The Journal Gazette
Tuesday, September 18, 2018 1:00 am

City can be liable in police suit: High court

Victim of officer's '13 rape included city in civil claim

MATTHEW LEBLANC | The Journal Gazette

The city of Fort Wayne may be held liable for damages in a lawsuit filed against a former police officer who raped a woman while on duty five years ago, the Indiana Supreme Court ruled.

Mark Rogers, 50, raped Babi Beyer on Sept. 1, 2013, after finding her drunk behind the wheel of her car, which was stopped in the road around 2 a.m. Rogers pleaded guilty to rape and other charges and was sentenced to six years in prison.

Beyer sued in 2015, accusing Rogers of assault and battery, false imprisonment, infliction of mental and emotional distress and a violation of her civil rights. The lawsuit also accused the city of negligent hiring, training, supervision and retention, as well as being vicariously liable for Rogers' actions because it was his supervisor.

The city challenged a portion of the lawsuit, arguing it can't be liable because the crime was committed outside the officer's scope of employment.

The high court disagreed and found that the potential for liability is closely tied to the amount of power wielded by an agency and its employees. An opinion written Thursday by Chief Justice Loretta Rush said cities have great power, and they turn that power over to police to detain suspects and make arrests.

“Resounding in our decision today is the maxim that great power comes with great responsibility,” Rush wrote.

The Journal Gazette does not typically name the victims of sex crimes but is doing so in this case because Beyer filed a civil lawsuit.

Rogers was one of three officers who responded to a call about Beyer's car. He was assigned to a drunk driving patrol that night, and Beyer was put into his car to be taken to the Allen County Jail for a breath test, according to court documents.

She vomited as they arrived, so Rogers took her to the hospital. There, a blood test showed an alcohol level of nearly 0.26 – more than three times the legal limit – and she was discharged into Rogers' custody.

He didn't take her back to the jail. Instead, he drove her to a park where he raped her on a bench.

At issue in the lawsuit is a legal doctrine that says a party is responsible for the acts of its agents. Beyer argued that because Rogers was an agent of the city, the city could be held liable.

Justices agreed, stating in the opinion that “police officers' duties come with broad authority and intimidating power that may affect vicarious liablity.”

“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,” the opinion states.

The doctrine states an employer is liable for harmful acts if the acts occurred within the scope of employment.

The city argued the rape was outside the scope of Rogers' employment because “it was neither authorized by the city nor done as a service to the city.” But that doesn't let the city off the hook, Rush wrote.

Holding employers liable for harmful acts helps prevent them from reoccurring, she said.

“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,” the opinion states.

The Fort Wayne case was combined with a similar lawsuit from Evansville. In that case, a woman was sexually assaulted in 2009 by a police officer who was later convicted of criminal deviate conduct and sentenced to 12 years in prison.

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