C.J. Rush,
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. [Footnote omitted.] 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.
….
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. [Footnote omitted.] We have not adopted—and the 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…
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. [Footnote omitted.] We then turn to the common-carrier exception and hold that it does not 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.
….
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.
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.
….
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…
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 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 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…
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.
….
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.”…
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.
….
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?
…..
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.
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 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.
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 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.