City of Fort Wayne v. Moore

OPINION

BAKER, Judge

Appellant-Defendant, the City of Fort Wayne (the City), appeals a jury verdict in favor of appellees-plaintiffs Richard D. Moore and Eleanor Moore (collectively, the Moores), claiming that the trial court erred in denying its motion for judgment on the evidence. Specifically, the City contends, inter alia, that the evidence presented at trial failed to support the Moores’ claims that it could be liable for the negligent hiring and negligent retention of a police officer when it was established that the officer acted outside the scope of employment when he committed a battery upon Richard.

Additionally, the Moores assert on cross-appeal that the trial court erroneously apportioned the amount of the damage award between the City and the third-party tort-fea-sor, and that it improperly reduced the amount of punitive damages that the jury had awarded.

FACTS

The facts most favorable to the verdict are that the City was found liable for the negligent hiring and retention1 of police officer Stanley Stanford, one of its former police officers. On August 16, 1994, Moore, an employee of T-G Inc. (T-G), was operating one of T-G’s trucks. While driving outside the City’s corporate limits, Stanford approached Moore’s vehicle and passed it on the berm. Stanford abruptly pulled in front of the truck and came to an immediate stop which caused Moore to stop the truck. Thereafter, Stanford exited his vehicle and approached Moore. When Moore refused to get out of the truck, Stanford identified himself as “an officer.” Record at 216. An altercation ensued where Stanford struck Moore in the chest, placed him in an arm bar, kicked him and caused Moore to fall to the ground. Moore eventually returned to his truck, whereupon Stanford slammed the door shut, striking Moore’s shoulder. Stanford commented to passers-by that he was in the process of making an arrest. R. at 221. At the time of the incident, Stanford was off-duty, driving his personal vehicle and was not wearing a police uniform or any other apparel that might alert a citizen that Stanford was a police officer. During the altercation, Stanford never displayed a badge, did not mention the City of Fort Wayne, did not handcuff Moore and never informed Moore that he was under arrest.

The evidence established that Stanford first became a member of the Fort Wayne Police Department on January 4, 1993. Pri- or to hiring Stanford, the City had administered a standard “routine” MMPI test to him. R. at 309, 312. The results revealed that Stanford “could be overly aggressive at times,” and the examiner recommended that Stanford’s prior work history “should be scrutinized” before any hiring decision was made. R. at 317. The report also expressed concerns about Stanford’s aggressive tenden*606cies and his potential to be “hyper-vigilant.” R. at 315-16. This pre-employment psychological evaluation was not shared with members of the City’s Board of Safety (Safety Board), which was the entity charged "with appointing City police officers. R. at 689.

Prior to becoming a member of the Fort Wayne Police Department, Stanford had been a probationary police officer in Dallas, Texas. During his employment with that police department, Stanford was involved in a number of off-duty incidents where he displayed aggressive behavior toward others. Several memoranda generated by members of the Dallas Police Department indicated that Stanford demonstrated an “inability to control his temper.” R. at 414. As a result, Stanford was terminated from that department following the probationary period. R. at 244. Like the pre-employment psychological profile, Stanford’s discharge from the Dallas Police Department had not been communicated to the Safety Board. R. at 445, 694-95.

Stanford had also been a police officer in Landcaster, Texas. During the course of his employment there, Stanford had been found guilty of several charges by that police department’s Disciplinary Board in July of 1989. Those charges included a violation of department policy against “willfully mistreating or using unnecessary violence toward another.” R. at 430. As a result of these incidents, the Landcaster Police Department suspended Stanford for 10 days.

Approximately one month after Stanford commenced employment with the Fort Wayne Police Department’s narcotics division, complaints were made by fellow officers regarding Stanford’s loud and aggressive behavior, along with his negative attitude toward the public. As a result of these complaints, Stanford was eventually transferred from that division. Stanford was also the subject of numerous citizen complaints regarding his “out of control, unprofessional and racially charged behavior” while employed with the Fort Wayne police department. R. at 368-407, 498.

