City of Fort Wayne v. Moore

CONCLUSION dismissing

The trial did not err complaint. Plan Commission’s

Affirmed.

MATTINGLY, J., NAJAM, J., concur. WAYNE,

CITY OF FORT Indiana

Appellant-Defendant, MOORE,

Richard D. Eleanor

T-G, Appellees-Plaintiffs. Inc.

No. 02A03-9806-CV-290. Appeals

Court of of Indiana.

March damages jury punitive

amount of that the had awarded.

FACTS The to are facts most favorable the verdict City negli- the was found liable for gent officer hiring police and retention1 of Stanford, Stanley police one of its former 16, Moore, August officers. On (T-G), T-G Inc. operating one of trucks. driving T-G’s While outside City’s limits, corporate ap- the Stanford proached vehicle on passed Moore’s it abruptly the berm. pulled Stanford in front stop truck and came to an immediate stop which caused Moore to the truck. Thereafter, exited Stanford his vehicle and approached Moore. to When Moore refused truck, get out of the him- Stanford identified self “an officer.” at 216. An Record altercation ensued struck where Stanford Indiana, Wayne, Timothy McAulay, Fort J. chest, placed Moore him in an arm Attorney Appellant. for bar, to kicked him and caused Moore to fall Powell, Beck, Edward E. Paul R. John B. ground. eventually Moore returned Williams, Sturm, Kast, Shambaugh, &Beck truck, whereupon Stanford slammed Indiana, Attorneys for Wayne, Appel- Fort shut, striking Stan- door Moore’s shoulder. lees. passers-by ford commented to that he was process making an 221. arrest. R. at OPINION incident, At the was off- time of Stanford BAKER, Judge duty, personal driving his vehicle and wearing a uniform or City of Fort Appellant-Defendant, apparel might a Stan- that alert citizen that (the City), Wayne appeals a verdict in ford was alterca- During a officer. appellees-plaintiffs Richard D. favor tion, displayed badge, never did Stanford (collectively, the and Eleanor Moore City Wayne, not mention the of Fort did not Moores), claiming the trial court erred handcuff Moore and never informed Moore judgment denying its for on the motion that was under arrest. contends, City Specifically, the in- evidence. alia, presented evidence at trial ter established evidence support claims the Moores’ that it failed Wayne first member of the Fort became a negligent hiring liable for the be could January on Pri- Department Police officer it negligent retention of Stanford, hiring had adminis- acted that the officer outside established test tered standard “routine” MMPI employment when he scope of committed him. R. 312. The results revealed at battery upon Richard. overly aggressive that Stanford “could be at times,” Additionally, assert the examiner recommended the Moores on cross- erroneously history be appor- prior that the trial court work “should appeal damage any hiring be- scrutinized” before decision was tioned the amount of award report third-party expressed made. R. at 317. The also and the tort-fea- tween sor, aggressive tenden- improperly it reduced the concerns about Stanford’s recognition Hosp., recently of a v. Charter 1. We re-affirmed Grzan 998). hiring negligent (Ind.Ct.App.1 and retention cause of action for potential “hyper-vigilant.” seeking damages battery. and his cies be for Eleanor pre-employment psycho- sought 315-16. This damages Moore also of con- loss logical evaluation was not shared with mem- complaint, sortium. In another count Safety (Safety bers Board of requested damages the Moores and T-G Board), entity charged the "with which was City hiring, alleging negligent from the City police appointing officers. R. at 689. training retention and of Stanford. T-G also sought damages for loss of Richard’s becoming to a of Fort Prior member injuries services as a result of the he sus- Wayne Department, Stanford had Police tained in the altercation. Stanford was Dallas, probationary police a officer in been with, of, charged ultimately and convicted During employment his Texas. with battery as a of result the incident. Thereaf- police department, in Stanford involved ter, he discharged from the de- off-duty of where dis- number incidents partment. played aggressive behavior toward others. generated by Several memoranda members 1997, 7, On November the trial court Department of the Dallas Police indicated granted summary City judgment for the “inability that Stanford demonstrated to respect negligent the Moores’ claim of result, temper.” control his R. at 414. As a training, genuine but determined that issues depart- Stanford was terminated from that of material fact respect remained with to the probationary following period. ment complaint. other counts forth in the set A pre-employment psycholog- at 244. Like the jury 17, February trial commenced on 1998. profile, discharge ical from the At the conclusion of the Moores’ case-in- Department Dallas Police had been com- chief, City judgment moved for on the 445, Safety municated to the Board. R. at evidence. trial granted the motion 694-95. as to T-G’s claim for the loss of Richard’s Stanford had also been a officer in services and on the Moores’ claim that the Landcaster, During City “apparent Texas. course of his could be liable on an authori- there, basis, employment ty” Stanford had been found but denied motion in all other guilty charges by of several de- respects and permitted the case proceed. partment’s Disciplinary July Board of At the February conclusion of the trial on charges Those 1989. included violation of jury returned verdict in favor department policy against “willfully mistreat- Stanford, against Richard Moore awarding ing using unnecessary violence toward $175,000 compensatory him damages. The another.” R. at 430. result As a of these jury $80,765 also awarded the sum of incidents, the Department Landcaster Police addition, against Richard City. In days. suspended 10 jury $250,000 awarded punitive Richard Approximately one month after Stanford damages, $25,000 and was awarded to Elea- commenced with the Fort Finally, $8,076.70 nor. awarded Wayne Department’s Police divi- narcotics against Eleanor R. at 197. There- sion, complaints were made fellow officers after, 4, 1998, on March the trial court made regarding aggressive Stanford’s loud and be- entry following respect dam- havior, along negative with his to- attitude age award: the public. ward As a result these com- finding The court now the verdicts in this plaints, eventually Stanford was transferred cause to be the jury, true verdicts of the from that division. Stanford was also the judgment jury’s is now ENTERED on the subject of complaints numerous citizen re- cause, verdicts this as limited I.C. garding control, unprofessional “out 34-4-34-5, § for Plaintiff Richard D. racially charged and behavior” while em- Moore against Stanley and Defendant W. ployed Wayne police with the Fort depart- $175,000.00 Stanford in the amount of actu- 368-407, R. at ment. $50,000.00 damages al punitive and dam- incident, a result the August,

