                                                             FILED
                                                       Sep 13 2018, 12:07 pm

                                                             CLERK
                                                        Indiana Supreme Court
                                                           Court of Appeals
                                                             and Tax Court


                      IN THE

Indiana Supreme Court
         Supreme Court Case No. 18S-CT-447

                   Jennifer Cox,
                  Appellant (Plaintiff)
                          –v–
       Evansville Police Department
        and The City of Evansville,
                 Appellees (Defendants)


                    Babi Beyer,
           Appellant/Cross-Appellee (Plaintiff)
                          –v–
           The City of Fort Wayne,
          Appellee/Cross-Appellant (Defendant)

Argued: February 15, 2018 | Decided: September 13, 2018
      Appeal from the Vanderburgh Circuit Court,
                No. 82C01-1209-CT-479
        The Honorable David D. Kiely, Judge
         Appeal from the Allen Superior Court,
               No. 02D01-1506-CT-247
       The Honorable Nancy Eshcoff Boyer, Judge
On Petition to Transfer from the Indiana Court of Appeals,
                 No. 82A01-1610-CT-2299

             Opinion by Chief Justice Rush
       Justices Massa, Slaughter, and Goff concur.
             Justice David concurs in result.
Rush, Chief Justice

   Two on-duty police officers—one in Fort Wayne and one in
Evansville—sexually assaulted women, who then brought civil actions
against the officers’ city employers. We address two theories of employer
liability: (1) the scope-of-employment rule, traditionally called respondeat
superior, and (2) the rule’s common-carrier exception, which imposes a
more stringent standard of care on certain enterprises. We hold that the
cities may be liable under the scope-of-employment rule and that the
exception does not apply.

   Resounding in our decision today is the maxim that great power comes
with great responsibility.1 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.

   We thus affirm the denial of summary judgment to the City of Fort
Wayne on the respondeat superior issue. In doing so, we clarify when an
officer’s tortious acts will fall within the scope of employment, making the
city liable.

   We also hold that the relationships between the cities and the women in
these cases do not fall within the common-carrier exception, which we
decline to extend. We therefore affirm the trial courts’ grants of summary
judgment to the cities on the common-carrier theory.




1This maxim finds iteration across time and form, from the Bible’s “[f]or everyone to whom
much is given, from him much will be required,” Luke 12:48 (New King James), to Franklin D.
Roosevelt’s “great power involves great responsibility,” Text of Final FDR Speech Released, The
Daily Illini, Apr. 14, 1945, at 3, to Lee and Ditko’s “in this world, with great power there must
also come—great responsibility!,” Stan Lee & Steve Ditko, Amazing Fantasy #15 Introducing
Spider-Man 11 (1962).



Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                      Page 2 of 21
Facts and Procedural History
    These consolidated appeals concern similarly disturbing tales from two
cities—Evansville and Fort Wayne. In each city, an on-duty police officer
sexually assaulted a person he was dispatched to investigate.

   In Evansville, Jennifer Cox and Debbie Jackson had been drinking and
arguing at Jackson’s apartment when Cox hit Jackson. Jackson called the
Evansville Police Department, which dispatched two officers. Before
either officer arrived to the scene, one of them—Officer Martin
Montgomery—called off the other to handle the situation alone.

   When Officer Montgomery arrived at Jackson’s apartment, he told
Jackson that she could have Cox stay with her or he would take Cox
home. Jackson chose the second option.

   Officer Montgomery then drove Cox home and reported to dispatch
that he had “cleared the run,” meaning he was available for another one.
He left his patrol car running and accompanied Cox to her door. When
she opened it and went inside, Officer Montgomery followed her in,
without invitation or force. Cox thought he was “just being an [o]fficer,
making sure I got in alright knowing I was drinking that night.”

   Once inside, Officer Montgomery closed the door and asked Cox if she
wanted to have oral sex with him. She said no. Officer Montgomery then
pushed her down toward his genital area; removed his gun belt; unzipped
his pants; and coerced her into oral, anal, and vaginal sex. He then zipped
up his pants, reattached his gun belt, and left. For these acts, he was
convicted of two counts of felony criminal deviate conduct.

   Unfortunately, Officer Montgomery’s misconduct is not the only sexual
assault by an on-duty Indiana police officer that we must address today.

   In Fort Wayne, Babi Beyer became heavily intoxicated and tried to
drive home from a restaurant. Shortly before 2:00 a.m., the Fort Wayne
Police Department dispatched three officers to her vehicle, which was
stopped in a road. The officers found Beyer in the driver’s seat, intoxicated
and teetering in and out of consciousness.




Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018   Page 3 of 21
   The responding officers put Beyer into Officer Mark Rogers’s car since
he was assigned to operating-while-intoxicated patrol and enforcement.
Officer Rogers then drove Beyer to the Allen County lock-up facility for a
breath test. Before Beyer got out of the car at the facility, she began
vomiting, so Officer Rogers drove her to the hospital.

   At the hospital, medical personnel traded Beyer’s vomit-covered
clothing for scrubs and performed a blood test. The test showed an alcohol
level of .2555—too high for Beyer to leave by herself. But because Beyer
would be released into police custody, the attending physician discharged
her to be taken to lock-up, and Officer Rogers walked her to his patrol car.

