.E.2d at 283—the
    common-carrier theory is narrower.
    As its name implies, the common-carrier exception originated with
    common carriers. See Indianapolis Union Ry. v. Cooper, 
    6 Ind. App. 202
    , 205,
    
    33 N.E. 219
    , 219–20 (1893). These commercial enterprises—such as
    shipowners, railroads, or airlines—“contract[] to transport passengers or
    goods for a fee” and are “generally required by law to transport freight or
    passengers without refusal if the approved fare or charge is paid.” Carrier,
    Black’s Law Dictionary 256 (10th ed. 2014). The carrier assumes a
    nondelegable duty to exercise heightened, extraordinary care because of
    its special relationship to patron–passengers. Stropes, 547 N.E.2d at 250–51.
    The special carrier–patron relationship emerges from a so-called
    “contract of passage” in which the carrier invites the public to pay a fare
    in exchange for safe passage. Id. at 252. For those who accept that
    invitation to become patrons or guests, the carrier assumes a special,
    contractual duty of protection for the agreed-upon “period of
    accommodation.” Id. As a result, the common-carrier exception does not
    extend to non-patrons, who have not entered a “contract of passage.”
    Compare Dickson, 135 Ind. at 517, 34 N.E. at 509 (“It is well settled that one
    who has purchased his ticket, and is passing at the proper time from the
    depot to the train, is a passenger, and entitled to the rights of a
    passenger.”), with Carter v. Louisville, New Albany & Chi. Ry., 
    98 Ind. 552
    ,
    556 (1885) (applying scope-of-employment rule, and not common-carrier
    exception, when a party entered a streetcar without intending to pay his
    fare).
    True, we have applied the exception outside the common-carrier
    context—to innkeepers and their guests, theatrical managers and their
    patrons, and a children’s center and its severely disabled resident. See
    Stropes, 547 N.E.2d at 254; Dickson, 135 Ind. at 520, 34 N.E. at 510. So the
    exception is broader in Indiana than in many other states. See, e.g.,
    Worcester Ins. v. Fells Acres Day Sch., Inc., 
    558 N.E.2d 958
    , 967–68 (Mass.
    1990); Maguire v. State, 
    835 P.2d 755
    , 759 (Mont. 1992); Davis v. Devereux
    Found., 
    37 A.3d 469
    , 487–88 (N.J. 2012); Niece v. Elmview Grp. Home, 
    929 P.2d 420
    , 422, 428–30 (Wash. 1997). But even in Indiana’s extended
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 17 of 21
    applications, the common-carrier nondelegable duty arises from the
    parties’ “contract of passage,” which “formed the basis of [the parties’]
    relationship.” Stropes, 547 N.E.2d at 253–54. The exception does not apply
    to relationships lacking that fundamental feature.
    This means that relationships may involve lopsided autonomy,
    responsibility, and control without invoking the common-carrier
    exception. For example, the State is responsible for inmate safety, and
    schools exercise control over students. But the duty of care in those
    relationships is one of reasonable care to preserve safety. See Sauders v.
    County of Steuben, 
    693 N.E.2d 16
    , 18 (Ind. 1998) (inmates and custodians);
    Miller ex rel. Miller v. Griesel, 
    261 Ind. 604
    , 612, 
    308 N.E.2d 701
    , 706 (Ind.
    1974) (students and schools); see also Hansen v. Bd. of Trs. of Hamilton Se.
    Sch. Corp., 
    551 F.3d 599
    , 615 (7th Cir. 2008) (“[W]ell-settled Indiana law
    does not impose a non-delegable duty on [the school] for the safekeeping
    of its students . . . .”). 5 The common-carrier exception does not apply since
    those relationships generally are not based on a contract with an
    assurance of safety—much less a “contract of passage.” See Stropes, 547
    N.E.2d at 252.
    The same is true of the relationships here. Though the responding
    officers exercised control over Cox and Beyer, the women’s relationships
    with the cities were not contractual as required to invoke the common-
    carrier exception. Neither Cox nor Beyer entered a “contract of passage”
    with Evansville or Fort Wayne: there was no invitation, no acceptance of
    5In one anomalous case, an Indiana Court of Appeals panel extended the common-carrier
    exception to a sheriff after his jailer summoned an inmate into a shower room, where the
    inmate performed fellatio on the jailer. Robins v. Harris, 
    740 N.E.2d 914
    , 917–18 (Ind. Ct. App.