As 1994 ages; for Plaintiff Eleanor Moore and complaint Moores and T-G against Stanley filed on Defendant W. Stanford in 31, 1995, May City Stanford, and the amount damages of zero actual and superior, an respondeat Rich- der the doctrine of for Plaintiff damages; punitive zero employ is liable for the acts of against the Defendant D. Moore ard which committed the course ees were within in the amount Wayne, Indiana Fort employment. Stropes of their v. $80,765.00; Plaintiff Eleanor and for Center, Heritage House Childrens city of Defendant against the (Ind.1989); see also Grzan in the amount Wayne, Indiana Fort (Ind.Ct. Hosp., Charter 702 N.E.2d $8,076.70.... App.1998). acting An the denial appeals now 197. The R. at acting, he is the evidence judgment on of its interests of his part, at least to further the respect to cross-appeal with the Moores’ Henson, employer. Konkle v. damages. the award an (Ind.Ct.App.1996). 456 Where em ployee partially acts in self-interest but is AND DECISION DISCUSSION “partially serving employer’s inter still his Review I. Standard Of ests,” liability will attach. Id. sim initially that when this note We ply because an act could not have occurred ruling on a mo a trial court’s court reviews employer’s access to the facilities without evidence, apply we judgment on the tion for bring scope employ not it within the does court, the trial consid as the same standard ment. Id. at 457. reasonable infer only the evidence and ering note our courts We also that while nonmoving party. to the ences most favorable employer that an can be have determined (Ind.Ct. Butts, 149 Young 685 N.E.2d vicariously liable for the criminal acts of an ap on the evidence is Judgment App.1997). employee, employee’s the test is whether the only there is no substantial evi if propriate by actions were at least for a time authorized inference to be drawn or reasonable dence employer. Stropes, 547 N.E.2d at 250. element of support an essential therefrom to employ If it is determined that none of the judgment on the evidence the claim. Id. A authorized, respon ee’s acts were there is no only points if the evidence should be entered Moreover, superior liability. acts deat Id. by not reached unerringly to a conclusion employer responsible which the is not are Employer’s Ins. Co. v. Aust jury. Pacific initiative, employee’s those done “on the own (Ind. Inc., Elec., 1229 gen’s per with no intention [citations omitted] trans. denied. Ct.App.1996), service part form it as of or incident to the at 247. If employed.” for which he is Id. Employment Scope II. Of were autho employee’s of the actions some City number of raises a While rized, question of the unautho whether errors, only one we need address alleged employ rized acts were within Specifically, the dispositive. which Konkle, jury. is one for the ment denying court erred in that the trial asserts However, if none of the at 457. judgment on the evidence be authorized, the matter employee’s acts were that the encounter undisputed it cause was Id. question is a law. Moore occurred at a Stanford and between Here, rely upon Stropes, where the Moores acting within the was not time when Stanford an em- supreme court determined that our course and vicariously lia- ployer-nursing home could be result, main As a police officer. mentally re- ble for the sexual assault of theory it cannot be liable under tains that employee, tarded resident because because, to hold oth respondeat superior home, nursing began the encoun- aide at the erwise, negligent tort of “expand the would an authorized act which performing ter beyond pa its current hiring retention Specifi- employer’s business. furthered his at 20. Appellant’s Brief rameters.” cally, Stropes the facts in revealed the victim and began to bathe begin our with the nurse’s aide We discussion bedding acts that he change his which were maxims involv and well-established familiar Stropes, perform. liability. vicarious Un- was authorized ing imposition Thereafter, proceeded liability Id.; N.E.2d at 249. deat superior proper. see victim, sexually molest the an act not autho- Eagle also Mach. Co. v. American Dist. Tel. Co., employer. Stropes (1957), rized Ind.App. 140 N.E.2d 756 tram, (no noted that the unauthorized acts were not liability denied vicarious of em- acts, drastically different from the authorized ployer security when company employees touching pa- both repair shop inasmuch as involved stole items from a because result, body. tient’s As a our they, unclothed su- evidence demonstrated that were not preme court determined because both inventory authorized to touch move store alarm). authorized unauthorized acts were responding to an character, issue and were of similar there Konkle, presented As in the evidence here question of fact for sum- support does not an inference that Stanford mary judgment nursing of the favor home- any appreciable acted to extent to further proper. not Id. at bring interests so as to his acts within Stropes, Unlike there is no here evidence Rather, employment. ap- it is of Stanford’s acts were those autho- parent that Stanford’s conduct was sufficient- words, rized In other none of ly place purpose divorced be actions could said have his employment impose so duties City. served or purpose furthered a result, liability upon the As a the