   Before driving away from the hospital, Officer Rogers handcuffed
Beyer and put her in the back seat of his patrol car. When Beyer
complained that the handcuffs were painful, Officer Rogers loosened
them, fondled her breast, and told her she was “hot.”

   He then drove around for a while and parked in a dark, quiet area. He
got out of the car, grabbed Beyer by the arm, and “helped” her out of the
back seat. She was still wearing hospital scrubs—no underwear, no shoes.
Officer Rogers was in full police uniform, weapon belt included. He
walked Beyer across grass, twigs, and stones to a bench. There, he touched
her breasts, put her hands on his penis, and raped her. He then took her
back to the car, drove to a parking lot, and locked Beyer inside a crime
scene van, where she lost consciousness. Officer Rogers later drove Beyer
home and reported that he had completed the run—nearly four hours
after being sent to Beyer’s stopped car.

  The State brought criminal charges against Officer Rogers, who pleaded
guilty to three felonies: official misconduct, sexual misconduct, and rape.

   Each woman sued the respective assaulting officer’s city employer.

    Cox sued the City of Evansville and the Evansville Police Department
(collectively, “Evansville”) in federal district court. The court dismissed
the action without prejudice, see Cox v. Evansville Police Dep’t, No. 3:10-cv-
00156-SEB-WGH, 2012 WL 2317074 at *1 (S.D. Ind. June 18, 2012), and Cox
filed a complaint in state court. After she specified three theories of
liability—the general rule of respondeat superior; the common-carrier


Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 4 of 21
exception; and negligent hiring, retention, and supervision—Evansville
moved for summary judgment, which the trial court granted on the
common-carrier theory. Cox then filed this interlocutory appeal of the
court’s decision that the common-carrier exception does not apply.

   Beyer similarly sued the City of Fort Wayne, claiming vicarious liability
under the doctrine of respondeat superior and negligent hiring, training,
supervision, and retention. After Fort Wayne moved for summary
judgment, Beyer added a common-carrier theory. The trial court allowed
Fort Wayne to respond to the addition, and then granted Fort Wayne
summary judgment on the common-carrier theory and on the negligent
hiring, training, supervision, and retention claim, but not on the issue of
liability under respondeat superior. Fort Wayne and Beyer each filed an
interlocutory appeal: Fort Wayne on liability under respondeat superior, and
Beyer on the common-carrier exception.

   The Indiana Court of Appeals accepted and consolidated both cases’
appeals. Cox v. Evansville Police Dep’t, 84 N.E.3d 678, 680 (Ind. Ct. App.
2017). 2 It then reversed the trial courts’ orders granting summary
judgment to Evansville and Fort Wayne (“the cities”) on the common-
carrier issue and affirmed the denial of summary judgment to Fort Wayne
on respondeat superior liability. Id.

  The cities each petitioned to transfer. We now grant both petitions,
vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   We address two questions of law raised in motions for summary
judgment. First, does Fort Wayne escape liability as a matter of law under




2 Each woman also sued the assaulting officer. Officer Montgomery was dismissed from the
action Cox filed in federal court and is not a defendant in the state court action. Officer Rogers
is a defendant in Beyer’s state court action. He has not appeared or otherwise participated in
this appeal, but he is a party on appeal because he is a party of record in the trial court. See
Ind. Appellate Rule 17(A).



Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                      Page 5 of 21
the doctrine of respondeat superior? See Barnett v. Clark, 889 N.E.2d 281, 283
(Ind. 2008). Second, does the common-carrier exception apply? See Stropes
ex rel. Taylor v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d
244, 252–53 (Ind. 1989).

   We review summary judgment and these questions of law de novo. See
Ind. Trial Rule 56(C); Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014);
Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind. 2014).


Discussion and Decision
   In their claims against the cities, each woman asserts two theories of
vicarious liability: First, the officer’s sexual assault occurred within the
scope of his employment, making the city liable under respondeat superior’s
scope-of-employment rule. And second, even if the sexual assault
occurred outside the officer’s scope of employment, the city breached a
nondelegable, common-carrier duty, making the city liable under that
exception to the scope-of-employment rule.

   Fort Wayne contends that the sexual assault was outside its police
officer’s scope of employment as a matter of law. And both cities maintain
that the common-carrier exception does not apply.

