                                                                        FILED
                                                                    Sep 22 2017, 7:41 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
JENNIFER COX                                               EVANSVILLE POLICE
John P. Young                                              DEPARTMENT AND THE CITY
James H. Young                                             OF EVANSVILLE
Young & Young                                              Keith W. Vonderahe
Indianapolis, Indiana                                      Robert L. Burkart
ATTORNEYS FOR APPELLANT/                                   Ziemer Stayman Weitzel &
CROSS-APPELLEE BABI E. BEYER                               Shoulders
                                                           Evansville, Indiana
Edward E. Beck
John S. Bloom                                              ATTORNEY FOR APPELLEE/
Shambaugh, Kast, Beck & Williams, LLP                      CROSS-APPELLANT THE CITY
Fort Wayne, Indiana                                        OF FORT WAYNE
                                                           Carolyn M. Trier
                                                           Trier Law Office
                                                           Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Cox,                                              September 22, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           82A01-1610-CT-2299
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
Evansville Police Department                               The Honorable David D. Kiely,
and The City of Evansville,                                Judge
Appellees-Defendants                                       Trial Court Cause No.
                                                           82C01-1209-CT-479



Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017               Page 1 of 27
                                                                 Court of Appeals Case No.
      Babi E. Beyer,                                             82A01-1610-CT-2299
      Appellant-Plaintiff/Cross-Appellee,                        Interlocutory Appeal from the
                                                                 Allen Superior Court
              v.                                                 The Honorable Nancy Eshcoff
                                                                 Boyer, Judge
      The City of Fort Wayne,                                    Trial Court Cause No.
      Appellee-Defendant/Cross-Appellant                         02D01-1506-CT-247




      Baker, Judge.


[1]   Two women were sexually assaulted by police officers while those officers were

      on duty and engaged in certain activities authorized by their employers. The

      two women filed lawsuits against their respective municipalities, raising claims

      of vicarious liability for the officers’ negligence by virtue of respondeat superior.

      Normally, a respondeat superior claim requires a showing that the employee

      was acting in the scope of employment when committing the alleged tort.

      There is an exception to that rule, however, when, under certain circumstances,

      the employer has assumed a non-delegable duty of care to the victim. Both

      women argue that this exception applies to their respective cases; both trial

      courts granted summary judgment in favor of the municipalities on this issue.

      Both women appeal these rulings.


[2]   With respect to Jennifer Cox, we reverse and remand for further proceedings.

      With respect to Babi Beyer, we reverse the trial court’s ruling and remand for

      Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017          Page 2 of 27
      further proceedings. Additionally, the City of Fort Wayne cross-appeals the

      trial court’s denial of Fort Wayne’s summary judgment motion on Beyer’s

      respondeat superior claim. We affirm that portion of the trial court’s order.


                                                      Facts
[3]   The two cases included in this appeal are wholly unrelated. They have different

      parties and different facts and stem from different parts of the state. They have

      been consolidated on appeal, however, because they share a common issue of

      law.


                                               Cox v. Evansville

[4]   On March 1, 2009, Cox was with her girlfriend, Debbie Jackson, at Jackson’s

      house in Evansville. Cox and Jackson began drinking and arguing, and shortly

      after 4:00 a.m., Jackson called the Evansville Police Department (EPD). EPD

      protocol requires that two officers respond to a domestic violence call, though

      occasionally one officer will call back to dispatch and tell the other officer not to

      proceed if the first officer has arrived at the scene and determines that he can

      handle it alone.


[5]   After Jackson called EPD, Officer Martin Montgomery and Officer Kathy

      Winters were dispatched to the scene. Before Officer Montgomery arrived at

      the scene, he called off Officer Winters and proceeded to the scene alone. At

      4:12 a.m., Officer Montgomery arrived at Jackson’s home. Jackson gave the

      officer Cox’s car keys, and Officer Montgomery instructed Cox to get into his

      marked patrol vehicle. She complied, and he drove her home.

      Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 3 of 27
[6]   Officer Montgomery and Cox arrived at her apartment around 4:26 a.m., and at

      4:28 a.m., he radioed EPD dispatch that he had “cleared” the run and was

      available for another dispatch run. He then followed Cox into her apartment

      and closed the door. Officer Montgomery took off his gun belt and coerced

      Cox to perform sexual acts on him, including oral, vaginal, and anal sex.

      Afterwards, he put his gun belt back on and left the apartment. Officer

      Montgomery was eventually found guilty of criminal deviate conduct and

      received a twelve-year sentence.


