Cox v. Evansville Police Department and the City of Evansville and Beyer v. City of Ft. Wayne

On two non-related occasions, two women, who were under the care of on-duty police officers, were sexually assaulted by the officers.  Both women sued the respective police departments and their municipalities under the theory of respondeat superior.  Under this theory, an employer can be held responsible only for the acts of its employees committed within the scope of the employment relationship, unless the employer had a non-delegable duty.

This non-delegable duty has historically applied to “common carriers” like airlines or railroad companies.  Under the common carrier scenario, an employer can be held liable for the actions of its employee as the carrier’s owes a non-delegable duty to protect the passenger, regardless of whether the act occurs in the scope of the employee’s employment.  The relationship must be one in which the passenger surrenders her control and autonomy to the carrier. 
In Indiana, the Supreme Court extended the common carrier exception to reach other ventures that do not qualify as “common carriers,” including theater managers, innkeepers, merchants, and more recently, the relationship between inmate and jail officer and patient and home health aide. 

On appeal, the issue in both cases at issue was whether the respective police departments and municipalities assumed a non-delegable duty of care to the two sexually assaulted women, akin to the non-delegable duty of a common carrier.  The court applied several rules to determine whether the non-delegable duty exception applied to a police officer and someone under his care.
First, the court looked to see if the women surrendered their control to the police officers while in their care, finding that both women had totally surrendered such autonomy.  In the Cox case, the woman had surrendered her control to the officer by providing him her keys and by responding to the officer’s request to enter the squad car.  Likewise, in Beyer, the woman was under arrest, thereby unquestionably surrendering her control to the police officer.

Secondly, the court looked at several factors, including the police department’s assumption of the responsibility for the women’s safety, the women’s ability to control their environment, and the women’s ability to protect themselves.  In Cox, the woman was intoxicated, so she had little ability to control the environment or protect herself from an armed and uniformed police officer.  Likewise, in Beyer, the woman was heavily intoxicated and was slipping in and out of consciousness.  She was handcuffed in the back of a marked police vehicle and was being transported to lockup.  Similarly, she had little opportunity to control the environment or protect her own safety.

Thirdly, the court analyzed the nature of the relationship between the entity and the patron at the time of the tort.  In both cases, the court held that the nature of the relationship between the women and the officers remained continuous.  Consequently, each officer retained responsibility for the woman’s safety throughout the encounter.
These cases ultimately stand for the premise that while caring for Indiana citizens, police departments and municipalities are held to the same standard of care as a common carrier with a non-delegable duty of care.


The complete Indiana Court of Appeals opinion can be found here:

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