   Vicarious liability for an on-duty police officer’s sexual assault is an
issue of first impression for this Court. Courts in other states have
confronted similar issues, revealing variations not only in identifying
police officers’ scope of employment, but also in applying exceptions to
respondeat superior’s scope-of-employment rule and in adopting sections of
the Restatement (Second) of Agency. 3 We have not adopted—and the




3See, e.g., Red Elk ex rel. Red Elk v. United States, 62 F.3d 1102, 1107–08 (8th Cir. 1995) (applying
South Dakota law and affirming finding that on-duty police officer’s rape occurred within the
scope of his employment); Buie v. District of Columbia, 273 F. Supp. 3d 65, 68 (D.D.C. 2017)
(denying motion to dismiss claim of vicarious liability for police officer’s sexual assault, based
on section 219(2)(d) of the Restatement (Second) of Agency); Peña v. Greffet, 110 F. Supp. 3d
1103, 1140 (D.N.M. 2015) (applying New Mexico law and denying motion to dismiss
plaintiff’s aided-in-agency theory of vicarious liability for corrections officer’s sexual assault
of inmate); Mary M. v. City of Los Angeles, 814 P.2d 1341, 1342 (Cal. 1991) (in bank) (holding


Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                         Page 6 of 21
parties do not urge us to adopt—the relevant sections of the Restatement
(Second) of Agency. See Stropes, 547 N.E.2d at 250.

   But the variations in how courts have addressed sexual assaults by
police officers reveal a common theme—that police officers’ duties come
with broad authority and intimidating power that may affect vicarious
liability. See Doe v. City of Chicago, 360 F.3d 667, 671 (7th Cir. 2004)
(collecting cases). More specifically, because police officers’ employer-
conferred power is so great, the range of acts for which a city may be
vicariously liable stretches far. See, e.g., id.; Red Elk ex rel. Red Elk v. United
States, 62 F.3d 1102, 1106–07 (8th Cir. 1995); Mary M. v. City of Los Angeles,
814 P.2d 1341, 1349–50 (Cal. 1991) (in bank); Applewhite v. City of Baton
Rouge, 380 So. 2d 119, 121–22 (La. Ct. App. 1979).

   Like other courts confronting police officers’ sexual assaults, we
consider the unique nature of police employment as we evaluate this issue
under Indiana common law. We first hold that Fort Wayne does not
escape liability as a matter of law under the scope-of-employment rule. 4
We then turn to the common-carrier exception and hold that it does not




that police officer’s sexual assault was not outside the scope of employment as a matter of
law); Rawling v. City of New Haven, 537 A.2d 439, 446 (Conn. 1988) (reversing summary
judgment on a genuine issue of material fact about whether police officer’s sexual assault was
“in the course of his duty”); Sherman v. State Dep’t of Pub. Safety, No. 206, 2017, --- A.3d ----,
2018 WL 3118856 at *23–28 (Del. June 26, 2018) (3-2 decision) (applying subsections 219(2)(c)
and (d) of the Restatement (Second) of Agency as nondelegable-duty and aided-in-agency
exceptions to section 228); Applewhite v. City of Baton Rouge, 380 So. 2d 119, 122–23 (La. Ct.
App. 1979) (affirming judgment against city employer because on-duty police officer “abused
the ‘apparent authority’ given such persons to act in the public interest” when the officer
sexually assaulted a woman); Hamed v. Wayne County, 803 N.W.2d 237, 244–48, 258 (Mich.
2011) (concluding that sheriff deputy’s sexual assault of inmate was unforeseeable and so
outside the scope of employment, and declining to apply an aided-by-agency exception to
Michigan’s respondeat superior rule); Doe v. Forrest, 853 A.2d 48, 55, 69 (Vt. 2004) (finding sexual
assault by sheriff’s deputy outside the scope of his employment, but adopting—and reversing
summary judgment under—section 219(2)(d) of the Restatement (Second) of Agency); Boyer-
Gladden v. Hill, 224 P.3d 21, 29 (Wyo. 2010) (affirming summary judgment to sheriff under the
Wyoming Governmental Claims Act for employee’s sexual assault of inmate, citing Wyoming
case law asserting that sexual misconduct is never within the scope of any public officer’s
duties).
4The appeal in Cox’s case concerns only the common-carrier theory, not the scope-of-
employment rule of respondeat superior.


Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                        Page 7 of 21
apply in these cases. Thus, the cities are entitled to summary judgment on
the common-carrier theory, but not on the issue of liability under
respondeat superior’s scope-of-employment rule.


I. The scope-of-employment rule of respondeat
   superior.
   For well over a hundred years, Indiana has recognized the doctrine of
respondeat superior—Latin for “let the superior make answer,” Respondeat
superior, Black’s Law Dictionary 1505 (10th ed. 2014). See, e.g., Barnett, 889
N.E.2d at 283–84; Smith v. Louisville, Evansville & St. Louis R.R., 124 Ind.
394, 400–01, 24 N.E. 753, 755 (1890); Evansville & Terre Haute R.R. v. McKee,
99 Ind. 519, 520–21 (1885). Under this doctrine, an employer is liable for
employees’ tortious acts only if those acts occurred within the scope of
employment. See Barnett, 889 N.E.2d at 283; Smith, 124 Ind. at 400, 24 N.E.
at 755.

   This scope-of-employment rule is “[t]he general rule” of vicarious
liability for both government and private employers. Barnett, 889 N.E.2d
at 283; Benton v. City of Oakland City, 721 N.E.2d 224, 228 (Ind. 1999). And
it is the basis for the first question we face: Did Officer Rogers’s sexual
assault of Babi Beyer occur outside the scope of his employment as a
matter of law?

