text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Runaldo D. RAMSEY, Defendant-Appellant.
    No. 2-15-1071
    Appellate Court of Illinois, Second District.
    Opinion filed June 12, 2018
    James E. Chadd, Thomas A. Lilien, and Christopher McCoy, of State Appellate Defender's Office, of Elgin, for appellant.
    Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Kristin M. Schwind, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Runaldo D. Ramsey, appeals his convictions and sentences for Class X home invasion ( 720 ILCS 5/12-11(a)(2), (c) (West 2010)) and two counts of Class 3 aggravated battery (id. § 12-3.05(a)(1), (f)(1), (h)). He contends that the evidence was insufficient to prove him guilty of home invasion beyond a reasonable doubt, that he was denied his right to counsel of his choice, and that he was wrongly sentenced to an extended term for aggravated battery. We affirm the convictions but modify the sentence for aggravated battery.

¶ 2 I. BACKGROUND

¶ 3 Defendant was indicted in July 2012 and released on bond. Early on, his attorney sought to withdraw, stating that he had not spoken to defendant for a while and had tried to call him. Defendant then appeared in court late and told the court that he had hired new counsel. He was given a two-week continuance. In June 2013, his counsel withdrew, and the public defender was appointed. In July 2013, defendant failed to appear at a status hearing, and it was noted that he had previously been late for hearings. After further continuances, the case was set for a jury trial on July 29, 2014. On July 24, 2014, attorney Ted Gailan sought to file an appearance, but the court denied the request because defendant failed to appear and trial was already set. On July 29, 2014, trial was continued because the court had a scheduling conflict, and defendant was allowed to seek to retain substitute counsel. However, defendant did not do so. After several more continuances, trial was set for August 24, 2015. During that time, defendant failed to appear at least once.

¶ 4 On August 24, 2015, defendant waived a jury trial, and the case was held over to the next day for a bench trial. The next day, defendant's public defender told the court that defendant wanted a private attorney, "Mr. Kayne," to represent him. The public defender stated that Kayne informed him that he would be unable to go to trial that day, that it was unlikely that the court would grant a continuance, but that, if the court did so, Kayne could go to trial in two weeks. The State objected, arguing that the request was a dilatory tactic, and the public defender replied that Kayne said without reservation that he was willing and able to come into the case. The court denied the request, stating that its ruling would have been different if made a week earlier but that it was now "59 minutes past the eleventh hour," there were witnesses in the hallway, and the court would not inconvenience the witnesses and the State.

¶ 5 Trial began, and after a recess defendant appeared 54 minutes late and was admonished that, if he were late again, a warrant would issue. The court then revisited the issue of defendant's request to substitute counsel, stating that it wanted to clarify the matter for the record. The court had since reviewed a case on the issue and provided it to counsel. Defense counsel and the State both made brief statements. The State noted that defendant had previously retained multiple attorneys, and it argued that defendant was trying to delay trial. The court observed that defendant had been represented by several different attorneys and that the case had been continued due to a scheduling conflict that gave defendant additional time to retain private counsel, but none was retained. The court also found that the public defender had been on the case for some time and that Kayne was not ready to make an unconditional appearance. The court indicated that it was perhaps having different thoughts on whether defendant subjectively was trying to delay trial but that, even if defendant did not subjectively intend to be dilatory, granting a continuance on the day of trial would unduly interfere with the administration of justice.

¶ 6 At trial, Steven Stanley testified that, on June 8, 2012, he lived in a building with two apartments. Stanley lived on the first floor, and his landlord lived on the second floor. Stanley was required to enter his apartment through the back door of the building, which opened into a laundry room. From there, a door opened into Stanley's apartment. Another door led to a set of stairs leading to his landlord's apartment. Other than passing through to his apartment, Stanley was not allowed to use the laundry room. He was not allowed to wash his clothes there and would not leave boots or an umbrella there. When asked if his living area started when he set foot inside of the exterior door, Stanley said "[n]o." When asked if he was allowed to keep other people out of the laundry room, he replied, "[i]f the outside door is locked, yes," but "[i]f the door is open, they are going to walk in." He then agreed that, whether the door was locked or not, he had a right to tell people that they could not come in. He later stated that he used the laundry room only as a hallway to enter his apartment. Multiple times during trial, Stanley referred to the interior door that opened to his apartment from the laundry room as his back door. However, he also referred to the exterior door as the back door on several occasions.

