Zander v Lake County, Indiana et al

Filing 77

OPINION AND ORDER: The Court hereby GRANTS the Defendant Sheriff John Buncich's 59 Motion for Summary Judgment. Signed by Magistrate Judge Paul R Cherry on 6/6/17. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
REBECCA ZANDER,
Plaintiff,
v.
SAMUEL ORLICH, JR. and JOHN BUNCICH,
Sheriff of Lake County,
Defendants.

)
)
)
)
)
)
)
)

Cause No.: 2:14-CV-400-PRC

OPINION AND ORDER
This matter is before the Court on Defendant Sheriff John Buncich[’s] Motion for Summary
Judgment [DE 59], filed on December 28, 2016. For the reasons stated below, the Court grants the
motion.
PROCEDURAL BACKGROUND
Plaintiff Rebecca Zander initiated this cause of action on November 3, 2014, by filing a
Complaint. With the Court’s leave, Zander filed an Amended Complaint on June 23, 2015. In the
Amended Complaint, Zander brings claims against Samuel Orlich, Jr. in his individual and official
capacities; John Buncich, Sheriff of Lake County, Indiana; and Lake County, Indiana.
On December 23, 2016, an agreed Motion to Dismiss was filed as to Zander’s claims against
Orlich in his official capacity. The Court granted that Motion on January 3, 2017.
On December 30, 2016, Orlich filed a Motion for Summary Judgment. The Court denied that
motion on May 25, 2017.
On January 10, 2017, an agreed Motion to Dismiss was filed as to Zander’s claims against
Lake County, Indiana. The Court granted that motion on January 11, 2017.

On December 28, 2016, Buncich filed the instant Motion for Summary Judgment and a
memorandum in support. On January 25, 2017, Zander filed a response. Buncich filed a reply on
February 8, 2017. The motion is fully briefed and ripe for ruling.
Zander and Orlich orally agreed on the record and Buncich filed a form of consent to have
this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order
the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case
pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure require that a motion for summary judgment be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “Summary judgment is appropriate when no material fact is disputed and the
moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could
find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566
(7th Cir. 2014).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply
2

“‘showing’—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798
F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial,
the moving party is not required to support its motion with affidavits or other similar materials
negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08;
Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
“Once the moving party puts forth evidence showing the absence of a genuine dispute of
material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating
a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that the movant is
entitled to it . . . .” Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.
In viewing the facts presented on a motion for summary judgment, a court must construe all
facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court’s role is not to
3

evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
MATERIAL FACTS
On September 19, 2013, Orlich was working as a deputy for the Lake County Sheriff’s
Department (LCSD). He was wearing his LCSD uniform, wearing a LCSD badge, and carrying on
his gun belt a Glock .40 caliber gun, two sets of handcuffs, and two handgun magazines.
That same day, Zander’s husband called county dispatch to report a domestic disturbance
at his residence on Georgia Street. Dispatch did not initially send Orlich to the call, but Orlich
indicated that he would go on the call. Orlich was driving his LCSD-issued police vehicle. Orlich
called dispatch to obtain details regarding the divorce proceedings between Zander and her husband.
Some time after his arrival at the scene, Orlich told Zander that she must leave the Georgia
Street home and go to her other house on White Oak Avenue or go to the Lake County Jail. Orlich
testified that this was done in order to give Zander and her husband a cool-down period. Zander told
Orlich that she could not go to the White Oak Avenue house because the furnace and electric panel
had been dismantled.
Officer Michael Miller was also at the scene and was the supervising officer. Miller
described Zander as upset, flustered, and talking fast. Miller did not recall, nor did his narrative
report indicate, any reason why Zander could not drive her own vehicle to the White Oak Avenue
house. Zander and her husband both testified that the officers said that Zander was not in a condition
to drive.
Orlich testified that he received permission from Officer Miller to take Zander to the White
Oak Avenue house and to perform work on the house’s furnace and electrical panel. Officer Miller
4