trial The uncontroverted evidence demonstrated denying City’s court erred in Wayne police that Fort were officers not judgment on the evidence. make stops authorized to traffic outside the Judgment reversed.2 City’s boundaries, out-of-uniform, corporate or an car. at unmarked 846-47. GARRARD, J., concurs. Moreover, stops such unauthorized were a ROBB, J., with disciplinary opinion. cause for dissents action. R. 846-47. alsoWe note that unlike the circumstances in ROBB, Judge, dissenting Stropes, the evidence here fails demon- determining In that the trial court erred strate that had Stanford access Moore City’s denying the motion judgment for on because of his officer. evidence, concludes that Thus, say we began cannot that Stanford acting not within the scope of any performing may authorized act which his employment with when he as- have “ripened” “melted” or into some unau- Moore. saulted I believe that act, thorized so to hold the vicarious- “scope has applied employment” test ly liable. narrowly case, too to the facts of this Finally, we note that this more case is akin therefore, respectfully I dissent. Konkle, to the presented circumstances employer An vicariously liable for the where this court determined that church wrongful employees acts of its committed not liable the sexual misconduct of its their employment. War minister, because the acts of molestation Trucking, ner Inc. v. Casualty Carolina Ins. by perpetrated the minister were not those Co., (Ind.1997). As ex authorized the church. We noted that the plained by our supreme court: engaged any minister not teaching or pastoral acts when the sexual Acts for respon- which the is not misconduct was committed and concluded sible are done those ‘on the employee’s liability could not attach though even own initiative no with intention to perform place some the acts took in the part church it as of or incident to the service for result, building. Id. at 457. aAs we con- However, which he is employed.’ an em- entry cluded summary judgment ployee’s wrongful act may still fall within in favor of the Church on the of respon- issue of his if purpose light disposition In our the issues set cross-appeal respect damage forth with to the award. above, we need not address the Moores' claim on extent, City’s stops rized to make traffic outside the was, to further appreciable an boundaries, out-of-uniform, business, corporate or in even if the act was employer’s car, stops by an intention an unmarked and that such were motivated predominantly disciplinary agree cause for action. employee himself. to benefit City’s policy the evidence showed that Ctr., Heritage House Childrens Stropes v. was that not make such its officers should (citations (Ind.1989) stops. the fact omitted). may stop of Moore not have been within held that Stropes, supreme our In rules, or even within the dictates of a claim of entry summary judgment on governing stops statute traffic offi- in favor of a children’s respondeat superior driving cers out of un- who are uniform been patient who had center and cars, 9-30-2-2, § marked see Ind.Code does sexually employee an assaulted necessarily take his conduct outside the error, as the “nature of was in center employment. In Warner Truck- least, were, sufficiently very asso- at the acts ing, apparently a truck driver was en route authorized employee’s] [the ciated with employer’s premises gas from his to a station summary judg- escape dismissal on duties night before he was scheduled to make a court stated: Id. at 250. The ment.” delivery the semi-trailer tractor he was case the facts of this jury presented A driving collided with another vehicle. The employee] acted to an might [the find that employee had consumed several alcoholic master’s extent to further his appreciable beverages evening, despite company were, business, “at least that his actions prohibited rules which employer, by his for a authorized driving company if he con- vehicle had he was to the service for which related day. The motorists sumed alcohol by to an extent employed, and motivated company the trucker collided sued the whom interests,” that, employer’s] and there- [his theory superior. The respondeat on a of fore, scope the wrongful his acts fell within company summary judgment, for con- moved employer] and employment [the of his tending no-drinking policy that estab- Conversely, a accountable. should be as a matter of law that the trucker was lished acts might employee’s] find that were [the the time of the not authorized drive at purpose” place in so “divorced acting therefore not in the accident and was preclude as to from his duties employment. The trial court liability employer. of on his imposition the motion, supreme denied the and our affirmed, stating though an em- “[e]ven Id. rules, orders, ployee employer’s violates the majority correctly any that if of that Moore could have and would have been I that narrowly believe has so was, charged, Tapp as the defendant with meaning “scope employ- construed the of of battery on a law enforcement officer because ment” that no employee misconduct an performing an act in the nature would ever be to employer. attributed of a incongruous officer at the an majority’s Under reasoning, we would result. always find as a of matter law that employer vicariously is not attempts