[7]   Originally, Cox filed a complaint in federal district court that included a state

      law negligence claim. On June 18, 2012, that complaint was dismissed without

      prejudice to Cox’s right to refile the state law negligence claim in state court.

      On September 12, 2012, Cox filed a complaint against EPD and the City of

      Evansville (Evansville). In relevant part, the complaint raises a negligence

      claim, alleging that Officer Montgomery assaulted her in the course and scope

      of his employment for Evansville and that Evansville and EPD are liable to

      Cox. Cox provided three theories of liability: (1) respondeat superior; (2) non-

      delegable duty exception to respondeat superior; and (3) negligence in Officer

      Montgomery’s hiring, retention, and supervision. Cox eventually withdrew the

      third theory of liability.


[8]   On May 7, 2015, EPD filed a motion to strike Cox’s theory of liability based on

      the non-delegable duty exception to respondeat superior. On May 15, 2015,




      Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 4 of 27
      Evansville and EPD filed a motion for summary judgment. 1 On September 1,

      2015, Cox filed a motion for partial summary judgment. Following a hearing

      on all pending motions, on August 4, 2016, the trial court granted Evansville

      and EPD’s motion to strike and partially granted their motion for summary

      judgment with respect to the theory of liability based on the non-delegable duty,

      or “common carrier,”2 exception. In relevant part, the trial court found as

      follows:


               [T]he common carrier exception to the doctrine of respondeat
               superior has no application to the facts of this case. The EPD
               had no duty to Plaintiff once Officer Montgomery “cleared the
               run,” Plaintiff exited the police vehicle and Plaintiff entered her
               apartment.


      Cox Appealed Order p. 1. The trial court denied Cox’s motion for partial

      summary judgment. Cox now brings this interlocutory appeal of the trial

      court’s ruling that the non-delegable duty exception does not apply to this case.


                                              Beyer v. Fort Wayne

[9]   On September 1, 2013, at approximately 1:42 a.m., several Fort Wayne Police

      officers were dispatched to Lima Road. When they arrived at the location, they

      observed Beyer, who initially appeared to be asleep, in a vehicle that was




      1
       Evansville and EPD had filed an earlier summary judgment motion on December 20, 2012, but the trial
      court denied that motion and denied their request to certify the ruling for interlocutory appeal.
      2
       As will be fully explained below, historically, this exception to the respondeat superior doctrine applied
      only to common carriers; it has since been expanded to other types of entities. Occasionally, practitioners
      and courts still refer to it as the “common carrier” doctrine, as did the trial court in Cox’s case.

      Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017                     Page 5 of 27
       stopped in the southbound lane of the road. Upon further observation, the

       officers determined that she was intoxicated. They removed her from her

       vehicle and placed her in the custody of Officer Mark Rogers, who put

       handcuffs on her and escorted her to the back seat of his police vehicle.


[10]   Officer Rogers drove Beyer to the Allen County Lockup. When they arrived,

       she began vomiting, and Officer Rogers decided to take her to the hospital. She

       was admitted to the emergency room, where hospital employees drew blood.

       At 3:31 a.m., the blood draw results showed a blood alcohol level of .2555. The

       hospital would not have released Beyer in her condition had she not been in the

       custody of the police, but it did so around 4:20 a.m. because she was in custody

       and could be watched by police. Hospital employees informed Officer Rogers

       that Beyer needed to be observed for six hours and should sleep on a mattress

       on the floor.


[11]   Officer Rogers again placed Beyer in the backseat of his vehicle outside the

       hospital. As the officer was starting the vehicle, Beyer complained that the

       handcuffs were painful, at which time he got out of the car, opened her door,

       and, while she was still handcuffed, fondled her breasts and then loosened her

       handcuffs. Officer Rogers got back into the car and commented on Beyer’s

       attractiveness.


[12]   Because of her level of intoxication, Beyer slipped in and out of consciousness,

       but recalls that after driving around for some period of time and making several

       stops, Officer Rogers stopped the vehicle in an area unknown to her. He


       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 6 of 27
       grabbed Beyer by the arm and pulled her from the vehicle, walking her barefoot

       through a grassy area with twigs and stones, and directing her to a bench.

       Officer Rogers again sexually molested her and proceeded to have sexual

       intercourse with her. He was armed and in full uniform during the assault.

       Afterwards, Officer Rogers drove her to a parking lot, where he removed her

       from his vehicle and placed her in a police crime scene van. He then drove her

       home in the van. At 5:29 a.m., Officer Rogers reported that he had completed

       the run. On August 28, 2014, Officer Rogers pleaded guilty to three felonies:

       sexual misconduct, official misconduct, and rape.


