City of Fort Wayne v. Moore

ROBB, Judge,

dissenting

In determining that the trial court erred in denying the City’s motion for judgment on the evidence, the majority concludes that Stanford was not acting within the scope of his employment with the City when he assaulted Moore. I believe that the majority has applied the “scope of employment” test too narrowly to the facts of this case, and therefore, I respectfully dissent.

An employer is vicariously liable for the wrongful acts of its employees committed within the scope of their employment. Warner Trucking, Inc. v. Carolina Casualty Ins. Co., 686 N.E.2d 102, 105 (Ind.1997). As explained by our supreme court:

Acts for which the employer is not responsible are those done ‘on the employee’s own initiative with no intention to perform it as part of or incident to the service for which he is employed.’ However, an employee’s wrongful act may still fall within the scope of his employment if his purpose *609was, to an appreciable extent, to further his employer’s business, even if the act was predominantly motivated by an intention to benefit the employee himself.

Stropes v. Heritage House Childrens Ctr., 547 N.E.2d 244, 247 (Ind.1989) (citations omitted).

In Stropes, our supreme court held that entry of summary judgment on a claim of respondeat superior in favor of a children’s center and against a patient who had been sexually assaulted by an employee of the center was in error, as the “nature of the acts were, at the very least, sufficiently associated with [the employee’s] authorized duties to escape dismissal on summary judgment.” Id. at 250. The court stated:

A jury presented with the facts of this case might find that [the employee] acted to an appreciable extent to further his master’s business, that his actions were, “at least for a time, authorized by his employer, related to the service for which he was employed, and motivated to an extent by [his employer’s] interests,” and that, therefore, his wrongful acts fell within the scope of his employment and [the employer] should be accountable. Conversely, a jury might find that [the employee’s] acts were so “divorced in time, place and purpose” from his employment duties as to preclude the imposition of liability on his employer.

Id.

The majority correctly notes that if any of the employee’s actions were authorized by his employer, the question of whether the unauthorized acts were within the scope of employment is one for the jury, but if none of the employee’s acts were authorized, then the matter is a question of law. Op. at 607, citing Konkle v. Henson, 672 N.E.2d 450, 457 (Ind.Ct.App.1996). However, I believe the majority incorrectly proceeds to determine as a matter of law that none of Stanford’s actions were authorized by the City.

In an attempt to distinguish Stropes, the majority states that “there is no evidence that any of Stanford’s acts were those authorized by the City.” Op. at 608 (emphasis added). The majority relies on evidence 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 car, and that such stops were a cause for disciplinary action. I agree that the evidence showed that the City’s policy was that its officers should not make such stops. However, the fact that Stanford’s stop of Moore may not have been within the City’s rules, or even within the dictates of the statute governing traffic stops by police officers who are out of uniform or driving unmarked cars, see Ind.Code § 9-30-2-2, does not necessarily take his conduct outside the scope of his employment. In Warner Trucking, a truck driver was apparently en route from his employer’s premises to a gas station the night before he was scheduled to make a delivery when the semi-trailer tractor he was driving collided with another vehicle. The employee had consumed several alcoholic beverages that evening, despite company rules which prohibited an employee from driving a company vehicle if he had consumed alcohol that day. The motorists with whom the trucker collided sued the company on a theory of respondeat superior. The company moved for summary judgment, contending that its no-drinking policy established as a matter of law that the trucker was not authorized to drive at the time of the accident and was therefore not acting in the scope of his employment. The trial court denied the motion, and our supreme court affirmed, stating that “[e]ven though an employee violates the employer’s rules, orders, or instructions, or engages in expressly forbidden actions, an employer may be held accountable for the wrongful act if the employee was acting within the scope of employment.” 686 N.E.2d at 105.

The fact of the matter is, Stanford felt he had the duty and the authority to stop Moore’s vehicle and investigate what he alleged to be an incident of reckless driving because the City had clothed him with the authority of a police officer. Whether the stop was a valid stop for purposes of our criminal law or for purposes of department discipline is not relevant to the inquiry before us. Making a traffic stop is the sort of conduct engaged in every day by police officers. It is the sort of conduct reserved by *610the citizenry almost exclusively for police officers. An ordinary citizen on the roadway who observes a reckless driver may be frustrated, angry or fearful, and may even alert the authorities, but would not be likely to feel free to stop the vehicle, despite provisions in our law for citizen’s arrests. See Ind.Code § 35-33-1-4.