As a result of the August, 1994 incident, the Moores and T-G filed a complaint on May 31, 1995, against the City and Stanford, seeking damages for battery. Eleanor Moore also sought damages for loss of consortium. In another count of the complaint, the Moores and T-G requested damages from the City alleging the negligent hiring, retention and training of Stanford. T-G also sought damages for the loss of Richard’s services as a result of the injuries he sustained in the altercation. Stanford was charged with, and ultimately convicted of, battery as a result of the incident. Thereafter, he was discharged from the police department.

On November 7, 1997, the trial court granted summary judgment for the City with respect to the Moores’ claim of negligent training, but determined that genuine issues of material fact remained with respect to the other counts set forth in the complaint. A jury trial commenced on February 17, 1998. At the conclusion of the Moores’ case-in-chief, the City moved for judgment on the evidence. The trial court granted the motion as to T-G’s claim for the loss of Richard’s services and on the Moores’ claim that the City could be liable on an “apparent authority” basis, but denied the motion in all other respects and permitted the case to proceed.

At the conclusion of the trial on February 20, 1998, the jury returned a verdict in favor of Richard Moore against Stanford, awarding him $175,000 in compensatory damages. The jury also awarded the sum of $80,765 to Richard against the City. In addition, the jury awarded Richard $250,000 in punitive damages, and $25,000 was awarded to Eleanor. Finally, the jury awarded $8,076.70 to Eleanor against the City. R. at 197. Thereafter, on March 4, 1998, the trial court made the following entry with respect to the damage award:

The court now finding the verdicts in this cause to be the true verdicts of the jury, judgment is now ENTERED on the jury’s verdicts in this cause, as limited by I.C. § 34-4-34-5, for Plaintiff Richard D. Moore and against Defendant Stanley W. Stanford in the amount of $175,000.00 actual damages and $50,000.00 punitive damages; for Plaintiff Eleanor Moore and against Defendant Stanley W. Stanford in the amount of zero actual damages and *607zero punitive damages; for Plaintiff Richard D. Moore and against the Defendant City of Fort Wayne, Indiana in the amount of $80,765.00; and for Plaintiff Eleanor Moore and against the Defendant city of Fort Wayne, Indiana in the amount of $8,076.70....

R. at 197. The City now appeals the denial of its motion for judgment on the evidence and the Moores’ cross-appeal with respect to the award of damages.

DISCUSSION AND DECISION

I. Standard Of Review

We initially note that when this court reviews a trial court’s ruling on a motion for judgment on the evidence, we apply the same standard as the trial court, considering only the evidence and reasonable inferences most favorable to the nonmoving party. Young v. Butts, 685 N.E.2d 147, 149 (Ind.Ct.App.1997). Judgment on the evidence is appropriate only if there is no substantial evidence or reasonable inference to be drawn therefrom to support an essential element of the claim. Id. A judgment on the evidence should be entered only if the evidence points unerringly to a conclusion not reached by the jury. Pacific Employer’s Ins. Co. v. Austgen’s Elec., Inc., 661 N.E.2d 1227, 1229 (Ind.Ct.App.1996), trans. denied.

II. Scope Of Employment

While the City raises a number of alleged errors, we need only address one which is dispositive. Specifically, the City asserts that the trial court erred in denying its motion for judgment on the evidence because it was undisputed that the encounter between Stanford and Moore occurred at a time when Stanford was not acting within the course and scope of his employment as a police officer. As a result, the City maintains that it cannot be liable under the theory of respondeat superior because, to hold otherwise, would “expand the tort of negligent hiring and retention beyond its current parameters.” Appellant’s Brief at 20.

We begin our discussion with the familiar and well-established maxims involving the imposition of vicarious liability. Under the doctrine of respondeat superior, an employer is liable for the acts of its employees which were committed within the course and scope of their employment. Stropes v. Heritage House Childrens Center, 547 N.E.2d 244, 247 (Ind.1989); see also Grzan v. Charter Hosp., 702 N.E.2d 786, 792 (Ind.Ct.App.1998). An employee is acting within the scope of his employment when he is acting, at least in part, to further the interests of his employer. Konkle v. Henson, 672 N.E.2d 450, 456 (Ind.Ct.App.1996). Where an employee acts partially in self-interest but is still “partially serving his employer’s interests,” liability will attach. Id. However, simply because an act could not have occurred without access to the employer’s facilities does not bring it within the scope of employment. Id. at 457.