[13]   On June 24, 2015, Beyer filed a complaint against Officer Rogers and the City

       of Fort Wayne (Fort Wayne), alleging liability against Fort Wayne based on

       two theories: respondeat superior and the non-delegable duty exception.3 On

       January 14, 2016, Fort Wayne filed a motion for summary judgment. On

       August 23, 2016, the trial court partially granted the motion for summary

       judgment with respect to the theory of the non-delegable duty exception and

       otherwise denied it. In relevant part, the trial court held as follows:

                A. Vicarious Liability Under the Doctrine of Respondeat
                Superior


                                                          ***




       3
         Beyer also included a theory of negligent hiring, training, and supervision, but did not oppose Fort Wayne’s
       summary judgment motion on this theory and does not appeal the trial court’s summary judgment motion on
       this matter.

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017                    Page 7 of 27
        Here it is undisputed that some of Rogers’ acts were within the
        scope of his employment, i.e., taking Beyer into custody,
        handcuffing her, transporting her to lockup for a breath test,
        transporting her to St. Joseph Hospital for a blood draw, and
        then transporting her back to lockup. Therefore, some of Rogers’
        acts were authorized by Fort Wayne. . . .


        . . . [H]ere, it is clear that Rogers’ position as the OWI police
        officer gave him the means and control over individuals who
        were intoxicated. . . .


                                                  ***


        Some of Rogers’ actions were at least initially authorized.
        Whether his actions were within the scope of employment is a
        genuine issue of material fact to be determined by the Jury.


                                                  ***


        B. [Non-Delegable Duty Exception]


        Indiana recognizes the common carrier exception to the Doctrine
        of Respondeat Superior. . . . Liability is imposed because of the
        employer’s assumption of responsibility for its passengers’ safety.
        Under the non-delegable duty exception, the employer can be
        held liable for any violation by its employee of the employer’s
        non-delegable duty to protect the individual, regardless of
        whether the act was within the scope of employment.


                                                  ***


        . . . Fort Wayne argues . . . that the non-delegable duty exception
        is a narrow one. Application to a police department would result
        in the strict liability of a municipality for its officers’ acts.
Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 8 of 27
                                                         ***


               There are no Indiana cases which have extended the common
               carrier exception to police officers.


               The Court finds no genuine issues of material fact; and, as a
               matter of law, enters judgment for Fort Wayne and against Beyer
               on the issue of liability under the theory of non-delegable
               duty. . . .


[14]   Beyer Appealed Order p. 4-9. Beyer now brings this interlocutory appeal with

       respect to the theory of the common carrier exception, and Fort Wayne cross-

       appeals with respect to the theory of respondeat superior.


                                     Discussion and Decision
[15]   All issues before us in this appeal arise from the trial courts’ summary judgment

       orders. Our standard of review on summary judgment is well established:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 9 of 27
                                      I. Non-Delegable Duty
[16]   Cox and Beyer both argue that the trial courts in their respective cases

       erroneously granted summary judgment in favor of Evansville and Fort Wayne,

       respectively, on the issue of assumption of a non-delegable duty.


                                          A. Basic Principles
[17]   The doctrine of respondeat superior “imposes liability, where none would

       otherwise exist, on an employer for the wrongful acts of his employee which are

       committed within the scope of employment.” Stropes v. Heritage House Children’s

       Center of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989). Under certain

       circumstances, however, there is an exception to the requirement that the

       employee’s actions must have been committed within the scope of employment:

       “where an employer has assumed a non-delegable duty to protect a person and

       his employee inflicts injury on that person, the doctrine of respondeat superior

       will not interdict the imposition of liability on the employer even if the wrongful

       act was outside the scope of employment.” Id. at 251.


[18]   Historically, this exception was applied to common carriers, and is often

       referred to as the “common carrier exception.” Id. A “common carrier” is “[a]

       carrier[, such as a railroad or an airline,] that is required by law to transport

       passengers or freight, without refusal, if the approved fare or charge is paid.”

       Black’s Law Dictionary 205 (7th ed.). Our Supreme Court has observed that

       “Indiana has identified the principles underlying its adoption of the exception,

       and, in fact, has extended it to reach enterprises other than common carriers.”

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 10 of 27
       Stropes, 547 N.E.2d at 252 (noting that it has been extended to theater

       managers, innkeepers, and merchants).