   Whether an act falls within the scope of employment is generally a
question of fact. See Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 794 (Ind.
2015). But when the relevant facts are undisputed and would not allow a
jury to find that the tortious acts were within the scope of employment,
we may conclude as a matter of law that they were not. Stropes, 547 N.E.2d
at 248–50.

   Fort Wayne argues that Officer Rogers’s sexual assault was outside the
scope of his employment as a matter of law because it was neither
authorized by the city nor done as a service to the city.




Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 8 of 21
   Beyer counters that the city is not entitled to judgment as a matter of
law because Rogers’s acts were, for a time, authorized by the city—even
though Rogers was not authorized to sexually assault her.

   Beyond question, cities do not authorize their police officers to sexually
assault people. Indeed, sexual assault is directly opposed to police
officers’ law-enforcement and community-caretaking functions. See, e.g.,
Ind. Const. art. 5, § 16; Ind. Code § 5-2-1-17 (2018); Ind. Code § 10-11-2-21
(2018); Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993) (recognizing that police
both enforce criminal laws and enhance community safety). But, as we
discuss below, that does not necessarily place an officer’s sexual assault
outside the sphere of employee actions for which the city may be
responsible.

   Having never before evaluated whether sexual assault may fall within
the scope of an on-duty police officer’s employment, we begin by
examining the policies that shape Indiana’s scope-of-employment rule.
We then observe distinctive characteristics of police officers’ employment
that affect the scope-of-employment analysis. And finally, we evaluate
whether Officer Rogers’s acts fell outside the scope of his employment as a
matter of law.


   A. Under Indiana’s scope-of-employment rule, an
      employer is liable for employees’ tortious acts that arise
      naturally or predictably from the employment context.
   The scope-of-employment rule emanates from the concept of control.
Stropes, 547 N.E.2d at 252; see Dickson v. Waldron, 135 Ind. 507, 516–20, 34
N.E. 506, 509–10 (1893). More specifically, it springs from the employer’s
control over its employees and their employment activities: the employer
controls whom it hires, what employment duties it assigns, how it
empowers employees to carry out those duties, and how it guards against
harm arising from employment activities. See Barnett, 889 N.E.2d at 284–
85; Stropes, 547 N.E.2d at 249–50; Dickson, 135 Ind. at 516–19, 34 N.E. at
509; City of Indianapolis v. West, 81 N.E.3d 1069, 1072–73 (Ind. Ct. App.
2017).



Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 9 of 21
   Although scope-of-employment liability is rooted in this control, it
extends beyond actual or possible control, holding employers responsible
for some risks inherent in the employment context. See Dickson, 135 Ind. at
518, 34 N.E. at 509–10; West, 81 N.E.3d at 1072–73; Walgreen Co. v. Hinchy,
21 N.E.3d 99, 107–08 (Ind. Ct. App. 2014), trans. denied. Ultimately, the
scope of employment encompasses the activities that the employer
delegates to employees or authorizes employees to do, plus employees’
acts that naturally or predictably arise from those activities. See Stropes,
547 N.E.2d at 250; Dickson, 135 Ind. at 518, 34 N.E. at 509; West, 81 N.E.3d
at 1072–73; cf. Tippecanoe Beverages, Inc. v. S.A. El Aguila Brewing Co., 833
F.2d 633, 638 (7th Cir. 1987) (applying Indiana law).

   This means that the scope of employment—which determines whether
the employer is liable—may include acts that the employer expressly
forbids; that violate the employer’s rules, orders, or instructions; that the
employee commits for self-gratification or self-benefit; that breach a
sacred professional duty; or that are egregious, malicious, or criminal. See,
e.g., Warner Trucking, Inc. v. Carolina Cas. Ins., 686 N.E.2d 102, 105 (Ind.
1997) (trucker’s drunk driving); Stropes, 547 N.E.2d at 245, 249 (nurse
aide’s sexual assault of resident); Walgreen, 21 N.E.3d at 103, 109
(pharmacist’s breach of privacy for prescription records); Southport Little
League v. Vaughan, 734 N.E.2d 261, 266–67, 270 (Ind. Ct. App. 2000)
(equipment manager’s molestation of youths), trans. denied; Gomez v.
Adams, 462 N.E.2d 212, 224–25 (Ind. Ct. App. 1984) (security officer’s
conversion of arrestee’s check-cashing card).

   The scope of employment extends beyond authorized acts for two key
reasons. First, it is equitable to hold people responsible for some harms
arising from activities that benefit them. See Dickson, 135 Ind. at 518, 34
N.E. at 510. When employees carry out assigned duties, those employment
activities “further the employer’s business” to an appreciable extent,
benefiting the employer. Barnett, 889 N.E.2d at 283; see also West, 81 N.E.3d
at 1072. But delegating employment activities also carries an inherent risk
that those activities will naturally or predictably give rise to injurious
conduct. See Stropes, 547 N.E.2d at 249–50; Dickson, 135 Ind. at 517–18, 34
N.E. at 509; West, 81 N.E.3d at 1072–73. When that happens, the employer
is justly held accountable since the risk accompanies the employer’s


Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018   Page 10 of 21
benefit. See West, 81 N.E.3d at 1072 n.2; Stump v. Ind. Equip. Co., 601 N.E.2d
398, 403 (Ind. Ct. App. 1992), trans. denied.

