ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher J. Wheeler Robert T. Keen, Jr.
Stout & Wheeler, P.C. Kelly J. Paulter
Boxberger LLP Carson Boxberger LLP
Angola, Indiana Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE ATTORNEYS FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASSOCIATION INDIANA CHAMBER OF COMMERCE
Frederick R. Hovde IND. SCHOOL BOARDS ASSOC.
Nicholas C. Deets IND. ASSOC.OF PUBLIC SCHOOL SUPERINTENDENTS
Hovde Dassow & Deets, LCC IND. ASSOC. OF CITIES AND TOWNS
Indianapolis, Indiana IND. MUNICIPAL LAWYERS ASSOC, and
INSURANCE INSTITUTE OF INDIANA
Thomas E. Wheeler, II
Locke Reynolds LLP
Indianapolis, Indiana
FILED
______________________________________________________________________________
In the Jun 27 2008, 2:40 pm
Indiana Supreme Court CLERK
of the supreme court,
court of appeals and
tax court
_________________________________
No. 76S03-0803-CV-148
DEBRA A. BARNETT, Appellant (Plaintiff below),
v.
CAMILLE CLARK, TRUSTEE OF PLEASANT TOWNSHIP, Appellee (Defendant below).
_________________________________
Appeal from the Steuben Circuit Court, No. 76C01-0503-CT-122
The Honorable Allen N. Wheat, Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 76A03-0704-CV-182
_________________________________
June 27, 2008
Dickson, Justice.
The plaintiff Debra A. Barnett is seeking damages from the defendant Camille Clark,
Trustee of Pleasant Township in Steuben County, Indiana, for the conduct constituting rape, sex-
ual battery, and false imprisonment committed by one of the Trustee's employees. The trial court
granted summary judgment in favor of the defendant Trustee, and the Court of Appeals reversed.
Barnett v. Clark, 877 N.E.2d 839 (Ind. Ct. App. 2007). We granted transfer and now affirm the
trial court.
In appealing the grant of summary judgment, the plaintiff has contended that that the
Trustee may be held vicariously liable for its employee's actions under the theory of respondeat
superior for wrongful acts committed within the scope of the employment, citing Stropes v.
Heritage House Children's Ctr., 547 N.E.2d 244, 247 (Ind. 1989). She argues that summary
judgment is improper because some of the employee's acts were authorized, and thus the ques-
tion of whether the employee's injurious acts to the plaintiff, even if unauthorized, were never-
theless within the scope of employment, is a jury question. In response, the defendant Trustee
contends that, because the employee's authorized job duties did not involve any physical contact
with the plaintiff, the Trustee is not vicariously liable as a matter of law for acts clearly outside
the scope of employment. The parties disagree about the holding of Stropes and its application
to the instant facts. The briefs of the amici also focus on their respective views regarding S-
tropes.
Since this is an appeal from the granting of the defendant Trustee's motion for summary
judgment finding that the alleged acts of the Trustee's employee were not performed within the
scope of his employment, the issue before us is whether the materials submitted to the trial court
establish the absence of a genuine issue of material fact upon such issue, and if so, whether the
Trustee is entitled to judgment thereon as a matter of law. We must construe all facts and rea-
sonable inferences in favor of the plaintiff as the non-moving party. Ho v. Frye, 880 N.E.2d
1192, 1197 (Ind. 2008); Worman Enterprises, Inc. v. Boone County Solid Waste Management
Dist., 805 N.E.2d 369, 373 (Ind. 2004); Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.
1999). The facts and inferences indicate that the plaintiff had sought public assistance from her
local trustee's office, where she was interviewed by a deputy trustee, an employee of the defen-
dant Trustee. The deputy advised the plaintiff that if she wanted to receive assistance, she would
have to do some bookwork for him at the rate of $10.00 per hour. Several days later, the plaintiff
returned to the same trustee's office to do the bookwork, and the deputy gave her instructions.
When the plaintiff had finished her tasks, the deputy reviewed the work with the plaintiff in a
2
back room of the office and then closed the door, blocked it with a chair, turned off the lights,
and sexually assaulted the plaintiff. 1 The deputy told the plaintiff to return to the office the next
morning to do more paperwork, but the plaintiff instead informed the police of the assault. The
deputy was charged and pleaded guilty to Sexual Battery as a class D felony and Battery as a
class B misdemeanor. He was sentenced to 18 months in prison and ordered to register as a sex
offender. Appellant's App'x at 33-34.