[19]   The Stropes Court explained the doctrine as follows:


               The imposition of liability under the common carrier exception is
               premised on the control and autonomy surrendered by the passenger to
               the carrier for the period of accommodation. This Court in Dickson
               stated that an enterprise which has induced an individual to give
               over the control of his personal comfort and safety to its care
               assumes a special duty to protect him from injury, particularly
               from its own employees. [Dickson v. Waldron, 135 Ind. 507, 34
               N.E. 506 (Ind. 1893).] . . . .


               Under respondeat superior, employer liability is coextensive with
               the powers and advantages engendered by the employment
               relationship. Because liability is predicated conceptually on the
               employer’s ability to command or control his employee’s acts, an
               employer can be held responsible only for those acts of his
               employee which are committed within the scope of their
               employment relationship. Under the common carrier exception to
               respondeat superior, however, the range of employee activities deemed to
               be under the employer’s dominion is irrelevant. Liability is predicated on
               the passenger’s surrender and the carrier’s assumption of the
               responsibility for the passenger’s safety, the ability to control his
               environment, and his personal autonomy in terms of protecting himself
               from harm; therefore, the employer can be held responsible for any
               violation by its employee of the carrier’s non-delegable duty to protect the
               passenger, regardless of whether the act is within the scope of
               employment.


       Id. at 252-53 (emphases added) (internal footnotes and citations omitted).

       Unlike other jurisdictions, “Indiana’s common carrier exception . . . is premised

       on the ceding of power to ensure one’s safety and protection from an individual
       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017     Page 11 of 27
       which purports to provide it, and the exception, again by contrast [with other

       jurisdictions], has been applied to enterprises other than common carriers.” Id.

       at 253.


                                                 B. Caselaw

                                      1. Exception Extended
                                                   a. Stropes
[20]   In Stropes, a child resident of a residential children’s center sued the center for

       damages after he was sexually assaulted by a nurse’s aide employed by the

       center. Id. at 246. In relevant part, the resident claimed that the center was

       liable whether or not the nurse’s aide was acting within the scope of his

       employment under a theory of a non-delegable duty.


[21]   After going through the analysis summarized above, our Supreme Court turned

       to whether the common carrier exception should be extended to the situation

       before it in Stropes:


               This Court has stated that “[t]he duty to exercise care for the
               safety of another arises as a matter of law out of some relation
               existing between the parties, and it is the province of the court to
               determine whether such a relation gives rise to such duty.” Miller
               v. Griesel (1974), 261 Ind. 604, 611, 308 N.E.2d 701, 706. The
               resolution of this legal question, however, cannot be reached by a
               mechanical categorization. An examination of the relevant
               relationship here against the template of the common carrier
               exception and the rationales underlying it reveals that Heritage
               clearly assumed a non-delegable duty to be responsible for the
               care and safety of David Stropes. When Heritage accepted

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 12 of 27
               David as a resident of its facility, it was fully cognizant of the
               disabilities and infirmities he suffered which rendered him unable
               to care for himself and which, in fact, undoubtedly formed the
               basis of their relationship. Their “contract of passage”
               contemplated that the entire responsibility for David’s comfort,
               safety and maintenance would be on Heritage and that the
               performance of these tasks would be delegated to its employees.
               Given the degree of David’s lack of autonomy and his
               dependence on Heritage for care and the degree of Heritage’s
               control over David and the circumstances in which he found
               himself, we find that Heritage assumed a non-delegable duty to
               provide protection and care so as to fall within the common
               carrier exception. The standard of care which Heritage owed to
               David, therefore, was that actual care be used by Heritage and its
               employees to provide that protection. The trial court was in error
               to summarily reject his claim that such a duty existed.


       Id. at 253-54. Our Supreme Court further explained that “[w]hen analyzing the

       common carrier exception, the significant relationship is that of the carrier and

       its passenger, and the imposition of liability is premised on the control that is

       surrendered to the one by the other.” Id. at 254.


[22]   The Stropes Court found, as a matter of law, that the center had a non-delegable

       duty to the resident, regardless of whether the nurse’s aide acted in the course

       and scope of his employment. Id. It then remanded the matter to the trial court

       for consideration of the remaining elements of the negligence claim—breach,

       causation, and damages. Id.




       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 13 of 27
                                                   b. Robins
[23]   In Robins v. Harris, this Court considered another possible application of the

       non-delegable duty doctrine. 740 N.E.2d 914 (Ind. Ct. App. 2000), summarily

       aff’d in relevant part by Robins v. Harris, 769 N.E.2d 586 (Ind. 2002). In that case,

       Robins was an inmate on the female cellblock of the Vigo County Jail. A jail

       officer locked down the facility and then grabbed Robins by the arm, brought

       her into a shower room, and had her perform fellatio on him. Robins filed a

       lawsuit against the sheriff, arguing that the sheriff was liable for the jail officer’s

       actions whether or not the jail officer was acting in the course and scope of his

       employment.