testified that he gave Orlich permission to transport Zander to the White Oak Avenue house but that
he did not discuss or give permission for Orlich to perform any work inside the White Oak Avenue
house.
After arriving at the White Oak Avenue house, Orlich radioed dispatch and indicated that
he was available for calls. Orlich entered the White Oak Avenue house. Orlich and Zander went to
the basement, and Orlich turned on the electricity and water heater. Orlich also looked at the furnace
but was unable to fix it. Zander testified that Orlich told Zander she was allowed to return to the
Georgia Street house at 2:30 p.m. Zander also testified that Orlich left the house and that Zander
closed the house door.
Zander’s description of the alleged sexual encounter is as follows. Zander entered the master
bathroom. About ten or fifteen minutes after Orlich left the house, Zander exited the bathroom and
found Orlich standing naked with an erection, holding a pair of white lace underwear. His uniform
and gun belt were in the room. Zander was in shock and “was like, Oh, my God. Please don’t even
tell me what I think is about to happen is going to happen.” (Zander Dep. 63:8-10, ECF No. 71-3).
Orlich grabbed Zander by the arms, threw her down on the bed, got on top of her, and lifted her
shirt. Orlich put his penis between her breasts and screamed “suck my balls.” Id. at 63:2-3. Orlich
pushed Zander’s head up so it was closer to his genitals and put his testicles in Zander’s mouth.
Zander asked Orlich not to rape her. Orlich ejaculated on Zander. After Orlich ejaculated, he got up
to get his clothes, and Zander crawled to the bathroom and locked the door. Orlich banged loudly
on the bathroom door and said that the encounter had to stay between Orlich and Zander and that
he could make Zander’s life very difficult if she said anything. Orlich also told Zander that she could
not stay in the White Oak Avenue house, that she had to go with Orlich, and that he would take her
to her friend’s house.
5

Orlich testified that the sexual encounter was initiated by Zander and was consensual.
After the sexual encounter, Zander entered Orlich’s squad car. Orlich took Zander to her
friend’s house. Later that day, Zander reported the incident to the Indiana State Police.
Buncich testified as follows. As a sheriff’s deputy, Orlich was authorized to have physical
contact with private citizens, such as during an arrest, helping a person in or out of a vehicle, or
other times when necessary. He was not authorized to have sexual relations with Zander while on
duty, regardless of whether Zander consented to Orlich’s actions. Sheriff’s deputies have authority
to make decisions and to act on their own while on the job, and deputies have the authority to arrest,
ticket, and take individuals to jail.
ANALYSIS
Zander brings Indiana state law tort claims against Buncich in his official capacity. Zander
alleges that Buncich is vicariously liable for Orlich’s alleged torts pursuant to the doctrine of
respondeat superior and that Buncich negligently hired, trained, and retained Orlich. The Court must
apply Indiana law as the Indiana Supreme Court would apply it. Home Valu, Inc. v. Pep Boys, 213
F.3d 960, 963 (7th Cir. 2000).
A. Respondeat Superior
The parties dispute whether Indiana Code section 36-2-16-3 renders Buncich liable for
Orlich’s actions. Section 36-2-16-3 provides that an officer is responsible for all of the official acts
of the deputies appointed by that officer in accordance with that chapter of the Indiana Code.
Buncich argues that he is responsible for only the first or chief deputy and not any subsequent
deputies. In support, Buncich cites to Indiana Code section 36-2-16-4. However, this section
authorizes Buncich to appoint a first or chief deputy “and also . . . other full-time or part-time
deputies . . . authorized by the county fiscal body.” Section 36-2-16-4 makes an officer responsible
6

for the official acts of all of the deputies, not just the first or chief deputy. Buncich also argues that
Orlich’s actions were not “official acts.” Zander has presented no evidence that Orlich’s actions
were “official acts.” Therefore, her reliance on section 36-2-16-3 is misplaced. However, the
doctrine of respondeat superior exists separately from this code section.
“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.’” Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008) (citing 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)). “[I]n order for
an employee’s act to fall ‘within the scope of employment,’ the injurious act must be incidental to
the conduct authorized or it must, to an appreciable extent, further the employer’s business.” Id. at
283-84 (citing Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000); 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)).
Zander argues that there should be a more specific rule for police or sheriff’s departments
that brings more actions under respondeat superior liability. In support, Zander relies heavily on
dicta in West v. Waymire, 114 F.3d 646 (7th Cir. 1997). In West, there were no state tort claims
brought against the employer, only federal claims to which respondeat superior does not apply.
Id. at 649. Zander also supports her argument with Doe v. City of Chicago, 360 F.3d 667 (7th Cir.
2004), which applies Illinois law, and with cases that have no precedential authority here, such as
Mary M. v. City of Los Angeles, 814 P.2d 1341 (Cal. 1991).
Zander has identified no case law from an Indiana state court indicating that Indiana state
law on respondeat superior should include more actions when the employee is a police officer or
7