The general rule is that vicarious liability will be imposed upon an employer under the
doctrine of respondeat superior where the employee has inflicted harm while acting "within the
scope of employment." Sword v. NKC Hospitals, Inc, 714 N.E.2d 142, 148 (Ind. 1999); Warner
Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997); Helfrich v. Williams,
84 Ind. 553, 554-55 (1882). And in order for an employee's act to fall "within the scope of em-
ployment," the injurious act must be incidental to the conduct authorized or it must, to an appre-
ciable extent, further the employer's business. Celebration Fireworks, Inc. v. Smith, 727 N.E.2d
450, 453 (Ind. 2000); see also, Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993); Hurlow v.
Managing Partners, Inc., 755 N.E.2d 1158, 1162 (Ind. Ct. App. 2001).
The Restatement of Agency advises that "[a]n employer is subject to vicarious liability
for a tort committed by its employee acting within the scope of employment." Restatement
(Third) of Agency, § 7.07(1) (2006); see also id. at § 2.04. Further, "[a]n employee acts within
the scope of employment when performing work assigned by the employer or engaging in a
course of conduct subject to the employer's control. An employee's act is not within the scope of
employment when it occurs within an independent course of conduct not intended by the em-
ployee to serve any purpose of the employer." Id. at § 7.07(2) (emphasis added). Comment c to
Section 7.07 explains that "[a]n employee may engage in conduct, part of which is within the
scope of employment and part of which is not." To illustrate this principle, the Comment de-
scribes an employee driving a truck in the scope of employment, and who becomes irate at an-
1
The sole basis of liability asserted by the plaintiff is that the Trustee is vicariously liable on the theory of
respondeat superior for "uninvited sexual acts" of an employee. Appellant's Br. at 1. She asserts that, as
a condition of her receiving financial assistance, the employee required that she "do some book work,"
but she does not base her claim on any contention that the employee demanded sexual favors as a precon-
ditiion or in return for government benefits to which she may have been entitled.
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other motorist, leans out the truck cab, and shoots the driver whose conduct enraged him. While
the shooting occurred in the midst of the employee's duties of employment, the shooting "is not
within the scope of employment." Id. at § 7.07 cmt. c.
Situations may arise, however, in which vicarious liability may be imposed upon em-
ployers for the tortious or criminal acts of their employees. See, e.g., Stropes, 547 N.E.2d at 250
(employee assault upon incapitated patient); Southport Little League v. Vaughan, 734 N.E.2d
261, 268 (Ind. Ct. App. 2000) (equipment manager's molestation of participating youths); Gomez
v. Adams, 462 N.E.2d 212, 224-25 (Ind. Ct. App. 1984) (private security officer's assault and
battery, forgery, conversion, and theft)); Tippecanoe Beverages v. S.A. El Aguila Brewing Co.,
833 F.2d 633 (7th Cir. 1987) (manufacturer's agent committed conversion of payment from
wholesaler).
In Stropes, this Court reversed the grant of summary judgment to the defendant facility,
where the plaintiff had been placed as a ward of the Marion County Welfare Department. The
plaintiff was a fourteen-year-old victim of cerebral palsy with "the mental capacity of a five-
month-old infant and was without the verbal and motor skills necessary to perform or assist in
even the simplest tasks associated with his own sustenance or sanitation." Stropes, 547 N.E.2d at
245. It was the duty of Griffin, one of the defendant facility's employees, to feed, bathe, and
change the bedding and clothing of its residents, including the plaintiff. In the course of chang-
ing the plaintiff's bed linens, Griffin sexually assaulted the plaintiff and then completed changing
the bed. Our opinion in Stropes acknowledges the general rule that, for purposes of imposing
vicarious liability, an employer is not responsible for acts done outside the scope of employment,
that is, "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." Id. at 247 (included quotation and citations omitted). But
Stropes explains that "an employee's wrongful act may still fall within the scope of his employ-
ment if his purpose was, 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." Id. In evalu-
ating this issue, Stropes specifically noted the following facts:
Griffin began the episode by performing a fully authorized act, stripping the sheets from
David's bed prior to changing the bedding. He was also authorized to undress David
Stropes and to touch his genitals and other parts of his body when bathing him and
4
changing his clothes. Had David been distressed or frightened, the nurse's aid could have
appropriately offered comfort and assurance by a pat or a caress; had he been violent or
resistant, Griffin could have used appropriate physical force to restrain him. Griffin also
ended the episode with a fully authorized act, dressing David for the day.