We also note that while our courts have determined that an employer can be vicariously liable for the criminal acts of an employee, the test is whether the employee’s actions were at least for a time authorized by his employer. Stropes, 547 N.E.2d at 250. If it is determined that none of the employee’s acts were authorized, there is no respondeat superior liability. Id. Moreover, acts for which the employer is not responsible are those done “on the employee’s own initiative, [citations omitted] with no intention to perform it as part of or incident to the service for which he is employed.” Id. at 247. If some of the employee’s actions were authorized, the question of whether the unauthorized acts were within the scope of employment is one for the jury. Konkle, 672 N.E.2d at 457. However, if none of the employee’s acts were authorized, the matter is a question of law. Id.

Here, the Moores rely upon Stropes, where our supreme court determined that an employer-nursing home could be vicariously liable for the sexual assault of a mentally retarded resident because the employee, an aide at the nursing home, began the encounter by performing an authorized act which furthered his employer’s business. Specifically, the facts in Stropes revealed that the nurse’s aide began to bathe the victim and change his bedding which were acts that he was authorized to perform. Stropes, 547 *608N.E.2d at 249. Thereafter, he proceeded to sexually molest the victim, an act not authorized by his employer. The Stropes court noted that the unauthorized acts were not drastically different from the authorized acts, inasmuch as both involved touching the patient’s unclothed body. As a result, our supreme court determined that because both authorized and unauthorized acts were at issue and were of similar character, there was a question of fact for the jury and summary judgment in favor of the nursing home-employer was not proper. Id. at 250.

Unlike Stropes, there is no evidence here that any of Stanford’s acts were those authorized by the City. In other words, none of Stanford’s actions could be said to have served or furthered a purpose of the City. The uncontroverted evidence demonstrated that Fort Wayne police officers were not authorized to make traffic stops outside the City’s corporate boundaries, out-of-uniform, or in an unmarked police car. R. at 846-47. Moreover, such unauthorized stops were a cause for disciplinary action. R. at 846-47. We also note that unlike the circumstances in Stropes, the evidence here fails to demonstrate that Stanford had access to Moore because of his position as a police officer. Thus, we cannot say that Stanford began performing any authorized act which may have “melted” or “ripened” into some unauthorized act, so as to hold the City vicariously liable.

Finally, we note that this case is more akin to the circumstances presented in Konkle, where this court determined that a church was not liable for the sexual misconduct of its minister, because the acts of molestation perpetrated by the minister were not those authorized by the church. We noted that the minister was not engaged in any teaching or in any other pastoral acts when the sexual misconduct was committed and concluded that liability could not attach even though some of the acts took place in the church building. Id. at 457. As a result, we concluded that the entry of summary judgment in favor of the Church on the issue of respon-deat superior liability was proper. Id.; see also Eagle Mach. Co. v. American Dist. Tel. Co., 127 Ind.App. 408, 140 N.E.2d 756 (1957), tram, denied (no vicarious liability of employer when security company employees stole items from a repair shop because the evidence demonstrated that they, were not authorized to touch or move store inventory when responding to an alarm).

As in Konkle, the evidence presented here does not support an inference that Stanford acted to any appreciable extent to further the City’s interests so as to bring his acts within the scope of employment. Rather, it is apparent that Stanford’s conduct was sufficiently divorced in time, place and purpose from his employment duties so as not to impose liability upon the City. As a result, the trial court erred in denying the City’s motion for judgment on the evidence.

Judgment reversed.2

GARRARD, J., concurs. ROBB, J., dissents with opinion.

. We recently re-affirmed the recognition of a cause of action for negligent hiring and retention in Grzan v. Charter Hosp., 702 N.E.2d 786, 793 (Ind.Ct.App.1998).

. In light of our disposition of the issues set forth above, we need not address the Moores' claim on cross-appeal with respect to the damage award.