The further liable for the distin- guish Siropes legiti- this case from misconduct because no “evidence here mate gives fails demonstrate ever an employee in- Stanford had access to Moore because of his structions to commit misconduct. I cannot Op. agree officer.” “scope employment” prong 608. However, I respondeat superior liability believe evidence demon- limiting.3 is so Although majority, "difficulty maintaining 3. not discussed his self control.” foreseeability my opinion issue bolsters employed by R. 52. While the Dallas Police majority’s scope employment analysis Department, Stanford was involved an off- too limited under the circumstances of this case. duty charge incident which resulted in a of as- foreseeability engaging The type of Stanford in this him, being sault filed r. and was the great, of misconduct was even defendant in a civil lawsuit filed an arrestee knowledge, turned its head to the alleging that Stanford had used excessive force consequences of Stanford's conduct. Prior to effecting pre-employ- arrest. R. 32-45. A City, Stanford had been psychological ment Dallas, evaluation conducted at discharged police depart- from the Texas request of the resulted ment due to caution that several documented incidents of "inability temper," scrutinizing maintain control of his r. "one should consider further Stropes court stated in supreme wrongful of the act should be a “the nature in the assessment whether

consideration employee’s extent” the acts fall to what employment, citing sever- jurisdictions which focus

al cases from to the con- relates

on “how the wrongful the commission

text in which (emphasis act N.E.2d at arose.”

added). Although attacking motorist is not conduct for a the normal course of

within officer, attack on Moore Stanford’s stop. context

began in the traffic trial court hold that the

would therefore denying judg-

correct in allowing

ment evidence and the case on the proceed for the determination

of whether misconduct arose with- employment.4

in the INDUSTRIES, Petitioner, INC.,

PPG BOARD TAX

STATE OF

COMMISSIONERS,

Respondent.

