Baker, J.
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.
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 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.
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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.
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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 patrons when the patrons must surrender their control and autonomy to the entity while they are in its care. [Footnote omitted.] 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 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.
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Turning first to the latter issue, we note that this Court has already found that under certain circumstances, law enforcement entities may assume a nondelegable 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 nondelegable 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 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.
Next, we turn to the central question—whether Evansville and EPD assumed a non-delegable duty of care to Cox….
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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.
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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.
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 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
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Conclusion
In the Cox case, the judgment of the trial court regarding the existence of a nondelegable duty is reversed and remanded for further proceedings. In the Beyer 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.