   Second, holding employers liable for those injurious acts helps prevent
recurrence. See Dickson, 135 Ind. at 518, 34 N.E. at 509; accord West ex rel.
Norris v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997); Tippecanoe Beverages,
833 F.2d at 638. Employers can take measures—like selecting employees
carefully and instituting procedures that lessen employment dangers—to
reduce the likelihood of tortious conduct. See Dickson, 135 Ind. at 518, 34
N.E. at 509–10; accord Waymire, 114 F.3d at 649; Tippecanoe Beverages, 833
F.2d at 638. Since employers have some control over the risk of injurious
conduct flowing from employment activities, imposing liability on
employers for that conduct encourages them to take preventive action. See
Dickson, 135 Ind. at 518, 34 N.E. at 509; accord Waymire, 114 F.3d at 649;
Tippecanoe Beverages, 833 F.2d at 638; Mary M., 814 P.2d at 1343.

   To be clear, the focus in determining the scope of employment “must be
on how the employment relates to the context in which the commission of
the wrongful act arose.” Barnett, 889 N.E.2d at 285 (quoting Stropes, 547
N.E.2d at 249). When tortious acts are so closely associated with the
employment that they arise naturally or predictably from the activities an
employee was hired or authorized to do, they are within the scope of
employment, making the employer liable. West, 81 N.E.3d at 1072–73. But
tortious acts are not within the scope of employment when they flow from
a course of conduct that is independent of activities that serve the
employer. Barnett, 889 N.E.2d at 283–84.

  With this framework in mind, we now turn to police officers’ scope of
employment.


   B. 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.
  Since the scope of employment depends on whether acts naturally or
predictably arise from the employment context, our inquiry into police


Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018    Page 11 of 21
officers’ scope of employment begins with the activities and authority that
cities delegate to their officers.

   Cities assign police officers law-enforcement and community-
protection duties. Fair, 627 N.E.2d at 431. Those duties come with state
authority to detain, arrest, frisk, search, seize, and even use deadly force
when necessary. See Ind. Code § 35-41-3-3 (2018); cf. Plumhoff v. Rickard,
134 S. Ct. 2012, 2021–22 (2014); Terry v. Ohio, 392 U.S. 1, 29–30 (1968). Cities
also outfit their officers with visible signs of their employer-conferred
authority—a marked car, uniform, badge, and weapons—which officers
use to carry out their employment duties. These duties frequently
authorize and involve entering homes; detaining criminal suspects at
gunpoint; placing suspects in handcuffs and into police vehicles; and
subjecting them to forceful, nonconsensual, and offensive contact. See I.C.
§ 35-41-3-3; cf. Arizona v. Johnson, 555 U.S. 323, 328, 332 (2009); Los Angeles
County v. Rettele, 550 U.S. 609, 611, 615 (2007) (per curiam); Perez v. State,
981 N.E.2d 1242, 1247, 1252 (Ind. Ct. App. 2013), trans. denied.

   Investing officers with these considerable and intimidating powers
comes with an inherent risk of abuse. See Dickson, 135 Ind. at 517–18, 34
N.E. at 509; City of Chicago, 360 F.3d at 671; Doe v. Forrest, 853 A.2d 48, 61–
62 (Vt. 2004). When that abuse is a tortious act arising naturally or
predictably from the police officer’s employment activities, it falls within
the scope of employment for which the city is liable. Thus, if an on-duty
police officer commits a sexual assault by misusing official authority, the
sexual assault is within the scope of employment if the employment
context naturally or predictably gave rise to that abuse of official
authority.

   The reasons underlying scope-of-employment liability support this
conclusion. 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. See West, 81 N.E.3d at 1072–73. And second, holding the city
liable encourages it to guard against recurrent assaults. Particularly
because cities vest considerable power and authority in police officers, we




Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 12 of 21
want cities to exercise vigilance in hiring and supervising officers. See
Waymire, 114 F.3d at 649.

   So the scope-of-employment rule, shaped by its underlying policies,
allows employer liability for an officer’s sexual assault. We stress that the
unique authority that cities vest in police officers drives this conclusion.
As other courts have observed, “[t]he danger that an officer will commit a
sexual assault while on duty arises from the considerable authority and
control inherent in the responsibilities of an officer in enforcing the law.”
Mary M., 814 P.2d at 1350; accord City of Chicago, 360 F.3d at 671; Forrest,
853 A.2d at 61–62. Employees without this authority and power who
commit sexual assaults may be acting outside the scope of their
employment as a matter of law. See, e.g., L.N.K. ex rel. Kavanaugh v. St.
Mary’s Med. Ctr., 785 N.E.2d 303, 308 (Ind. Ct. App. 2003), trans. denied;
Konkle v. Henson, 672 N.E.2d 450, 457 (Ind. Ct. App. 1996).

  We now evaluate the relationship between Officer Rogers’s
employment context and his sexual assault of Babi Beyer.


