Two cases from opposite ends of the state jointly came before the Indiana Supreme Court on Thursday for guidance on the same question: if a police officer sexually assaults a citizen while on duty, should municipalities be held liable for the officer’s actions as the employer?
That question became relevant in Evansville and Fort Wayne when two police officers sexually assaulted intoxicated women in their respective cities. Former Evansville Officer Martin Montgomery coerced Jennifer Cox into sex at her home after responding to a domestic disturbance call, while former Fort Wayne Officer Mark Rogers raped Babi Beyer on a park bench when he was purportedly transferring her to a jail after her arrest for sitting behind the wheel of a parked car while intoxicated. Like Beyer, Cox was intoxicated at the time of the assault.
After the victims sued, the Indiana Court of Appeals denied the municipalities’ motions for summary judgment in a combined interlocutory appeal, finding the cities owed non-delegable duties of care to the women as Montgomery and Rogers’ employers. The cities, however, argued on petition to transfer Thursday that the Court of Appeals’ ruling erroneously expanded non-delegable duty in a way that would increase municipalities’ liability for police officer actions.
Thursday’s arguments focused largely on whether cities can be found to have a non-delegable duty in sexual assault cases. While the separate respondeat superior analyses focus on the relationship between the tortfeasor and their employer, non-delegable duty looks at the relationship between the tortfeasor and the alleged victim.
Here, the officers had control over their victims by virtue of being entrusted to transport Beyer to jail and Cox to her home, so the women had given up their autonomy to the officers. Thus, the surrender of the victims’ control and autonomy created a relationship that would allow the “common carrier” liability exception to apply, Ed Beck and Jim Young – counsel for Beyer and Cox, respectively – said.
But Robert Burkart, counsel for Evansville, said the common carrier exception has never been expanded to police officers, so if the Court of Appeals’ ruling stands, municipal liability would dramatically increase. Burkart said the exception generally applies in contractual situations where the passenger gives up their autonomy in exchange for their safe passage at the hands of a carrier.
When asked by Justice Mark Massa why a social contract could not exist between police officers and citizens, Burkart said the relationship between police and the public is compulsory, so citizens such as Cox and Beyer have no choice but to give up their autonomy. He further noted that Cox’s assault occurred in her home, a location that is sacred and free from police control.
But Joseph Williams, arguing as amicus on behalf of the Indiana Trial Lawyers Association, said asking Cox to resist an armed police officer standing in her doorway would be like asking her to jump out of a moving train. Similarly, Young pointed to the Court of Appeals’ analysis that found Cox did not regain her autonomy simply by walking through her front door.
Turning to the issue of respondeat superior, Fort Wayne counsel Carolyn Trier told the court that Rogers was hired to enforce the law, not to rape citizens. Thus, his conduct was clearly outside the scope of his employment, defeating a respondeat superior claim for liability. But Beck said the issue of respondeat superior liability under a scope of employment analysis is a question of fact appropriate for a jury.
When Chief Justice Loretta Rush asked why the factors the victims relied upon to establish a non-delegable duty could not be used to establish respondeat superior liability instead, Young agreed with Beck’s analysis. He told the chief justice that a jury is best suited to decide liability, while the court should look to the relationship between the patron — here, the victims — and the entity — here, the cities — to determine if sufficient control existed to establish a non-delegable duty.
The combined arguments on petition to transfer in Jennifer Cox v. Evansville Police Department and Babi Beyer v. City of Fort Wayne, 92A01-1610-CT-2299, can be viewed here.