[24]   This Court found Robins to be strikingly similar to Stropes: “As a pre-trial

       detainee of the Vigo County Jail, Robins has almost no autonomy and is

       completely dependent on the correctional facility for care. Moreover, the

       sheriff and his employees maintain extraordinary control over the minutest

       details of their prisoners’ lives.” 740 N.E.2d at 918. Because of the inmates’

       “substantial dependency [on their jailers] and the extraordinary control jailers

       wield over their prisoners, we hold that inmates are not precluded from

       recovering damages from a sheriff for injuries suffered by intentional wrongful

       acts of jail employees.” Id.


                                         c. Interim Healthcare
[25]   In this case, a developmentally disabled child with cerebral palsy received

       services from a home health aide employed by Interim Healthcare. Interim

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 14 of 27
       Healthcare of Fort Wayne, Inc. v. Moyer, 746 N.E.2d 429 (Ind. Ct. App. 2001).

       Although the home health aide was neither expected nor authorized to

       administer medication to the child, he administered a large injection of insulin

       (which the child did not take, but the home health aide did), causing the child

       to have a seizure. The child’s parents sued Interim Healthcare, arguing that it

       was liable for the aide’s actions under a theory of non-delegable duty of care.


[26]   On appeal, Interim Healthcare sought to distinguish Stropes, arguing that “it

       ‘never contracted for, nor agreed to assume, the entire responsibility for [the

       child’s] comfort and safety.’ Rather, ‘Interim’s role in providing home health

       aides was merely to assist [the child] with personal care activities.’” Id. at 434.

       This Court was not persuaded:

               Nevertheless, given the severity of [the child’s] disabilities and
               infirmities (which undoubtedly formed the basis of the [the
               family’s] relationship with Interim), the degree of [the child’s]
               dependence on [the aide] for her care, and the degree of [the
               aide’s] control over [the child] while in the [family’s] home, we
               conclude that Interim assumed a non-delegable duty to provide
               for [the child’s] care and safety. We are unpersuaded by
               Interim’s argument that Interim was not responsible for [the
               child’s] around-the-clock care or medication and that [the child’s
               mother] remained upstairs during [the aide’s] visits. [The child]
               was unable to provide for even her most basic needs or protect
               herself from harm and was thus entirely dependent on Interim’s
               employees for her care and safety. The trial court properly
               denied Interim’s motion for summary judgment on this issue.


       Id. at 434-35.



       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 15 of 27
                                  2. Exception Not Extended
[27]   The above cases are examples of situations in which Indiana courts have

       extended the common carrier exception to employers that are not common

       carriers. Next, however, we explore two cases in which courts declined to

       extend the doctrine.


                                                   a. Hansen
[28]   In Hansen v. Board of Trustees of Hamilton Southeastern School Corporation, a

       teacher and assistant band director of an Indiana public high school engaged in

       an improper sexual relationship with a student. 551 F.3d 599 (7th Cir. 2008).

       The student’s parents brought multiple claims against the school corporation,

       including, in relevant part, a state law claim for negligence premised on a

       theory of a non-delegable duty. Id. at 615. The Seventh Circuit concluded that

       the trial court properly granted summary judgment in favor of the school

       corporation on this claim:

               Indiana courts, however, have consistently refused to impose a
               non-delegable duty upon a school for the safe-keeping of its
               students, recognizing that schools “are not intended to be
               insurers of the safety of their pupils, nor are they strictly liable for
               any injuries that may occur to them.” Miller v. Griesel, 261 Ind.
               604, 308 N.E.2d 701, 706 (1974); see also Mangold ex rel. Mangold
               v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 974 (Ind. 2001).
               Rather, schools and school personnel have a duty “to exercise
               ordinary and reasonable care for the safety of the children under
               their authority.” Miller, 308 N.E.2d at 706 . . . . The Indiana
               Supreme Court stated that an “approach that focuses on
               rearticulating that duty based upon a given set of facts is

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 16 of 27
               misplaced in our view because to do so presupposes that an issue
               which is thought to be settled must be revisited each time a party
               frames the duty issue a little differently.” Mangold, 756 N.E.2d at
               974. Consequently, we find that well-settled Indiana law does
               not impose a non-delegable duty on [the school corporation] for
               the safekeeping of its students, and the school district is not liable
               for [the teacher’s] misconduct under such a duty.


       Id. The Seventh Circuit did not include Stropes, Robins, or Interim Healthcare in

       its analysis of the issue.