   C. A jury could find Fort Wayne liable for Officer Rogers’s
      sexual assault.
   As discussed above, whether particular acts come within the scope of
employment is generally a question of fact for the jury. The question of
law for us to decide is whether Officer Rogers’s sexual assault was so
disconnected from his employment activities that a jury could not find
that the assault arose naturally or predictably from the employment
context. We hold that Officer Rogers’s misconduct was not so
disconnected.

   It goes without saying that sexual assault was not part of Officer
Rogers’s assigned duties. Indeed, his misconduct was the antithesis of law
enforcement and community protection. But as already explained,
criminal conduct that violates an employee’s official duties, an employer’s
express orders, or even a most sacred professional duty may nevertheless
be within the scope of employment. The critical inquiry is whether the
tortious act arose naturally or predictably from the employment context.



Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018    Page 13 of 21
  Since we recognize that police officers’ employer-conferred power and
authority carry an inherent risk of abuse, this inquiry consists of two
questions: First, did the officer abuse employer-conferred power and
authority in committing the sexual assault? And second, did that abuse of
power and authority flow naturally or predictably from the police-
employment context in which it arose?

  Here, the undisputed facts show that Officer Rogers abused his
employer-conferred power and authority in sexually assaulting Beyer.
Fort Wayne assigned Officer Rogers to operating-while-intoxicated
enforcement and patrol, and—as part of this assignment—dispatched
Officer Rogers to Beyer’s stopped vehicle. There, he and another officer
placed Beyer into Officer Rogers’s car, and Officer Rogers took over the
investigation. As part of his employment duties, Officer Rogers was alone
with Beyer, handcuffed her, and took her to the lock-up facility and to the
hospital. During those times and as part of his employment activities,
Officer Rogers exercised physical control and official authority over Beyer.
That physical control continued as he again placed her in handcuffs,
loosened them, fondled her breast, took her from the hospital to a dark
wooded area, walked her to a bench, raped her, placed her in a crime
scene van, and took her home. The whole time, he was on duty, wearing
his police uniform, and exhibiting the coercive power and authority that
accompany his official duties.

   In sum, Officer Rogers sexually assaulted Beyer by exploiting unique
institutional prerogatives of his police employment. Because of this
connection, Fort Wayne is not entitled to summary judgment on the issue
of liability under the doctrine of respondeat superior.

   Whether Officer Rogers’s employment activities naturally or
predictably gave rise to that abuse of power is a question of fact for the
jury. So on remand, the jury must decide if Officer Rogers’s employment
activities naturally or predictably led to “his taking advantage of the
opportunity” to commit sexual assault by abusing the “authority and
proximity and privacy” of his employment. Waymire, 114 F.3d at 649. Like
foreseeability in determining proximate cause in negligence cases, this is a




Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018   Page 14 of 21
particularly fact-sensitive issue. See Kramer v. Catholic Charities of the
Diocese of Fort Wayne–S. Bend, 32 N.E.3d 227, 231 (Ind. 2015).

   We note that the current pattern jury instructions on respondeat superior
do not account for the unique circumstances of police officers’
employment, which affect whether an officer’s tortious conduct flowed
naturally or predictably from the employment context. Nor do the pattern
instructions reflect Indiana’s respondeat superior law more generally. This is
because, to fall within the scope of employment, the tortious act itself need
not be intended to serve the employer—any more than a nurse aide’s
sexual assault of a severely disabled resident can be intended to serve the
care center employer, Stropes, 547 N.E.2d at 245, 247, or an equipment
manager’s molestation of children can be intended to serve the Little
League employer, Southport Little League, 734 N.E.2d at 266–67, 270. And
as already explained, the employer need not authorize the tortious act for
it to fall within the scope of employment. Rather, the tortious act must
come from a course of conduct the employee performs in the employer’s
service. See Barnett, 889 N.E.2d at 283.

   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.


II. The common-carrier exception does not apply.
   Our next task is to determine whether the common-carrier exception to
the general scope-of-employment rule applies in these cases. Put
differently, did the cities assume a common-carrier duty of care for Cox
and Beyer?

   Common-carrier liability is an exception to the general scope-of-
employment rule because it does not depend on whether employees’
injurious conduct fell within the scope of employment. Stropes, 547 N.E.2d
at 253. Instead, it depends on a special relationship between the employer
and its patron. Id. When the employer has assumed a common-carrier
duty to exercise extraordinary care for its patrons, the employer can be


Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018       Page 15 of 21
liable whether or not an employee’s tortious acts were within the scope of
employment. Id.

   The existence of a common-carrier duty is a matter of law. Id. We have
never held that cities owe a common-carrier duty to individuals who
interact with on-duty police officers sent to investigate or help them. The
women argue that we should do so now because of the control that the
police officers exerted over the women.

  The cities respond that the common-carrier exception is narrow and
does not apply to the facts of these cases. They add that extending the
exception here would expand it also to facts that we have already
determined do not give rise to a common-carrier duty.

   After examining Indiana’s common-carrier exception, we conclude that
the relationships between the cities and the women do not fit within the
exception, which we decline to expand.

