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Seventh Circuit Requires Trial of Respondeat Superior Claim Over Sexual Assault

In Zander v. Orlich, No. 17-2792, (7th Cir. Oct. 30, 2018), the U.S. Court of Appeals for the Seventh Circuit decided how to construe and apply Indiana state tort law regarding vicarious liability.  The plaintiff in Zander was sexually assaulted by Lake County Indiana Deputy Sheriff Orlich.

When Deputy Sheriff Orlich responded to a domestic disturbance call placed by Zander's husband, he directed Zander to leave the home where the disturbance was occurring and to stay at her second home. Orlich received permission from his supervising officer to take Zander to her second home, but the home's electric panel was dismantled in addition to a host of other problems. After Orlich turned on the electricity and water heater, he tried and failed to fix the furnace. While attempting to perform repairs, Orlich told Zander that she could not return to her home for several hours. Orlich then left Zander, but 10 to 15 minutes later he returned to where Zander was staying, removed his uniform, and sexually assaulted Zander. 

The issues before the Seventh Circuit involved the state law respondeat superior claim and the negligent hiring, training, and retention claim Zander pled against Orlich's employer, Sheriff Buncich.  The legal theory of respondeat superior liability is that certain circumstances support imposing derivative liability on an employer for the tortious acts committed by employees within the scope of their employment.  If such circumstances exist, an employer may incur respondeat superior liability even if the employer was not negligent in hiring, training, or retaining the employee who committed the complained of tort.  In contrast, for a negligence claim, a plaintiff must show that the employer was negligent in hiring, supervising, or continuing its employment relationship with an employee. 

Here, Zander asserted both a respondeat superior liability claim against Sherriff Buncich for Orlich's false imprisonment and sexual assault, and a separate negligence claim alleging the Sheriff was negligent in hiring, training, and retaining Orlich as an employee.  The trial court entered summary judgment in favor of Sherriff Buncich on both tort claims Zander had brought against Sheriff Buncich.

On appeal, the Seventh Circuit determined how the Indiana Supreme Court would apply Indiana tort law to the claim that Sherriff Buncich was vicariously liable for the sexual battery and false imprisonment that Orlich committed against Zander.  This issue required the Seventh Circuit to find or anticipate how Indiana state courts would construe and apply the doctrine of respondeat superior.  The Seventh Circuit first underscored that Indiana law imposes vicarious liability on an employer if the employee inflicted harm "while acting within the scope of employment."  Under Indiana law, the determination of whether an employee's act qualifies as occurring within the scope of employment depends on factors that include whether the injurious act was incidental to the authorized conduct of the employee or furthered the business of the employer.  Moreover, Indiana law directs that whether the complained of act by the employee falls within the scope of employment generally constitutes a question of fact.

Of significance, the court explained that under Indiana law, if the complained of employee conduct contains authorized acts performed within the scope of employment, and unauthorized acts that occur outside the scope of employment, a jury must decide whether the combination qualifies, as a whole, as occurring within the employee’s scope of employment.  The Seventh Circuit stresses that Indiana courts have repeatedly indicated that an employee's commission of criminal conduct, including acts that violate official duties, or defy express orders given by an employer, or that even breach a "sacred professional duty," may still be found as occurring within the scope of employment. Within the Indiana version of respondeat superior doctrine, the core inquiry is whether the alleged tortious act of the employee arose as a natural or predictable consequence of the employment context. Id. at Slip Op., pp. 5-6, citing Cox v. Evansville Police Dept., 107 N.E.3d 453, 463-64 (Ind. 2018); Stopes v. Heritage House Children's Ctr., 547 N.E.2d 244, 249-50 (Ind. 1989); Southport Little League v. Vaughan, 734 N.E.2d 261, 268 (Ind. Ct. App. 2000).

The Seventh Circuit, however, also reads Indiana tort law as placing fence posts that limit the reach and scope of the respondeat superior doctrine.  Specifically, in Zander, the court reads Indiana law as generally imposing respondeat superior for sexual assaults committed by employees only where such assaults happen during the "physical, intimate contact required by a job."  But the facts in Zander involve more than just the physical contact that typically is part of law enforcement activities.  Orlich exercised broad authority and power in directing Zander’s movements.  As a result, such authority, held and possessed by a police officer, broadens the scope of vicarious liability of an Indiana governmental employer.

Therefore, under Indiana law, the Seventh Circuit found a need to answer two questions. First, whether Deputy Sheriff Orlich abused power and authority granted to him by Sheriff Buncich when he falsely imprisoned and sexually assaulted Zander.  Second, whether Orlich's abuse of power and authority arose in a natural and predictable fashion from the context of his employment as a law enforcement officer. 

The Court identified undisputed facts indicating that Orlich abused the power and authority that accompanied his employment as a Deputy Sheriff.  Therefore, a jury had to decide if Orlich's criminal actions, committed during his employment, flowed in a natural or predictable fashion so that he took advantage of the opportunity presented to him in his job to commit his criminal acts against Zander by abusing the authority granted to him as a Deputy Sheriff.  As a result, the Seventh Circuit reversed the summary judgment granted to Sheriff Buncich on Zander's respondeat superior claim.

The significance of this opinion appears in the additional ruling by the Court that found insufficient evidence to create an issue of fact over whether Sheriff Buncich should have known that Orlich was likely to commit a sexual assault. In the absence of any evidence even suggesting that Orlich had a work history of such misconduct, the Seventh Circuit affirmed the summary judgment entered against Zander on her negligent hiring, training and retention claim.

In sum, a respondeat superior liability claim does not require any evidence that shows the employer was negligent. More specifically, the Seventh Circuit finds that police officer employers in Indiana bear additional liability exposure through the respondeat superior doctrine.  When previously construing Illinois law, the Seventh Circuit pondered whether the scope of employment for police officers should be interpreted more broadly as held in other States.  Doe v. City of Chicago, 360 F.3d 667, 671 (7th Cir. 2004).  In 2018, that day may have already arrived in your State and is a matter for governmental employers to discuss and review with their counsel.

Please contact Ambrose McCall or your regular Hinshaw attorney with any questions.

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