                                                   b. L.N.K.
[29]   In this case, sixteen-year-old L.N.K. entered a mental health and addiction

       treatment center on an inpatient basis. L.N.K. v. St. Mary’s Med. Ctr., 785

       N.E.2d 303 (Ind. Ct. App. 2003). While L.N.K. resided at the center, a center

       employee kissed and hugged her on several occasions. After L.N.K. was

       discharged from the center, the same employee took her on a date and engaged

       in sexual intercourse with her. When L.N.K. returned to the center for

       outpatient appointments, the employee frequently kissed her and would leave

       with her after his shift was done. Three months after leaving the inpatient

       program, L.N.K. became pregnant by the employee. L.N.K. and her parents

       filed a complaint against the center, arguing, in relevant part, that the center

       was liable by virtue of a non-delegable duty.


[30]   This Court considered both Stropes and Robins, but ultimately found both cases

       to be distinguishable:



       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 17 of 27
                Here, the Center did not have the degree of control over L.N.K.
                that is required for the heightened duty of a common carrier to
                apply at the time the tort of seduction was completed. No acts of
                sexual intercourse occurred until L.N.K. was an outpatient,
                though undoubtedly enticement or persuasion may have been
                occurring while she was an inpatient. Appellees’ App. p. 41.
                Both in Stropes and Robins, the torts complained of began and
                ended while the plaintiffs were completely dependent on the
                defendant’s employees. Once L.N.K. became a Center
                outpatient, the rationale underlying Stropes and Robins—lack of
                autonomy and dependence upon the defendant—disappeared.
                Once she was an outpatient, L.N.K. was no longer under the
                Center’s control.


       Id. at 308. This Court, therefore, agreed with the trial court that the center was

       not vicariously liable for the employee’s actions as a matter of law and was

       entitled to summary judgment on that claim. Id.


                                        3. Distillation of Rules
[31]   Based on all of the above caselaw, we can sum up Indiana’s rules regarding the

       non-delegable duty exception to respondeat superior as follows. First, an entity

       assumes a non-delegable duty of care to its patrons4 when the patrons must

       surrender their control and autonomy to the entity while they are in its care.

       Stropes, 547 N.E.2d at 252-53. Second, the determination of whether those

       patrons have surrendered their control and autonomy to the entity is based




       4
        We use the general label of “patrons” for the sake of simplicity, but note that entities could assume this non-
       delegable duty to any number of groups, including (but not limited to) customers, clients, dependents, or
       consumers.

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017                     Page 18 of 27
       upon a number of factors, including the entity’s assumption of the responsibility

       for their safety, the patrons’ ability to control their environment, and the

       patrons’ ability to protect themselves from harm. Id. at 252-54. Third, the

       focus of this analysis is the nature of the relationship between the entity and the

       patron at the time the tort was allegedly committed. Id. at 254; Robins, 740

       N.E.2d at 918; Interim Healthcare, 746 N.E.2d at 434-35; L.N.K., 785 N.E.2d at

       308. Fourth, the question of whether a non-delegable duty exists is a matter of

       law. Stropes, 547 N.E.2d at 254; Robins, 740 N.E.2d at 918; L.N.K, 785 N.E.2d

       at 308.


                                                     C. Cox
[32]   Turning first to the case involving Cox, EPD, and Evansville, we summarize

       the operative facts of the incident as follows:


           • The night of March 1, 2009, Cox was at her girlfriend’s house and they
             had been drinking for much of the night. After Cox and her girlfriend
             began arguing, her girlfriend called the police.
           • Officer Montgomery responded, and Cox’s girlfriend gave him Cox’s car
             keys. Officer Montgomery was in full police uniform and driving a
             marked police vehicle.
           • Officer Montgomery told Cox to get in the front seat of his police vehicle
             and he then drove her home.
           • When they reached her apartment complex, Cox got out of the car.
             Officer Montgomery also got out of the car and followed Cox up the
             stairs to her apartment. Before exiting the vehicle, Officer Montgomery
             radioed dispatch to “clear” the run, indicating that he was ready for
             another dispatch run.
           • Cox did not invite him in, but Officer Montgomery “came in right after
             [she] unlocked the door, he walked right in behind [her].” Cox
             Appellant’s App. at 28.
       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 19 of 27
           • Cox did not try to stop him or ask him why he was doing that because
             she “thought at the time he was just being an Officer, making sure [she]
             got in alright knowing [she] was drinking that night . . . .” Id.
           • Cox “thought he was getting ready to leave, but he didn’t.” Id. Officer
             Montgomery then closed the door and proceeded to sexually assault
             Cox.