¶ 7 On June 28, 2012, between 11:30 p.m. and midnight, defendant and his girlfriend, Tuwanda, came to Stanley's apartment and banged on the window. Stanley's ex-girlfriend, Colleen, was Tuwanda's friend, and Stanley had previously met defendant. Stanley let defendant and Tuwanda inside. Tuwanda then said that she would wait in the car and left. Defendant asked Stanley if he had defendant's money. Stanley said that he did not owe defendant money. Defendant repeated his request and said that Colleen owed him $50 and that Stanley was her "money man." Defendant continued to repeat that he wanted his money, and Stanley reached into his wallet and gave defendant $20, telling him that that was all he had. Defendant persisted in asking for money, appeared agitated, and spit in Stanley's face. Stanley then gently pushed defendant, and defendant pushed him back, causing him to fly across the kitchen and hit his head on the kitchen cabinet. When Stanley got up, defendant hit him on the ear with a beer bottle.

¶ 8 Stanley said that he was calling the police and ran to the bedroom for his phone. As he was dialing, defendant tackled him into a television and began strangling him. Stanley hit defendant in the ribs, and defendant let him go and left the bedroom. Stanley picked up his phone, which in the scuffle had gotten about 20 numbers entered on it. He began erasing the numbers so that he could dial 911. He also entered his kitchen to lock the interior door. As he approached the door, defendant entered with a garden weeder in his hand. Defendant tried to stab Stanley in the face and chest with the weeder, and its handle split down the middle. Defendant then left the apartment again and returned with a second, "much sharper" garden weeder with a "V-shaped blade." Using the weeder, defendant stabbed Stanley multiple times and told Stanley that he was a dead man if he called the police. Defendant then left. The weeders had been stored outside the building, next to the exterior door. Exhibit No. 27 shows a weeder leaning against the building, within an arm's reach of the door. A person likely could retrieve it without fully exiting the building.

¶ 9 Stanley called 911 and went to the hospital, where he was treated for multiple injuries. Stanley identified defendant from a photo lineup. The investigating officer testified at trial about the crime scene and took the picture in exhibit No. 27. During closing arguments, the State suggested that defendant must have left the weeder in that position when he went outside and got the second weeder.

¶ 10 The defense moved for a directed finding, arguing that the State failed to prove the offense of home invasion because the laundry room was part of Stanley's dwelling and the State failed to prove that defendant exited and reentered after his initial authorized entry. The court denied the motion, noting circumstantial evidence that defendant left the building entirely and noting that the laundry room was a common area. The defense rested without providing evidence.

¶ 11 The court found defendant guilty, finding that, based on exhibit No. 27, it was persuaded beyond a reasonable doubt that defendant twice left the building in its entirety through the outside door, recovered a weapon, and made an unauthorized entry back into the building. Thus, the court stated that it found an unauthorized entry "regardless of the analysis about the common area[,] which I stand by."

¶ 12 The two aggravated-battery convictions merged into one for sentencing. The court sentenced defendant to 17 years' incarceration for home invasion and a concurrent 7-year extended term for aggravated battery. Defendant's motion to reduce the sentence was denied, and he appeals.

¶ 13 II. ANALYSIS

¶ 14 Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt of home invasion because it failed to prove an unauthorized entry into Stanley's dwelling. He argues that the laundry room was part of the dwelling and that the State failed to prove beyond a reasonable doubt that he completely left the building to get the weeders and then reentered without authorization. The State argues that the laundry room was not part of Stanley's dwelling and that, in any event, there was sufficient evidence that defendant entirely left the building.

¶ 15 A reviewing court will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins , 106 Ill. 2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). On a challenge to the sufficiency of the evidence, " 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) Id. (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). This standard applies regardless of whether the evidence is direct or circumstantial, and circumstantial evidence meeting this standard is sufficient to sustain a criminal conviction. People v. Jackson , 232 Ill. 2d 246, 281, 328 Ill.Dec. 1, 903 N.E.2d 388 (2009). The trier of fact is responsible for resolving conflicts in the testimony, weighing the evidence, and determining what inferences to draw, and a reviewing court ordinarily will not substitute its judgment on these matters for that of the trier of fact. People v. Cooper , 194 Ill. 2d 419, 431, 252 Ill.Dec. 458, 743 N.E.2d 32 (2000).