sheriff’s deputy. She does cite, without analysis, Ingram v. City of Indianapolis, 759 N.E.2d 1144,
1146-48 (Ind. Ct. App. 2001). The Ingram decision is not a ruling on a motion for summary
judgment. It is a decision on an appeal from a declaratory judgment determining whether the city
had a duty to provide a defense for its police officer for actions alleged to have been completed
within the scope of his official duties. The Indiana Court of Appeals determined that the allegations
of the complaint sufficiently alleged that the police officer at issue used his powers to solicit sex and
that the city was obligated to provide a defense. Unlike in Ingram, the Court is not looking at the
sufficiency of Zander’s allegations. Zander cannot rest on the allegations in her Amended Complaint
to withstand the instant motion. Additionally, the Court does not see any statement in Ingram, and
Zander has not identified one, that indicates that the scope of employment analysis is broader for
police and sheriff’s departments.
Further, even if the Court were “faced with two opposing and equally plausible
interpretations of state law, [the Court would] generally choose the narrower interpretation which
restricts liability.” Home Valu, Inc., 213 F.3d at 963 (internal quotation marks omitted) (quoting
Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir. 1996)). Because there is no indication that Indiana
courts would expand respondeat superior liability for police and sheriff’s departments, the Court
will apply the general rule.
Liability can be imposed upon employers under respondeat superior for the tortious or
criminal acts of their employees. See, e.g., Stropes v. Heritage House Children’s Ctr., 547 N.E.2d
247, 250 (Ind. 1989) (employee assault upon incapacitated patient); Southport Little League v.
Vaughan, 734 N.E.2d 261, 268 (Ind. Ct. App. 2000) (equipment manager’s molestation of
participating youths). This is because “an employee’s wrongful act may still fall within the scope
of his employment if his purpose was, to an appreciable extent, to further his employer’s business,
8

even if the act was predominantly motivated by an intention to benefit the employee himself.”
Stropes, 457 N.E.2d at 247. “[T]he focus must be on how the employment relates to the context in
which the commission of the wrongful act arose,” and the nature of the acts must be “sufficiently
associated” with the employer-authorized acts. Id. 249, 250. Several cases that were decided in
Indiana state courts help clarify when an employee’s tortious or criminal actions are within the scope
of employment.
In Stropes, the employer was not entitled to summary judgment on respondeat superior
claims when its employee, who was authorized to undress and bathe the employer’s resident,
sexually assaulted the resident in the middle of performing job functions. Id. at 249.
In Vaughan, the employer was not entitled to judgment on the evidence that it was not liable
for acts of its employee where the employee was authorized to fit little league participants for their
uniforms, and the employee molested some of the participants during a game in an equipment shed
where the employee was authorized to be. 734 N.E.2d at 270.
In Konkle v. Henson, 672 N.E.2d 450 (Ind. Ct. App. 1996), though the minister allegedly
molested the victim in the church building, no evidence was presented that he was engaging in
employer-authorized acts at the time, so summary judgment in favor of the church on the issue of
respondeat superior liability was proper. 672 N.E.2d at 457.
In Harrison County Sheriff’s Department v. Ayers, 70 N.E.3d 414 (Ind. Ct. App. 2017), the
employer was entitled to summary judgment on respondeat superior liability where the employee
was an off duty sheriff’s deputy who had an argument with his wife, which ended in her shooting
herself with the deputy’s police-issued gun. Id. at 418-19.
In Barnett, the deputy trustee was not authorized to touch—“[o]ther than perhaps a greeting
handshake”—or confine applicants for assistance; the Indiana Supreme Court found the deputy
9

trustee’s alleged acts of confining, sexually touching, and raping the plaintiff in a back room of the
employer’s office to be outside the scope of employment. Barnett, 889 N.E.2d at 286.
The context in which the alleged actions arose was Orlich’s employment as a sheriff’s
deputy. He responded to a domestic disturbance call at the Zander residence, and, due to the nature
of the call, he removed Zander to the White Oak Avenue house. A question of fact exists as to
whether Orlich was authorized by his employer to enter the house to perform some repairs.
Regardless of Orlich’s authorization to be in the house to perform repairs, if the jury believes
Orlich’s set of facts regarding the sexual encounter then there was no tortious action, and, if the jury
believes Zander’s and Buncich’s set of facts regarding the encounter, then Orlich left the White Oak
Avenue house after the repairs and re-entered the house a few minutes later. Thus, when he entered
the house a second time, he was not authorized by his employer to be there, as he had completed the
repair work that may have authorized his presence in the house.
Zander presented three allegations of false imprisonment against Orlich. Only one of those
instances occurred prior to Orlich leaving the White Oak Avenue house the first time—Orlich’s
order to Zander to stay in the White Oak Avenue house until 2:30 p.m. In Zander’s argument that
Buncich is not entitled to summary judgment on the respondeat superior claims, Zander does not
argue or present evidence that Buncich should be held liable for this false imprisonment. Therefore,
she has not met her burden to withstand the motion as to this allegation. The other two alleged
instances of false imprisonment and the alleged sexual battery occurred after Orlich’s first departure
from the house—that is, after his authorization to be in the house concluded (if he ever possessed
such authority).
In addition to his lack of authority to be in the house during the commission of the alleged
torts, Orlich did not possess the authority to have sexual relations while on duty, though he did have
10