       The trial court found that as soon as Officer Montgomery radioed to dispatch to

       clear the run and walked Cox to her door, any assumed duty ceased to exist.

       Additionally, Evansville and EPD contend that imposing a non-delegable duty

       of care on law enforcement would essentially mean an imposition of strict

       liability on municipalities for all the actions of their law enforcement

       employees.5


[33]   Turning first to the latter issue, we note that this Court has already found that

       under certain circumstances, law enforcement entities may assume a non-

       delegable duty of care. Robins, 740 N.E.2d at 918; L.N.K., 308 N.E.2d at 308

       (citing and analyzing Robins). Furthermore, we disagree that imposing a non-

       delegable duty on law enforcement under certain circumstances amounts to an

       imposition of strict liability. Strict liability is a basis for a cause of action that

       creates liability regardless of fault. E.g., Cornette v. Searjeant Metal Prods., Inc.,

       147 Ind. App. 46, 52, 258 N.E.2d 652, 656 (Ind. Ct. App. 1970). Duty, on the

       other hand, is merely one element of a negligence cause of action. Therefore, to



       5
         Evansville and EPD also argue that Cox did not sufficiently raise this claim in her complaint to be entitled
       to raise it on summary judgment. Her complaint alleged a negligence claim, which includes the element of
       duty. Given our liberal notice pleading standards, we find that the complaint sufficiently preserved the issue
       of a non-delegable duty of care. Ind. Trial Rule 8(A).

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017                    Page 20 of 27
       conclude that an entity owes another person or entity a duty does not mean that

       liability necessarily attaches, as the person who was allegedly harmed must still

       prove breach, causation, and harm. E.g., Duby v. Woolf, 76 N.E.3d 190, 196

       (Ind. Ct. App. 2017). Here, the only thing we must determine is whether

       Evansville and EPD owed Cox a duty, which is not synonymous with deciding

       whether to impose strict liability.


[34]   Next, we turn to the central question—whether Evansville and EPD assumed a

       non-delegable duty of care to Cox. Evansville and EPD concede that such a

       duty existed when Officer Montgomery responded to the domestic scene, drove

       Cox home, and walked her to her door, admitting that she had surrendered

       control to him during that time. Cox Appellees’ Br. p. 13-14. They argue,

       however, that as soon as she entered her home, she regained control and

       autonomy such that the non-delegable duty no longer existed. Essentially, they

       contend that “she was within her castle and had autonomy, control, and the

       right to protect her safety. When Officer [Montgomery] unlawfully entered and

       demanded sex, she had every right to take action to exercise control and protect

       herself, including locking herself in a room or ignoring Officer [Montgomery].”

       Id. at 16. Because Cox no longer had to surrender her control and autonomy to

       Officer Montgomery, Evansville and EPD insist that the duty no longer existed

       at that point.


[35]   Evansville and EPD are correct that we must focus on the nature of the

       relationship between Cox and Officer Montgomery at the time he followed her

       into her apartment and sexually assaulted her. E.g., Stropes, 547 N.E.2d at 254

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 21 of 27
       (noting that the focus of the analysis is the nature of the relationship at the time

       the tort was committed). As noted above, to determine whether Cox had

       surrendered her control and autonomy to Officer Montgomery, there are a

       number of factors to consider, including Officer Montgomery’s assumption of

       the responsibility for Cox’s safety, Cox’s ability to control her environment, and

       Cox’s ability to protect herself from harm. Id. at 254.


[36]   We believe that the particular nature of this encounter is of utmost importance.

       Specifically, it was one continuous encounter that began when Officer

       Montgomery responded to the domestic scene and ended when he left Cox’s

       residence after sexually assaulting her. Our analysis would, perhaps, be

       different had he allowed Cox to enter her residence and close her door, with

       him then knocking to request permission to reenter. It would be easier to find,

       under those circumstances, that one encounter ended and another, of a different

       nature, then began. Here, however, he simply followed Cox into her home,

       giving her no opportunity to end their interaction before he began assaulting

       her.


[37]   The nature of the relationship between Officer Montgomery and Cox is critical

       to this analysis. And we can only conclude that the nature of their relationship

       remained the same from the beginning to the end of this encounter.

       Consequently, 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

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 22 of 27
       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.


[38]   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.

       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.