¶ 16 A defendant who is not a peace officer commits home invasion when, without authority, he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons are present and intentionally causes any injury to any person within the dwelling. 720 ILCS 5/12-11(a)(2) (West 2010). A "dwelling" is defined as "a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence." Id. § 2-6(a).

¶ 17 There is little case law addressing when a common area such as the laundry room in this case is part of a dwelling for purposes of proving home invasion. In People v. Pavic , 104 Ill. App. 3d 436, 447, 60 Ill.Dec. 175, 432 N.E.2d 1074 (1982), the First District stated in dicta that the basement of an apartment building was part of the victims' dwelling. There, the defendant followed the victims home and tampered with a circuit breaker in the basement of their building. When the victims left to turn the electricity back on, the defendant entered their apartment and raped them upon their return. In affirming the defendant's conviction of home invasion, the court noted that, although apartment dwellers live in their apartments, they necessarily use other portions of the building such as to get to and from their apartments or to do laundry. Id. The court ultimately stated, though, that it need not conclude that the basement was part of the dwelling, because the victims' constructive presence in the apartment was sufficient. Id. However, our supreme court overruled Pavic in People v. Pettit , 101 Ill. 2d 309, 78 Ill.Dec. 157, 461 N.E.2d 991 (1984).

¶ 18 In People v. Pettit , 114 Ill. App. 3d 876, 70 Ill.Dec. 697, 449 N.E.2d 1044 (1983), the defendants invaded a first-floor apartment but later moved the victims to an empty second-floor apartment. The defendants were charged with home invasion only in connection with their entry into the second-floor apartment. We reversed the defendants' convictions because the victims were not present in the second-floor apartment when the defendants invaded it, noting that the purpose of the home-invasion statute is solely to protect the personal safety of people in their homes. Id. at 881, 70 Ill.Dec. 697, 449 N.E.2d 1044. Our supreme court affirmed. Pettit , 101 Ill. 2d at 315, 78 Ill.Dec. 157, 461 N.E.2d 991. In doing so, the court discussed Pavic and referred to the apartment in Pavic as the victims' " 'dwelling.' " Id. at 313, 78 Ill.Dec. 157, 461 N.E.2d 991. The court noted that the Pavic court ruled that the basement of the apartment building was also part of the victims' dwelling. The court then stated, "We do not agree with this interpretation, and we hold that the statute requires the physical presence of one or more persons in the dwelling to constitute a home invasion. To the extent this opinion is inconsistent with the interpretation in Pavic we now overrule it." Id.

¶ 19 Whether a common area is part of a dwelling has also been discussed in various burglary cases. See, e.g. , People v. Silva , 256 Ill. App. 3d 414, 421, 195 Ill.Dec. 484, 628 N.E.2d 948 (1993) (unoccupied basement and apartment used for storage in a two-flat constituted a dwelling); People v. McIntyre , 218 Ill. App. 3d 479, 481-82, 161 Ill.Dec. 187, 578 N.E.2d 314 (1991) (attached, enclosed porch part of the dwelling). Also in regard to burglary, in People v. Thomas , 137 Ill. 2d 500, 519-20, 148 Ill.Dec. 751, 561 N.E.2d 57 (1990), our supreme court held that a garage attached to a multiunit dwelling was not part of the victim's dwelling. We later interpreted Thomas to mean that normally an attached garage is part of the dwelling because it is part of the structure in which the owner lives. Under Thomas , however, an exception applies when the garage is attached to a multiunit dwelling, because, without that distinction, the entry into the garage would constitute a burglary to every unit in the building. People v. Cunningham , 265 Ill. App. 3d 3, 9, 202 Ill.Dec. 511, 637 N.E.2d 1247 (1994).

¶ 20 Although defendant relies on a number of burglary cases, the cases he relies on focus on single-unit dwellings or on areas actively being used by the victims. This case, however, involves a common area of a multiunit dwelling, which defendant used only to pass through. We also note that the crime of burglary uses a definition of "dwelling" that includes "a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside." 720 ILCS 5/2-6(b) (West 2010). Here, our focus is on whether the victim used or intended to use the location as a human habitation, home, or residence. Id. § 2-6(a). We conclude that, in this case, there was sufficient evidence that the laundry room was not used by Stanley in such a manner.