No. 49T10-9611-TA-00150. Court of

Tax Indiana.

March arose, history hiring.” being majority's work before 28. After attack R. on Moore makes the City, scope analysis hired Stanford was removed from too restrictive. complaints division after narcotics aggressive fellow about his officers "loud 4. found the issue of of em- subject R. behavior.” 30. He was the of at ployment dispositive appeal. my of this Under during complaints least three citizen his tenure issue, resolution of the fur- 374, 387, Despite with the these parties' ther of the would discussion issues be incidents, repeated to clothe chose Stan- necessary. because the has authority ford with the officer and only employment, addressed have put public trust. him in a This fore- issue, my limited comments to that well. seeability, coupled with the context which the The notes instructions, engages expressly or in for- or by authorized employee’s the actions were actions, may be held bidden question the of whether the employer, his wrongful the act if the em- accountable for were of unauthorized acts within acting employ- ployee was jury, one for the but if none of employment is 686 N.E.2d at 105. ment.” authorized, then employee’s acts were 607, question Op. law. the matter is a is, Stanford felt he The fact of the matter Henson, citing v. 457 Konkle authority stop duty and the had the However, I believe the (Ind.Ct.App.1996). investigate what he al- Moore’s vehicle and incorrectly to determine majority proceeds driving reckless leged to be an incident of of law that none of Stanford’s as matter him had clothed because authorized actions were authority police officer. of a Whether stop purposes of our stop was a valid for attempt distinguish Stropes, In an department purposes criminal law or for majority that “there is no evidence states inquiry is not relevant to the be- discipline those autho- any of Stanford’s acts were stop the sort of Making us. a traffic City.” Op. (emphasis fore rized at 608 added). every day by police offi- engaged in evidence that conduct relies on conduct reserved cers. It is the sort of Wayne officers were not autho- police Fort exclusively citizenry police precisely almost strates that: testified that ordinary roadway truck, An citizen on the only subject- officers. he thereby exited his may driver be frus- attack, who observes reckless physical ed himself to be- Stanford’s trated, fearful, angry may or even alert cause Stanford identified himself as an offi- authorities, likely would not be to feel but 216-17, himself, cer. R. both vehicle, provisions stop despite free to in testimony in his his written and in “Miscella- our law for citizen’s arrests. Ind.Code See Report,” neous Incident stated that he felt it § 35-33-1-4. duty investigate was his as a sworn officer to alleged driving. Moore’s Moreover, reckless he Moore testified that did not Exhibit R. 282. It was Stanford’s feel he the attack or could resist defend police officer which led himself due to Stanford’s identification of Moore, him stop to believe he himself as an officer for fear criminal could and it regard, was his identification himself repercussions. R. 758-60. In this as an officer concerning case which we note in a store led Moore to submit to re- security quests guard customer who a store he resisted exit his vehicle. shoplifting, the fact who accused her of Finally, likens the facts guard happened off-duty, also to be an Konkle, this ease to those of in which this out-of-uniform officer resulted in a court determined that a church was not liable charge battery the customer of on a for the sexual misconduct be- minister State, Tapp law enforcement officer. cause the minister not engaged any (Ind.Ct.App.1980). In af- pastoral acts when the sexual misconduct conviction, firming the this court stated that occurred. I believe that Stanford agreed it with a line of cases engaged in the of a acts officer jurisdictions that “it is the nature the acts stopped subsequent Moore. The performed whether and not the officer is on attack on Moore out of arose inci- uniform, duty, or off out of which dent to Stanford’s exercise of au- engaged determines whether officer is thority stopping the vehicle. fail see performance official duties.” Id. at how Stanford’s conduct could be considered added). (emphasis Had Moore resisted “divorced ... from his duties.” way, causing any injury, however in- Op. at 608. Stanford, significant, to I have little doubt

Case Details

Case Name: City of Fort Wayne v. Moore

Court Name: Indiana Court of Appeals

Date Published: Mar 10, 1999

Citation: 706 N.E.2d 604

Docket Number: 02A03-9806-CV-290

Court Abbreviation: Ind. Ct. App.