The 7th Circuit Court of Appeals has overturned summary judgment for a former Lake County sheriff sued after a local woman alleged a sheriff’s deputy sexually assaulted her while in her home, with the court finding the woman’s respondeat superior claim against the sheriff can proceed. However, the appellate court upheld the grant of summary judgment to former Sheriff John Buncich on the woman’s negligent hiring claim, finding no evidence that the sheriff should have known about the deputy’s misconduct.
Lake County resident Rebecca Zander sued Buncich and Deputy Samuel Orlich after Orlich allegedly entered her home without permission and forced her to perform oral sex. Orlich had been with Zander on Sept. 19, 2013 after receiving a call about domestic violence between her and her husband and transporting Zander to her second home for a “cool-down period.”
According to Zander, Orlich left her second home after dropping her off, and she went into the bathroom. However, when she came back out, she found Orlich standing in her bedroom with no clothes on. She then claims the sheriff’s deputy forced her onto the bed before forcing her to perform sexual acts. Orlich, however, has said the encounter was consensual.
Zander responded by filing claims against Orlich in his individual and official capacities, though the Northern Indiana District Court agreed to dismiss the official capacity claims against the deputy. She also filed state law tort claims against Buncich, alleging he was vicariously liable for the alleged assault under the theory of respondeat superior and that he had negligently hired, trained and retained Orlich.
Magistrate Judge Paul Cherry, however, granted summary judgment to the then-sheriff on both of those claims, finding that because Orlich was not acting within the scope of his employment when he re-entered the home without authorization and allegedly assaulted Zander, his employer could not be held liable. The 7th Circuit Court of Appeals disagreed with that ruling as it related to the respondeat superior claim, finding Tuesday in Rebecca Zander v. Samuel Orlich, Jr., et al., 17-2792, that “Orlich abused his employer-conferred power when he assaulted Zander.”
“Orlich exploited ‘unique institutional prerogatives of his police employment,’” Judge William Joseph Bauer wrote for the unanimous appellate panel. “Because of this connection, Buncich is not entitled to summary judgment. Whether Orlich’s employment gave rise to the abuse of that power is a question of fact for the jury.”
However, the appellate panel also found “there was no evidence that Buncich should have known that Orlich was likely to assault a member of the public.” Thus, summary judgment for Buncich on the negligent hiring claim was appropriate, Bauer said.
The case was remanded for further proceedings.