¶ 21 Other than passing through to enter his apartment, Stanley was not allowed to use the laundry room. He was not allowed to wash his clothes there and would not leave boots or an umbrella there. When asked if his living area started when he set foot inside the exterior door, Stanley said "[n]o." Although he admitted that he had the right to tell people not to enter, he also stated that he used the laundry room only as a hallway to enter his apartment. He also referred to the interior door that opened to his apartment from the laundry room as his back door, albeit inconsistently. Despite the inconsistencies, we find that there was sufficient evidence for the trial court to infer that Stanley did not use the location as part of his habitation, home, or residence. Instead, it was a common area that he merely passed to reach his apartment, which was his actual dwelling. See Pettit , 101 Ill. 2d at 313, 78 Ill.Dec. 157, 461 N.E.2d 991. As a result, when defendant left Stanley's apartment, he exited the dwelling and then returned unauthorized, making him guilty of home invasion. Because we determine that the laundry room was not part of the dwelling, we need not decide whether there was sufficient evidence that defendant left the building entirely.

¶ 22 Defendant next argues that he was denied his right to counsel of his choice when the trial court denied his motion to continue in order to substitute counsel.

¶ 23 A defendant has a constitutional right to the assistance of counsel ( U.S. Const., amends. VI, XIV ; Ill. Const. 1970, art. I, § 8 ), which includes the right to counsel of his choice. People v. Friedman , 79 Ill. 2d 341, 349, 38 Ill.Dec. 141, 403 N.E.2d 229 (1980). A defendant may not, however, wield this right "as a weapon" to "thwart the administration of justice or to otherwise embarrass the effective prosecution of crime." Id. In ruling on a defendant's request for a continuance for substitution of counsel, the trial court must balance "the fundamental right of the defendant to counsel of his choice [citations], against the interests of the State, the courts and the witnesses in the efficient disposition of cases without unreasonable delay [citations]." People v. Little , 207 Ill. App. 3d 720, 723-24, 152 Ill.Dec. 678, 566 N.E.2d 365 (1990). Whether to allow a continuance for a defendant to retain new counsel is a matter left to the trial court's discretion, and we will not overturn its decision absent an abuse of that discretion.

People v. Segoviano , 189 Ill. 2d 228, 245, 244 Ill.Dec. 388, 725 N.E.2d 1275 (2000) ; People v. Curry , 2013 IL App (4th) 120724, ¶ 49, 371 Ill.Dec. 891, 990 N.E.2d 1269.

¶ 24 " 'In balancing the judicial interest of trying the case with due diligence and the defendant's constitutional right to counsel of choice, the court must inquire into the actual request to determine whether it is being used merely as a delaying tactic.' " People v. Tucker , 382 Ill. App. 3d 916, 920, 321 Ill.Dec. 468, 889 N.E.2d 733 (2008) (quoting People v. Burrell , 228 Ill. App. 3d 133, 142, 170 Ill.Dec. 17, 592 N.E.2d 453 (1992) ). "Factors to be considered include: whether defendant articulates an acceptable reason for desiring new counsel; whether the defendant has continuously been in custody; whether he has informed the trial court of his efforts to obtain counsel; whether he has cooperated with current counsel; and the length of time defendant has been represented by current counsel." Id. "[W]hen a defendant cannot 'articulate an acceptable reason for desiring new counsel and is already being represented by an experienced, court-appointed criminal lawyer, it is not an abuse of discretion to deny defendant's trial-day request for a continuance.' " People v. Staple , 402 Ill. App. 3d 1098, 1103, 342 Ill.Dec. 603, 932 N.E.2d 1064 (2010) (quoting People v. Jackson , 216 Ill. App. 3d 1, 7, 158 Ill.Dec. 606, 574 N.E.2d 719 (1991) ).

¶ 25 Most important, a court must balance the defendant's right to counsel of his choice against the need for the efficient and effective administration of justice. Curry , 2013 IL App (4th) 120724, ¶ 48, 371 Ill.Dec. 891, 990 N.E.2d 1269. Thus, our supreme court has made clear that "a trial court will not be found to have abused its discretion in denying a motion for substitution of counsel in the absence of ready and willing substitute counsel." Segoviano , 189 Ill. 2d at 245, 244 Ill.Dec. 388, 725 N.E.2d 1275. Thus, if new counsel is specifically identified and stands ready, willing, and able to enter an unconditional appearance, the motion should be allowed. However, if any of those requirements is lacking, a denial of the motion is not an abuse of discretion. See People v. Koss , 52 Ill. App. 3d 605, 607-08, 10 Ill.Dec. 431, 367 N.E.2d 1040 (1977).