    2000), clarified on reh’g, 
    743 N.E.2d 1142
    , 1143 (Ind. Ct. App. 2001). We granted transfer to
    address consent as a defense, but the parties settled before we decided the issue. Robins v.
    Harris, 
    769 N.E.2d 586
    , 587 (Ind. 2002). So we summarily affirmed the Court of Appeals
    opinions except on the consent issue and dismissed the appeal, 
    id.,
     without adopting the
    common-carrier-exception holding, see App. R. 58(A)(2) (summarily affirmed opinions or
    portions thereof shall be considered as Court of Appeals authority). Since Robins did not find
    a “contract of passage”—as required for common-carrier liability—its common-carrier
    holding conflicts with this Court’s decisions in Sauders, 693 N.E.2d at 18, and Reed v. State, 
    479 N.E.2d 1248
    , 1254 (Ind. 1985). We therefore disapprove Robins’s common-carrier analysis.
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                     Page 18 of 21
    an invitation, no fare or other consideration, and no agreed-on period of
    accommodation. At most, Cox and Beyer entered a social contract of the
    sort contemplated by political theory. 6 But the “contract of passage” that
    imposes a common-carrier duty is not so vast or philosophical. If it were,
    the exception would lose its common-carrier moorings and swallow the
    standard scope-of-employment rule. See Barnett, 889 N.E.2d at 283; Benton,
    721 N.E.2d at 228.
    Certainly, citizens have a right to demand that the government’s sworn
    protectors and law enforcers not disgrace their positions of power with
    criminal and tortious acts. As we’ve explained, though, the rule of
    respondeat superior holds cities liable for those injurious acts arising
    naturally or predictably from the employment context. Departing from
    our common-carrier precedent is thus unnecessary to address the public
    policy concerns underlying vicarious liability—policies that the scope-of-
    employment rule and the common-carrier exception share.
    We therefore decline to extend Indiana’s common-carrier exception
    outside relationships formed by a “contract of passage.” Like other states
    that have addressed vicarious liability for on-duty police officers’ sexual
    assaults, we do not find the common-carrier exception necessary or
    suitable to impose appropriate responsibility on the cities. So we affirm
    the trial courts’ grants of summary judgment to the cities on the common-
    carrier theory.
    Conclusion
    Cities confer on police officers “the most awesome and dangerous
    power that a democratic state possesses with respect to its residents—the
    power to use lawful force to arrest and detain them.” Policemen’s
    6Social-contract theory postulates a contract among people to form and shape their society.
    See generally Thomas Hobbes, Leviathan (Oxford Univ. Press 1909) (1651); John Locke, Two
    Treatises of Government and A Letter Concerning Toleration (Ian Shapiro ed., Yale Univ. Press
    2003) (1690); Jean-Jacques Rousseau, The Social Contract and The First and Second Discourses
    (Susan Dunn ed., Yale Univ. Press 2002) (1762).
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                   Page 19 of 21
    Benevolent Ass’n of N.J., Local 318 v. Township of Washington, 
    850 F.2d 133
    ,
    141 (3d Cir. 1988). Because cities vest this immense power in their officers,
    the doctrine of respondeat superior holds cities legally responsible for
    officers’ tortious abuse of their employer-conferred power when the abuse
    arises naturally or predictably from an officer’s employment activities.
    Whether Officer Rogers’s conduct naturally or predictably flowed from
    his employment activities is a question of fact for the jury. But the
    connection between his employment activities and his sexual assault of
    Beyer was more than enough for her claim to survive summary judgment.
    We therefore affirm the denial of summary judgment to Fort Wayne on
    the issue of respondeat superior.
    On the common-carrier issue, the women’s relationships with the cities
    do not fit within the parameters that give rise to a common-carrier duty.
    We therefore affirm the grants of summary judgment to the cities on the
    common-carrier theory of liability.
    Massa, Slaughter, and Goff, JJ., concur.
    David, J., concurs in result.
    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, Indiana
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018   Page 20 of 21
    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
    Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 21 of 21