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:
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.