                                                   D. Beyer
[39]   Beyer’s case is far more easily decided. She was under arrest. She was also

       extremely intoxicated, to a point that she was slipping in and out of

       consciousness and the hospital was reluctant to discharge her. Officer Rogers

       was ostensibly transporting her to lockup for six hours of medical observation,

       and she was barefoot and in handcuffs in the back of his marked police vehicle

       when he pulled her out to rape her. She was quite clearly wholly dependent on


       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 23 of 27
       the officer for her safety and survival and had no ability to control her

       environment or protect herself from harm. 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.


           II. Fort Wayne Cross-Appeal: Respondeat Superior
[40]   Next, Fort Wayne cross-appeals the trial court’s order denying summary

       judgment on the respondeat superior theory of liability portion of Beyer’s

       negligence claim. For the general principles underlying respondeat superior, we

       again turn to Stropes:


               Respondeat superior imposes liability, where none would
               otherwise exist, on an employer for the wrongful acts of his
               employee which are committed within the scope of employment.
               The Court of Appeals has stated, “In order to be within the scope
               of employment the employee must be in the ‘service of the
               employer.’” Shelby v. Truck & Bus Group Div. of GMC (1989), Ind.
               App., 533 N.E.2d 1296, 1298. Acts for which the employer is
               not responsible are those done “on the employee’s own
               initiative,” City of Crawfordsville v. Michael (1985), Ind. App., 479
               N.E.2d 102, 104, “with no intention to perform it as part of or
               incident to the service for which he is employed,” Gomez v. Adams
               (1984), Ind. App., 462 N.E.2d 212, 223. However, an
               employee’s wrongful act may still fall within the scope of his
               employment if his purpose was, to an appreciable extent, to

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 24 of 27
               further his employer’s business, even if the act was
               predominantly motivated by an intention to benefit the employee
               himself. Id. Two cases decided under Indiana law have held
               employers liable for criminal acts of their employees, despite the
               fact that the crimes were committed to benefit the employee,
               because the criminal acts originated in activities so closely
               associated with the employment relationship as to fall within its
               scope.


       547 N.E.2d at 247 (two cases cited to as holding employers liable for

       employees’ criminal acts are Gomez v. Adams, 462 N.E.2d 212 (Ind. Ct. App.

       1984) and Tippecanoe Beverages v. S.A. El Aguila Brewing Co., 833 F.2d 633 (7th

       Cir. 1987)).


[41]   The Stropes Court noted with approval that neither Gomez nor Tippecanoe

       Beverages were dismissed on summary judgment, inasmuch as there were factual

       questions that needed to be answered by a jury. Id. at 248-49. When a case

       involves an employee committing “some acts unquestionably within the scope

       of his employment” and other acts that were unquestionably “unauthorized by

       [the employer] and committed for [the employee’s] own gratification,” it should

       be sent to a jury:

               A jury presented with the facts of this case might find that [the
               employee] acted to an appreciable extent to further his master’s
               business, that his actions were, “at least for a time, authorized by
               his employer, related to the service for which he was employed,
               and motivated to an extent by [his employer’s] interests,” and
               that, therefore, his wrongful acts fell within the scope of his
               employment and [the employer] should be accountable.
               Conversely, a jury might find that [the employee’s] acts were so
               “divorced in time, place and purpose” from his employment
       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 25 of 27
               duties as to preclude the imposition of liability on his employer.
               The nature of the acts were, at the very least, sufficiently
               associated with [the employee’s] authorized duties to escape
               dismissal on summary judgment.


       Id. at 250 (internal citations omitted); see also, e.g., Walgreen Co. v. Hinchy, 21

       N.E.3d 99, 107 (Ind. Ct. App. 2014) (holding that it is “well established that

       whether an employee’s actions were within the scope of employment is a

       question of fact” and “[e]ven if some of the actions were unauthorized, the

       question of whether the actions were within the scope of employment is for the

       jury”).


[42]   Here, when Officer Rogers sexually assaulted Beyer, it was in the midst of

       performing a number of his official, authorized duties, including placing Beyer

       under arrest, transporting her to and from the hospital, placing her in handcuffs,

       and assuming the responsibility for her safety because of her incapacitated

       condition. While the ultimate acts of 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.


                                                 Conclusion
[43]   In the Cox case, the judgment of the trial court regarding the existence of a non-

       delegable duty is reversed and remanded for further proceedings. In the Beyer

       Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 26 of 27
case, the judgment of the trial court regarding the existence of a non-delegable

duty is reversed, the judgment of the trial court regarding the respondeat

superior claim is affirmed, and the matter is remanded for further proceedings.


May, J., and Brown, J., concur.




Court of Appeals of Indiana | Opinion 82A01-1610-CT-2299 | September 22, 2017   Page 27 of 27