  Like the doctrine of respondeat superior, the common-carrier exception
dates back over a century in Indiana law. See Dickson, 135 Ind. at 520, 34
N.E. at 510. And like the scope-of-employment rule, the common-carrier
exception’s premise is control. See Stropes, 547 N.E.2d at 252.

   With this common denominator of control, the policy reasons
underlying the rule and the exception are the same: allotting the cost of
injury to the beneficiaries of the enterprise that gave rise to the loss, and
encouraging employers to take precautions against hazards. See Dickson,
135 Ind. at 518–19, 34 N.E. at 509–510; Waymire, 114 F.3d at 649.

   But the kind of control that underpins each theory is different. Scope-
of-employment liability derives from the employer’s control over its
employees; common-carrier liability requires that a patron hand over
control and autonomy to an enterprise or employer. Stropes, 547 N.E.2d at
253.

  This means that each theory’s application is distinct, though they may
overlap—rendering an employer liable under both theories. See, e.g., id. at
254. But as an exception to the scope-of-employment rule—which is the




Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 16 of 21
“general rule” of vicarious liability, Barnett, 889 N.E.2d at 283—the
common-carrier theory is narrower.

    As its name implies, the common-carrier exception originated with
common carriers. See Indianapolis Union Ry. v. Cooper, 6 Ind. App. 202, 205,
33 N.E. 219, 219–20 (1893). These commercial enterprises—such as
shipowners, railroads, or airlines—“contract[] to transport passengers or
goods for a fee” and are “generally required by law to transport freight or
passengers without refusal if the approved fare or charge is paid.” Carrier,
Black’s Law Dictionary 256 (10th ed. 2014). The carrier assumes a
nondelegable duty to exercise heightened, extraordinary care because of
its special relationship to patron–passengers. Stropes, 547 N.E.2d at 250–51.

   The special carrier–patron relationship emerges from a so-called
“contract of passage” in which the carrier invites the public to pay a fare
in exchange for safe passage. Id. at 252. For those who accept that
invitation to become patrons or guests, the carrier assumes a special,
contractual duty of protection for the agreed-upon “period of
accommodation.” Id. As a result, the common-carrier exception does not
extend to non-patrons, who have not entered a “contract of passage.”
Compare Dickson, 135 Ind. at 517, 34 N.E. at 509 (“It is well settled that one
who has purchased his ticket, and is passing at the proper time from the
depot to the train, is a passenger, and entitled to the rights of a
passenger.”), with Carter v. Louisville, New Albany & Chi. Ry., 98 Ind. 552,
556 (1885) (applying scope-of-employment rule, and not common-carrier
exception, when a party entered a streetcar without intending to pay his
fare).

   True, we have applied the exception outside the common-carrier
context—to innkeepers and their guests, theatrical managers and their
patrons, and a children’s center and its severely disabled resident. See
Stropes, 547 N.E.2d at 254; Dickson, 135 Ind. at 520, 34 N.E. at 510. So the
exception is broader in Indiana than in many other states. See, e.g.,
Worcester Ins. v. Fells Acres Day Sch., Inc., 558 N.E.2d 958, 967–68 (Mass.
1990); Maguire v. State, 835 P.2d 755, 759 (Mont. 1992); Davis v. Devereux
Found., 37 A.3d 469, 487–88 (N.J. 2012); Niece v. Elmview Grp. Home, 929
P.2d 420, 422, 428–30 (Wash. 1997). But even in Indiana’s extended



Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 17 of 21
applications, the common-carrier nondelegable duty arises from the
parties’ “contract of passage,” which “formed the basis of [the parties’]
relationship.” Stropes, 547 N.E.2d at 253–54. The exception does not apply
to relationships lacking that fundamental feature.

   This means that relationships may involve lopsided autonomy,
responsibility, and control without invoking the common-carrier
exception. For example, the State is responsible for inmate safety, and
schools exercise control over students. But the duty of care in those
relationships is one of reasonable care to preserve safety. See Sauders v.
County of Steuben, 693 N.E.2d 16, 18 (Ind. 1998) (inmates and custodians);
Miller ex rel. Miller v. Griesel, 261 Ind. 604, 612, 308 N.E.2d 701, 706 (Ind.
1974) (students and schools); see also Hansen v. Bd. of Trs. of Hamilton Se.
Sch. Corp., 551 F.3d 599, 615 (7th Cir. 2008) (“[W]ell-settled Indiana law
does not impose a non-delegable duty on [the school] for the safekeeping
of its students . . . .”). 5 The common-carrier exception does not apply since
those relationships generally are not based on a contract with an
assurance of safety—much less a “contract of passage.” See Stropes, 547
N.E.2d at 252.

