Katie Stancombe for www.theindianalawyer.com

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 respondent 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.”

“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 by 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.

AUGUST 2, 2018 REGIONAL INSPECTORS GENERAL AUDIT OF THE EVANSVILLE HOUSING AUTHORITY

Law Enforcement Groups Endorses Donnelly For Re-Election

By Dionte Coleman
TheStatehouseFile.com

INDIANAPOLIS—Indiana’s largest law enforcement group endorsed Sen. Joe Donnelly for re-election on Monday.

The Indiana State Federal Order of Police, which has about 14,000 members, announced its support of the incumbent Democrat at a press event following a unanimous decision by its executive committee.

“(Donnelly) has proven himself since 2013 to be a supporter of law enforcement and their families. He has proven himself to be a supporter of all the citizens in the state of Indiana,” said Bill Owensby, FOP president.

Donnelly is in the middle of a tight re-election fight as he is challenged by Republican Mike Braun and Libertarian Lucy Brenton. A recent poll showed Donnelly with a slight lead over Braun with Brenton’s support having the biggest impact on the Democrat.

Donnelly supported law enforcement during his six years in the U.S. Senate in last by making bulletproof vests available to police and helping the families of fallen officers, the FOP noted. Donnelly, along with Sen. Todd Young, R-Indiana, introduced the Law Enforcement Mental Health and Wellness Act, which was signed into law by President Trump earlier this year. The goal of the law is to provide officers with tools to take care of their mental health.

Donnelly said that he believes that people should be able to sit on their front porches at night and not be worried about being in danger, or in the case of an officer’s family, not worry about their loved one being in danger.

Donnelly had an understanding about the dangers that an officer’s family face because his uncle, who lived fewer than two miles away, was a police officer. He said he recalled the stress that was constantly on the faces of his mother and aunt whenever his uncle was out on duty.

“I’m incredibly grateful for the endorsement in the Senate race. Law enforcement has been a part of my family for an incredibly long time and was part of every day,” Donnelly said.

Donnelly noted that police officers are out on the street even when it is incredibly dangerous. The incumbent senator pledged to have the backs of law enforcement in the Senate.

“This endorsement is for who they (FOP) want as the next senator, and I am honored to have that,” Donnelly said. “But why it should matter is that the endorsement came not from anything that I did as a politician, but because of what I did as a person to work together to make life better in our state and to make life better for the officers that serve us.”

The Indiana Chamber of Commerce, which has traditionally endorsed Republicans, has declined to back either Donnelly or Braun in the Senate race.

Meanwhile, the campaign, one of the most competitive in the nation, continues to heat up as Braun unveils a new television ad attacking Donnelly as someone whose family business outsourced jobs to Mexico and for casting votes in Congress with former President Barack Obama.

Donnelly’s campaign has been hammering Braun with ads citing news reports of how the challenger gets many of his business’ products from China and his treatment of his workers, including failure to pay overtime for their work.

FOOTNOTE: Dionte Coleman is a reporter for TheStatehouseFile.com, a news website powered by Franklin College