Dave Stafford for www.theindianalawyer.com

Two women who were sexually assaulted in separate cases by on-duty police in Evansville and Fort Wayne prevailed on appeal in their civil lawsuits against the cities Friday after trial courts had ruled in favor of the municipalities.

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 these cases. The appellate panel ruled it did, finding for the officers’ victims.

In the first case, Jennifer Cox sued Evansville over her 2009 assault by then 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, according to the record. He later was convicted of criminal deviate conduct and sentenced to 12 years in prison.

Cox’s suit initially was filed in federal court but later refiled in state court. Last August, her motion for partial summary judgment was denied on the non-delegable duty exception to respondeat superior liability — also known as the common carrier exception, prompting this interlocutory appeal.

“Officer Montgomery retained responsibility for Cox’s safety throughout their interaction. As for Cox’s abilities to control her environment and protect herself from harm, we note, first, that she was intoxicated — she had been drinking throughout the night, her girlfriend gave her car keys to Officer Montgomery, and the officer found it necessary to drive her home. And while it is true that she was in her residence and technically able to attempt to fight against a sexual assault, it is also true that Officer Montgomery was in full uniform, which included his badge and gun. And throughout the night, their interaction involved Officer Montgomery’s exercise of his official duties as an officer of the law,” Judge John Baker wrote for the panel.

“Under these circumstances, we find as a matter of law that Cox surrendered her autonomy and control to Officer Montgomery when he first responded to her girlfriend’s home. She did not reclaim her autonomy and control by the simple act of walking through her front door when he followed right behind her,” as Evansville argued. “Therefore, Evansville and EPD owed a non-delegable duty of care to Cox and the trial court erred by granting summary judgment in their favor on this issue and by denying Cox’s partial summary judgment motion. We reverse with instructions to grant Cox’s motion with respect to the duty element of her claim and remand for further proceedings.”

Baker wrote that Babi Beyer’s suit against Fort Wayne was more easily decided in her favor. 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 the custody of then Officer Mark Rogers, who 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.

“Under these circumstances, we have little difficulty concluding that, at the time of the sexual assault, Beyer had surrendered her control and autonomy to Officer Rogers. Consequently, as a matter of law, Fort Wayne owed a non-delegable duty of care to Beyer. The trial court erred by granting Fort Wayne’s motion for summary judgment in this regard and we reverse that portion of its order and remand for further proceedings,” Baker wrote.

The panel also rejected Fort Wayne’s cross-appeal challenging the trial court’s denial of its motion for summary judgment on Beyer’s respondeat superior claim.

“While the ultimate acts of (Rogers’) sexual assault may have been for his own personal gratification, the context in which they occurred was made possible by the authorized duties of his employment as a police officer. Under these circumstances, whether he was acting within the scope of his employment when he sexually assaulted Beyer is a question of fact for a jury. Therefore, the trial court properly denied Fort Wayne’s summary judgment motion on this issue.”

The consolidated cases are Jennifer Cox v. Evansville Police Department and The City of Evansville; Babi E. Beyer v. The City of Fort Wayne, 82A01-1610-CT-2299.