¶ 26 Curry is instructive. There, the defendant was arrested on January 28, 2012, and charged with driving under the influence. Less than a month later, attorney Mark Harmon entered an appearance on the defendant's behalf. On May 23, 2012, the case was set for trial on June 11. On June 1, 2012, Harmon learned that the defendant had hired attorney Richard Frazier to represent him, and on the day of trial he filed a motion to continue the case in order to determine the nature of Frazier's relationship with the defendant. At the hearing on the motion, Harmon advised the court that the defendant wanted Frazier to represent him, that the defendant had paid Frazier a retainer, and that Frazier had conditioned his representation on Harmon's obtaining a continuance. The State objected, noting that Frazier would not enter his appearance unless the case were continued. The court denied the motion as untimely, stating, " 'we don't do motions to continue on the morning of the jury trial.' " Curry , 2013 IL App (4th) 120724, ¶ 15, 371 Ill.Dec. 891, 990 N.E.2d 1269. Frazier asked if the defendant could make a statement, and the court responded that it was " 'not going to accept any pro se statement by a defendant who is here represented by counsel.' " Id. ¶ 16.

¶ 27 The defendant appealed, arguing that he was denied his right to counsel of his choice, and the Fourth District affirmed. The court stated that, when a trial court conducts an inquiry into the circumstances of a defendant's motion to substitute counsel and those circumstances demonstrate that substitute counsel does not stand ready, willing, and able to make an unconditional appearance, the court does not abuse its discretion by denying the defendant's motion. Id. ¶ 51. Distinguishing cases in which no inquiry at all was made into the request to substitute counsel, the court noted that the trial court did inquire into the circumstances and discovered that Frazier would not enter an appearance unless there were a continuance. Id. ¶¶ 50-52. At that point, the facts revealed that counsel was not ready, willing, and able to make an unconditional appearance, and the denial of the motion was not an abuse of discretion. Id. ¶ 52 ; see also Segoviano , 189 Ill. 2d at 245, 244 Ill.Dec. 388, 725 N.E.2d 1275 (denial of counsel's motion to withdraw and continue for substitute counsel was not an abuse of discretion when substitute counsel had not been identified and secured).

¶ 28 Here, as in Curry , substitute counsel was not ready, willing, and able to enter an unconditional appearance. While Kayne said that he was willing and able to take the case, he did not appear, and he said that he could do so in two weeks. Since he was not present, he could enter an appearance only if the continuance were granted. Thus, as in Curry , his representation of defendant was conditioned on a continuance.

¶ 29 Defendant, citing a number of cases, argues that, despite the request for a continuance, the trial court abused its discretion by failing to make an inquiry into the reasons that he sought new counsel. In particular, he relies on People v. Adams , 2016 IL App (1st) 141135, 401 Ill.Dec. 596, 50 N.E.3d 738. There, on the day of trial, the defendant, who was represented by the public defender, requested a continuance to hire private counsel. The trial court, without inquiring into the reasons that the defendant wanted to retain private counsel, denied the request because it was made on the day of trial and the witnesses were already there. The First District reversed, holding that, even when new counsel was not identified, reversal was warranted when the trial court failed to inquire into whether the defendant was using the request as a delay tactic. Id. ¶ 15. Noting that the trial court focused only on the facts that it was the day of trial and that witnesses were present, and conceding that both facts supported the court's decision, the appellate court held that the trial court's "utter failure" to make any kind of inquiry into the basis for the request outweighed those considerations. Id. ¶ 16. While the appellate court found that the failure to inquire by itself justified reversal, it also noted that, when the defendant made his request, the case had been pending for only 70 days, there were no previous continuances, and he had been in continuous custody.

¶ 30 We apply Curry . We observe that, while Adams cited Segoviano , it failed to adhere to its rule "that a trial court will not be found to abuse its discretion in denying a motion for substitution of counsel in the absence of ready and willing substitute counsel." Segoviano , 189 Ill. 2d at 245, 244 Ill.Dec. 388, 725 N.E.2d 1275. Further, unlike in Adams and other cases cited by defendant, the trial court here carefully considered defendant's intent. The trial court discussed the matter twice, the second time after it reviewed case law on the issue. The court specifically noted the number of previous continuances and substitutions of counsel and that defendant once failed to obtain new counsel after he was given the opportunity to do so. Defendant, through his failures to appear and tardiness, also suggested an interest in delaying the proceedings, and after his tardiness on the day of trial, the trial court suggested that this was defendant's subjective intent. To the extent that defendant would require the court to directly ask him about his intent, the case law requires an inquiry, but it does not require direct questioning of a defendant who is represented by counsel. In light of all the circumstances, the trial court did not abuse its discretion in denying the request for substitution of counsel.

