Vicarious Liability for Indiana Municipal Entities for Law Enforcement Sexual Assaults

An old legal adage says, “bad facts make bad law.”  In a recent Indiana Supreme Court case, terrible facts resulted in unfavorable law for municipal entities, police departments, and their insurers.  The case is Cox v Evansville Police Dept, No. 18S-CT-447, 2018 Ind. LEXIS 550, at *3 (Sep. 13, 2018) , and it is a culmination of two cases involving the Fort Wayne and Evansville police departments.

Each case alleged a male police officer sexually assaulted a female victim to whom the officer was dispatched to respond.  Both officers were subsequently convicted.  Each victim sued the respective officer’s city employer based on respondeat superior and other theories of liability.

In upholding the trial court’s denial of Fort Wayne’s Motion for Summary Judgment under the respondeat superior theory, the Indiana Supreme Court ultimately found that a question of fact existed as to whether the police officer’s sexual assault occurred within the scope of his employment.  Chief Justice Rush’s opinion analyzed the respondeat superior issue in a three-part holding:

• First, one of the risks employers face is that while scope-of-employment liability is rooted in the employer’s control, it extends beyond actual control for certain risks inherent in the employment context. Accordingly, scope of employment—which determines whether the employer is liable—may include acts the employer expressly forbids, even criminal acts.
• Second, cities provide officers with considerable and intimidating powers, which come with an inherent risk of abuse. 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, the Court reasoned that 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.
• Lastly, in holding that a jury could find the City of Fort Wayne liable for its officer’s sexual assault, the Supreme Court noted that the officer’s 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 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.

The Court determined that Fort Wayne assigned the officer to operating-while-intoxicated enforcement and patrol, and—as part of this assignment—dispatched its officer to the plaintiff’s stopped vehicle.  As part of his employment duties, the officer was alone with the plaintiff, handcuffed her, and took her to the lock-up facility and to the hospital.  During those times and as part of his employment activities, the officer exercised physical control and official authority over the plaintiff, including the time he assaulted her.  The Court noted that throughout this time the officer was on duty, wearing his police uniform, and exhibiting the coercive power and authority that accompany his official duties.  Thus, a jury could find the officer’s employer vicariously liable for his actions.

The Cox decision will no doubt be analyzed in future cases by municipalities, their insurers, and their counsel.  Although the decision merely permits the plaintiffs’ respective cases to move beyond summary judgment, local departments and their insurers need to recognize the potential exposure for sexual assault by law enforcement officers, and work to deploy new policies and training to ensure that any potential exposure is minimized.