Id. at 249. Reasoning that these facts could be viewed as showing that the employee acted to an
appreciable extent to further his employer's business and that the actions were at least for a time
authorized by the employer and motivated by the employer's interests, we noted that these infer-
ences could lead to the conclusion that the "wrongful acts fell within the scope of his employ-
ment and Heritage should be accountable." Id. at 250. We concluded that "[t]he nature of the
acts were, at the very least, sufficiently associated with Griffin's authorized duties to escape dis-
missal on summary judgment." Id. 2
The issue of vicarious liability for an employee's sexual offense has also been confronted
in Vaughan, 734 N.E.2d at 261, and Konkle v. Henson, 672 N.E.2d 450 (Ind. Ct. App. 1996),
both of which sought to follow Stropes.
In Vaughan, the court affirmed a jury verdict imposing vicarious liability for an equip-
ment manager's sexual molestation of youths participating in a summer baseball program. Af-
firming the denial of summary judgment, the court accepted the plaintiffs' argument that the des-
ignated materials raised the inference that the equipment manager's acts in viewing the boys'
genitalia for sexual gratification and when he sexually molested the youths were sufficiently as-
sociated with conduct by the manager that the defendant league had authorized, including fitting
the boys with uniforms. Citing Konkle, the court in Vaughan held that because some of the
equipment manager's actions were authorized, it was proper to deny summary judgment and to
permit the jury to determine whether the employee's injurious actions were within the scope of
employment.
Reaching a contrasting result, the Konkle court affirmed summary judgment and refused
to impose vicarious liabilty upon a church for its minister's acts of child molestation. While find-
ing that the minister had access to the child because of his position as pastor, the court found that
2
As an independent, alternate basis for reversing summary judgment, Stropes also found "that Heritage
assumed a non-delegable duty to provide protection and care so as to fall within the common carrier ex-
ception." Id. at 254.
5
his unauthorized acts "are not similar to his duties as a minister," and that he "was not engaging
in authorized acts or serving the interests of his employer" when the molestation occurred. K-
onkle, 672 N.E.2d at 457. In its discussion, however, Konkle opined that "[i]f some of the em-
ployee's actions were authorized, the question of whether the unauthorized acts were within the
scope of employment is one for the jury," id. at 457, and as authority for this premise cited S-
tropes, 547 N.E.2d at 249-50. While the Konkle court may have been attempting to capsulize a
holding in Stropes, this premise is neither expressly stated nor directly implied therein. Stropes
emphasized that "the focus must be on how the employment relates to the context in which the
commission of the wrongful act arose," 547 N.E.2d at 249, and that, under the facts presented,
"[t]he nature of the acts were, at the very least, sufficiently associated with Griffin's authorized
duties to escape dismissal on summary judgment," id. at 250.
Taking the facts of the present case favorable to the plaintiff, as we must, we nevertheless
conclude here that the injurious actions of the deputy trustee were not sufficiently associated
with his employment duties so as to fall within the scope of the deputy's employment by the de-
fendant Trustee. The nature of the deputy trustee's duties and authority differs vastly from the
employee in Stropes. Other than perhaps a greeting handshake, the employee was not explicitly
or impliedly authorized to touch or confine applicants for assistance. His alleged acts of confin-
ing, sexually touching, and raping the plaintiff were not an extension of authorized physical con-
tact. Such acts were not incidental to nor sufficiently associated with the deputy trustee's author-
ized duties. They did not further his employer's business. And they were not motivated to any
extent by his employer's interests. The deputy trustee's injurious acts did not fall within the
scope of his employment for the defendant Trustee, and thus the Trustee is not vicariously liable
under the doctrine of respondeat superior.
We affirm the judgment of the trial court granting summary judgment to the defendant,
Camille Clark, Trustee of Pleasant Township, Steuben County, Indiana.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
6