¶ 31 Finally, defendant argues that the seven-year extended-term sentence for aggravated battery should be reduced to the maximum nonextended term of five years. The State agrees. When a defendant is convicted of multiple offenses that are part of a continuing course of conduct, he may be sentenced to an extended term only for those offenses that are within the most serious class. 730 ILCS 5/5-8-2(a) (West 2010); People v. Smith , 345 Ill. App. 3d 179, 190, 280 Ill.Dec. 625, 802 N.E.2d 876 (2004).

¶ 32 Here, the court sentenced defendant to an extended term for Class 3 aggravated battery ( 720 ILCS 5/12-3.05(h) (West 2010)), but he was also sentenced for Class X home invasion (id. § 12-11(c) ), when the charges were based on the same course of conduct. Although defendant did not object to the extended-term sentence or include it in a posttrial motion, the erroneous imposition of an extended-term sentence is routinely reviewed as second-prong plain error. See, e.g. , People v. Wilkins , 343 Ill. App. 3d 147, 149, 277 Ill.Dec. 884, 797 N.E.2d 231 (2003).

¶ 33 Here, the extended-term sentence was imposed on the offense that was not within the most serious class. Thus it was error. Accordingly, pursuant to our authority under Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967), we reduce defendant's sentence for aggravated battery to the maximum nonextended term of five years.

¶ 34 III. CONCLUSION

¶ 35 There was sufficient evidence that the laundry room was not part of the dwelling. Further, the trial court did not erroneously deprive defendant of his right to counsel of his choice. However, the extended-term sentence was imposed on the offense that was not within the most serious class; thus we reduce the sentence for aggravated battery to the maximum nonextended term of five years. Accordingly, the judgment of the circuit court of Du Page County is affirmed as modified. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 36 Affirmed as modified.

Justices Jorgensen and Burke concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    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)
    Supreme Court Case No. 18S-CT-447
    Supreme Court of Indiana.
    Argued: February 15, 2018 Filed September 13, 2018
   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

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

On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-1610-CT-2299

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. 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.

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.

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 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). 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 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. 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. 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 , 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341, 1349-50 (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. 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.

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.

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).

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 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. , 285 Cal.Rptr. 99, 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. See Ind. Code § 35-41-3-3 (2018) ; cf. Plumhoff v. Rickard , 572 U.S. 765, 134 S.Ct. 2012, 2021-22, 188 L.Ed.2d 1056 (2014) ; Terry v. Ohio , 392 U.S. 1, 29-30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ; Los Angeles County v. Rettele , 550 U.S. 609, 611, 615, 127 S.Ct. 1989, 167 L.Ed.2d 974 (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 , 176 Vt. 476, 853 A.2d 48, 61-62 (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 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. , 285 Cal.Rptr. 99, 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.

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 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 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 "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. , 408 Mass. 393, 558 N.E.2d 958, 967-68 (1990) ; Maguire v. State , 254 Mont. 178, 835 P.2d 755, 759 (1992) ; Davis v. Devereux Found. , 209 N.J. 269, 37 A.3d 469, 487-88 (2012) ; Niece v. Elmview Grp. Home , 131 Wash.2d 39, 929 P.2d 420, 422, 428-30 (1997). But even in Indiana's extended 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 ....").

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 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. 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 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.

      This 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).

      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).

      See, 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 , 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341, 1342 (1991) (in bank) (holding that police officer's sexual assault was not outside the scope of employment as a matter of law); Rawling v. City of New Haven , 206 Conn. 100, 537 A.2d 439, 446 (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, 190 A.3d 148, 177-84, 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 , 490 Mich. 1, 803 N.W.2d 237, 244-48, 258 (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 , 176 Vt. 476, 853 A.2d 48, 55, 69 (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).

      The appeal in Cox's case concerns only the common-carrier theory, not the scope-of-employment rule of respondeat superior .

      In 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.

      Social-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).