   The same is true of the relationships here. 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. Neither Cox nor Beyer entered a “contract of passage”
with Evansville or Fort Wayne: there was no invitation, no acceptance of




5In one anomalous case, an Indiana Court of Appeals panel extended the common-carrier
exception to a sheriff after his jailer summoned an inmate into a shower room, where the
inmate performed fellatio on the jailer. Robins v. Harris, 740 N.E.2d 914, 917–18 (Ind. Ct. App.
2000), clarified on reh’g, 743 N.E.2d 1142, 1143 (Ind. Ct. App. 2001). We granted transfer to
address consent as a defense, but the parties settled before we decided the issue. Robins v.
Harris, 769 N.E.2d 586, 587 (Ind. 2002). So we summarily affirmed the Court of Appeals
opinions except on the consent issue and dismissed the appeal, id., without adopting the
common-carrier-exception holding, see App. R. 58(A)(2) (summarily affirmed opinions or
portions thereof shall be considered as Court of Appeals authority). Since Robins did not find
a “contract of passage”—as required for common-carrier liability—its common-carrier
holding conflicts with this Court’s decisions in Sauders, 693 N.E.2d at 18, and Reed v. State, 479
N.E.2d 1248, 1254 (Ind. 1985). We therefore disapprove Robins’s common-carrier analysis.



Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                     Page 18 of 21
an invitation, no fare or other consideration, and no agreed-on period of
accommodation. At most, Cox and Beyer entered a social contract of the
sort contemplated by political theory. 6 But the “contract of passage” that
imposes a common-carrier duty is not so vast or philosophical. If it were,
the exception would lose its common-carrier moorings and swallow the
standard scope-of-employment rule. See Barnett, 889 N.E.2d at 283; Benton,
721 N.E.2d at 228.

   Certainly, citizens have a right to demand that the government’s sworn
protectors and law enforcers not disgrace their positions of power with
criminal and tortious acts. As we’ve explained, though, the rule of
respondeat superior holds cities liable for those injurious acts arising
naturally or predictably from the employment context. Departing from
our common-carrier precedent is thus unnecessary to address the public
policy concerns underlying vicarious liability—policies that the scope-of-
employment rule and the common-carrier exception share.

   We therefore decline to extend Indiana’s common-carrier exception
outside relationships formed by a “contract of passage.” Like other states
that have addressed vicarious liability for on-duty police officers’ sexual
assaults, we do not find the common-carrier exception necessary or
suitable to impose appropriate responsibility on the cities. So we affirm
the trial courts’ grants of summary judgment to the cities on the common-
carrier theory.


Conclusion
  Cities confer on police officers “the most awesome and dangerous
power that a democratic state possesses with respect to its residents—the
power to use lawful force to arrest and detain them.” Policemen’s




6Social-contract theory postulates a contract among people to form and shape their society.
See generally Thomas Hobbes, Leviathan (Oxford Univ. Press 1909) (1651); John Locke, Two
Treatises of Government and A Letter Concerning Toleration (Ian Shapiro ed., Yale Univ. Press
2003) (1690); Jean-Jacques Rousseau, The Social Contract and The First and Second Discourses
(Susan Dunn ed., Yale Univ. Press 2002) (1762).



Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018                   Page 19 of 21
Benevolent Ass’n of N.J., Local 318 v. Township of Washington, 850 F.2d 133,
141 (3d Cir. 1988). Because cities vest this immense power in their officers,
the doctrine of respondeat superior holds cities legally responsible for
officers’ tortious abuse of their employer-conferred power when the abuse
arises naturally or predictably from an officer’s employment activities.

   Whether Officer Rogers’s conduct naturally or predictably flowed from
his employment activities is a question of fact for the jury. But the
connection between his employment activities and his sexual assault of
Beyer was more than enough for her claim to survive summary judgment.
We therefore affirm the denial of summary judgment to Fort Wayne on
the issue of respondeat superior.

  On the common-carrier issue, the women’s relationships with the cities
do not fit within the parameters that give rise to a common-carrier duty.
We therefore affirm the grants of summary judgment to the cities on the
common-carrier theory of liability.


Massa, Slaughter, and Goff, JJ., concur.
David, J., concurs in result.



ATTORNEYS FOR APPELLANT JENNIFER COX
James H. Young
John P. Young
Young & Young
Indianapolis, Indiana

ATTORNEYS FOR APPELLEES EVANSVILLE POLICE
DEPARTMENT AND THE CITY OF EVANSVILLE
Keith W. Vonderahe
Robert L. Burkart
Ziemer, Stayman, Weitzel & Shoulders, LLP
Evansville, Indiana




Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018   Page 20 of 21
ATTORNEYS FOR APPELLANT/CROSS-APPELLEE BABI BEYER
Edward E. Beck
John S. Bloom
Shambaugh, Kast, Beck & Williams, LLP
Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE/CROSS-APPELLANT
THE CITY OF FORT WAYNE
Carolyn M. Trier
Trier Law Office
Fort Wayne, Indiana

ATTORNEYS FOR AMICI CURIAE
ACCELERATE INDIANA MUNICIPALITIES AND
THE INDIANA MUNICIPAL LAWYERS ASSOCIATION
Jo Angela Woods
Indiana Association of Cities and Towns d/b/a Accelerate Indiana Municipalities
Indianapolis, Indiana

Donald E. Morgan
Office of Corporation Counsel
Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASSOCIATION
Joseph N. Williams
James A. Piatt
Anne M. Lowe
Riley Williams & Piatt, LLC
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-CT-447 | September 13, 2018     Page 21 of 21
