Jennifer Cox v. Evansville Police Department and The City of Evansville Babi E. Beyer v. The City of Fort Wayne
84 N.E.3d 678
Ind. Ct. App.2017Background
- Two separate cases consolidated on appeal: Cox v. Evansville (sexual assault by Officer Montgomery after he drove Cox home and followed her into her apartment) and Beyer v. Fort Wayne (sexual assault by Officer Rogers after arrest, hospital transport, and while handcuffed/intoxicated).
- Both plaintiffs sued their cities under negligence theories: respondeat superior and the non-delegable duty ("common carrier") exception to respondeat superior; Cox later withdrew negligent hiring/supervision theory.
- Trial courts granted summary judgment for the municipalities on the non-delegable-duty theory in both cases; Fort Wayne’s summary judgment was denied on respondeat superior for Beyer.
- Key factual contrasts: Cox was intoxicated and escorted home by an on-duty officer who followed her into her apartment before assaulting her; Beyer was in custody, handcuffed, barefoot, highly intoxicated, transported by an on-duty officer who then assaulted her.
- The appellate court reviewed whether, as a matter of law, the municipalities had assumed a non-delegable duty to protect the plaintiffs at the time of the assaults, and whether respondeat superior liability on Fort Wayne remained a triable issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employer assumed a non-delegable duty (common carrier exception) to plaintiff when assault occurred (Cox) | Cox: surrendered control/autonomy to officer from time he responded, drove her home, and accompanied her into the apartment, so non-delegable duty persisted through the continuous encounter | Evansville: duty ended when officer "cleared the run" and when Cox entered her home — she regained autonomy, so no continuing non-delegable duty | Held: Reversed. Court found as a matter of law Cox had surrendered autonomy for the continuous encounter; non-delegable duty existed and summary judgment for city on duty was erroneous. |
| Whether employer assumed a non-delegable duty (common carrier exception) to plaintiff when assault occurred (Beyer) | Beyer: while in custody, handcuffed, intoxicated, and transported by officer, she was wholly dependent and had surrendered control, so city owed non-delegable duty | Fort Wayne: argued exception is narrow and should not extend to police such that municipality faces near-strict liability | Held: Reversed. Court held Beyer had surrendered control while in custody and Fort Wayne owed a non-delegable duty; summary judgment for Fort Wayne on that issue was erroneous. |
| Whether Officer Rogers’ sexual assault falls within scope of employment for respondeat superior (Fort Wayne cross-appeal) | Beyer: respondeat superior applicable because assault occurred amid authorized duties (arrest, transport, custody), so jury should decide scope | Fort Wayne: sought summary judgment arguing assault was personal, outside scope of employment | Held: Affirmed trial court’s denial of summary judgment to Fort Wayne; whether acts were within scope is a question for the jury. |
Key Cases Cited
- Stropes v. Heritage House Children’s Center of Shelbyville, 547 N.E.2d 244 (Ind. 1989) (formulated Indiana test for non-delegable duty based on surrender of control/autonomy and extended exception beyond traditional common carriers)
- Dickson v. Waldron, 34 N.E. 506 (Ind. 1893) (early statement of carrier liability where passenger surrenders control to carrier)
- Robins v. Harris, 740 N.E.2d 914 (Ind. Ct. App. 2000) (held inmates’ dependency and jailers’ control justify non-delegable duty extension)
- Interim Healthcare of Fort Wayne, Inc. v. Moyer, 746 N.E.2d 429 (Ind. Ct. App. 2001) (extended non-delegable duty to home-health employer given severe dependence of care recipient)
- L.N.K. v. St. Mary’s Med. Ctr., 785 N.E.2d 303 (Ind. Ct. App. 2003) (declined to apply non-delegable duty where plaintiff regained autonomy as outpatient)