Justices: Evansville, Fort Wayne partly liable for police sex assaults

The Indiana Supreme Court affirmed two cities were entitled to summary judgment on the common-carrier theory, but not on the issue of liability under respondeat superior’s scope-of-employment rule in a consolidated civil lawsuit involving two women who were sexually assaulted by on-duty police in Evansville and Fort Wayne.

In 2009, Jennifer Cox was sexually assaulted by then-Evansville police officer Martin Montgomery. He had responded to a domestic disturbance call involving Cox, who he took back to her apartment, followed her inside, and coerced her into sex. Cox sued, and he later was convicted of criminal deviate conduct and sentenced to 12 years in prison.

Then up north, Babi Beyer was assaulted and raped by then-officer Mark Rogers. After she was arrested for sitting behind the wheel of a car parked on a road while intoxicated, she was taken to a hospital where a blood draw revealed an alcohol level more than three times the legal limit. She was discharged, however, to Rogers’ custody, and he took her to a grassy area and raped her on a bench while armed and in uniform. Rogers pleaded guilty to charges of rape, sexual misconduct and official misconduct.

The suits were combined before the Indiana Court of Appeals because they shared a common issue of law — whether the “common carrier” liability exception applied to police departments and municipalities in both cases. In a Sept. 17 ruling, the COA found the exception did apply to the cities and officers, however the high court sided with the trial court’s decision that it did not in Jennifer Cox v. Evansville Police Department and The City of Evansville; Babi Beyer v. The City of Fort Wayne, 18S-CT-447.

On appeal, Fort Wayne contended that the sexual assault was outside its police officer’s scope of employment as a matter of law. And both cities maintained that the common-carrier exception did not apply. The high court did not excuse Fort Wayne from liability as a matter of law, but did find the common carrier-exception did not apply.

First, the high court found that under Indiana’s scope-of-employment rule, an employer is liable for employees’ tortious acts that arise naturally or predictably from the employment context.

It also determined that 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.

“The reasons underlying scope-of-employment liability support this conclusion,” Chief Justice Loretta Rush wrote. “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.”

The high court also found that Rogers exploited his unique institutional prerogatives of his police employment.

“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,” Rush wrote.

In its second point, the high court declined to extend Indiana’s common-carrier exception outside relationships formed by a “contract of passage.”

“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,” the panel wrote. “Neither Cox nor Beyer entered a ‘contract of passage’ with Evansville or Fort Wayne: there was no invitation, no acceptance of an invitation, no fare or other consideration, and no agreed-on period of accommodation.”

The court concluded in noting that with “great power comes with great responsibility.”

 “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,” Rush concluded.