Moreover, Moore testified that he did not feel he could resist the attack or defend himself due to Stanford’s identification of himself as an officer for fear of criminal repercussions. R. 758-60. In this regard, we note that in a case concerning a store customer who resisted a store security guard who accused her of shoplifting, the fact that the guard also happened to be an off-duty, out-of-uniform police officer resulted in a charge against the customer of battery on a law enforcement officer. Tapp v. State, 406 N.E.2d 296, 297 (Ind.Ct.App.1980). In affirming the conviction, this court stated that it agreed with a line of cases from other jurisdictions that “it is the nature of the acts performed and not whether the officer is on or off duty, in or out of uniform, which determines whether the officer is engaged in the performance of his official duties.” Id. at 302 (emphasis added). Had Moore resisted in any way, causing any injury, however insignificant, to Stanford, I have little doubt that Moore could have and would have been charged, as the defendant in Tapp was, with battery on a law enforcement officer because Stanford was performing an act in the nature of a police officer at the time, an incongruous result.

The majority further attempts to distinguish this case from Siropes in that the “evidence here fails to demonstrate that Stanford had access to Moore because of his position as a police officer.” Op. at 608. However, I believe the evidence demonstrates precisely that: Moore testified that he only exited his truck, and thereby subjected himself to Stanford’s physical attack, because Stanford identified himself as an officer. R. 216-17, 229. Stanford himself, both in his testimony and in his written “Miscellaneous Incident Report,” stated that he felt it was his duty as a sworn officer to investigate Moore’s alleged reckless driving. R. 270, Exhibit 4, R. 282. It was Stanford’s position as a police officer with the City which led him to believe he could stop Moore, and it was his identification of himself as an officer which led Moore to submit to Stanford’s requests that he exit his vehicle.

Finally, the majority likens the facts of this ease to those of Konkle, in which this court determined that a church was not liable for the sexual misconduct of a minister because the minister was not engaged in any pastoral acts when the sexual misconduct occurred. However, I believe that Stanford was engaged in the acts of a police officer when he stopped Moore. The subsequent attack on Moore arose out of and was incident to Stanford’s exercise of his police authority in stopping the vehicle. I fail to see how Stanford’s conduct could be considered “divorced ... from his employment duties.” Op. at 608.

I believe that the majority has so narrowly construed the meaning of “scope of employment” that no misconduct by an employee would ever be attributed to the employer. Under the majority’s reasoning, we would always find as a matter of law that the employer is not vicariously liable for the misconduct of its employee because no legitimate employer ever gives an employee instructions to commit misconduct. I cannot agree that the “scope of employment” prong of respondeat superior liability is so limiting.3 *611The supreme court stated in Stropes that “the nature of the wrongful act should be a consideration in the assessment of whether and to what extent” the employee’s acts fall within the scope of employment, citing several cases from other jurisdictions which focus on “how the employment relates to the context in which the commission of the wrongful act arose.” 547 N.E.2d at 249 (emphasis added). Although attacking a motorist is not within the normal course of conduct for a police officer, Stanford’s attack on Moore began in the context of a traffic stop. I would therefore hold that the trial court was correct in denying the City’s motion for judgment on the evidence and allowing the case to proceed to the jury for the determination of whether Stanford’s misconduct arose within the scope of his employment.4

. Although not discussed by the majority, the issue of foreseeability bolsters my opinion that the majority’s scope of employment analysis is too limited under the circumstances of this case. The foreseeability of Stanford engaging in this type of misconduct was great, and even with that knowledge, the City turned its head to the consequences of Stanford's conduct. Prior to his employment with the City, Stanford had been discharged from the Dallas, Texas police department due to several documented incidents of "inability to maintain control of his temper," r. 46, and "difficulty maintaining his self control.” R. 52. While employed by the Dallas Police Department, Stanford was involved in an off-duty incident which resulted in a charge of assault being filed against him, r. 63, and was the defendant in a civil lawsuit filed by an arrestee alleging that Stanford had used excessive force in effecting an arrest. R. 32-45. A pre-employment psychological evaluation conducted at the request of the City resulted in the caution that "one should consider further scrutinizing his *611work history before hiring.” R. 28. After being hired by the City, Stanford was removed from the narcotics division after complaints from his fellow officers about his "loud and aggressive behavior.” R. 30. He was the subject of at least three citizen complaints during his tenure with the City. R. 374, 387, 401. Despite these repeated incidents, the City chose to clothe Stanford with the authority of a police officer and put him in a position of public trust. This foreseeability, coupled with the context in which the attack on Moore arose, makes the majority's scope of employment analysis too restrictive.

. The majority found the issue of scope of employment dispositive of this appeal. Under my resolution of the scope of employment issue, further discussion of the parties' issues would be necessary. However, because the majority has addressed only the scope of employment, I have limited my comments to that issue, as well.