authority to touch members of the public when necessary. Unlike Stropes or Vaughan where the
authorized touching was a specific part of the authorized duties regarding the victim—bathing a
facility resident or fitting uniforms for little league players—there is no evidence here that Orlich
had any specific duty or authority to touch Zander, beyond, perhaps, helping her in and out of his
police vehicle after transporting her to the White Oak Avenue house. This case is more in line with
Barnett, though Orlich possessed more, but not significantly more, authority to touch Zander than
the possible handshake authorized to the employee in Barnett.
Given the context of the alleged torts (which occurred in a location that Orlich had no
authority to be in at the time) and focusing on the association with the employer-authorized activities
(sexual activity was not permitted, and there was no specific duty or authorization to touch Zander,
beyond, perhaps, helping her in and out of Orlich’s vehicle), the alleged tortious acts are not
sufficiently associated with employer-authorized activities to be within the scope of employment.
Because the actions are outside the scope of Orlich’s employment, Buncich is entitled to summary
judgment on the respondeat superior claims.
B. Negligent Hiring, Training, and Retention
Zander brings claims of negligent hiring, training, and retention against Buncich in
Paragraph 26 of her Amended Complaint. Zander argues that Buncich is liable for this negligence
as to Orlich’s alleged sexual misconduct. Zander does not argue that Buncich is liable for negligent
hiring, training, and retention as to the alleged false imprisonment.
Indiana law recognizes a cause of action against an employer for negligent hiring, training,
and retention of an employee. See Hudgins v. Bemish, 64 N.E.3d 923, 925-26 (Ind. Ct. App. 2016);
Levinson v. Citizens Nat’l Bank of Evansville, 644 N.E.2d 1264, 1269 (Ind. Ct. App. 1994). The

11

standard set forth in Restatement (Second) of Torts § 317 governs these claims. Hudgins, 64 N.E.3d
at 925-26; Konkle, 672 N.E.2d at 454. Section 317 of the Restatement provides:
A master is under a duty to exercise reasonable care so to control his servant while
acting outside the scope of his employment as to prevent him from intentionally
harming others or from so conducting himself as to create an unreasonable risk of
bodily harm to them, if:
(a)
the servant
(i)
is upon the premises in possession of the master or upon which the
servant is privileged to enter only as his servant
(ii)
is using a chattel of the master, and
(b)
the master
(i)
knows or has reason to know that he has the ability to control his
servant, and
(ii)
knows or should know of the necessity and opportunity for exercising
such control.
Restatement (Second) of Torts § 317 (1965). Where a general duty has been articulated,
foreseeability is “the critical inquiry” in determining whether the general duty applies to a particular
scenario. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016). Existence of a duty is a matter of law
for courts to decide. Id.
Though both parties state that duty is imposed if a reasonably foreseeable victim is injured
by a reasonably foreseeable harm, that is not the appropriate inquiry. The Supreme Court of Indiana
recently clarified that “in the duty arena, foreseeability is a general threshold determination that
involves an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm.” Id. at 325.
A court’s task—in determining ‘duty’—is not to decide whether a particular
plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s
conduct, but rather to evaluate more generally whether the category of negligent
conduct at issue is sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed on the negligent party.
Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 391 (Ind. 2016) (alteration omitted)
(quoting Strahin v. Cleavenger, 603 S.E.2d 197, 207 (W.Va. 2004)).

12

Here, the relevant “broad type of plaintiff” is a member of the public with whom a sheriff’s
deputy interacts in responding to a call. The broad type of harm is intentional torts against the
person. The general rule states that there is a duty of the master to exercise reasonable care to control
the servant to prevent such a harm against such a person, but with an important condition: this duty
exists only if “the master (i) knows or has reason to know that he has the ability to control his
servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.”
Restatement (Second) of Torts § 317. The parties dispute whether Buncich should have known of
the necessity and opportunity for controlling Orlich.
In Frye v. American Painting Co., 642 N.E.2d 995 (Ind. Ct. App. 1994), an employee was
retained at his employment with the defendant painting company after he committed burglary, theft,
and arson. 642 N.E.2d at 997. In his continued employment, the employee burglarized and set fire
to a house he was painting as part of his employment. Id. The Indiana Court of Appeals determined
that whether the employer should have foreseen that the employee posed a danger to its customers
and whether it breached a duty to the plaintiff by retaining the employee should be resolved by a
jury. Id. at 999.
In Sandage v. Board of Commissioners of Vanderburgh County, 897 N.E.2d 507 (Ind. Ct.
App. 2008), Travis Moore was serving a sentence for robbery and was a participant in a work release
program. Id. at 509. While participating in work release and working for Porter’s Parking, Moore
tested positive for drugs and had unaccountable time on one day. Id. A few months later, while still
working for Porter’s Parking on work release, Moore drove to an apartment and killed three people
and himself. Id. at 509-10. Suit was brought against Porter’s Parking for negligent hiring and
retention. Id. at 510. The plaintiffs argued that Porter’s Parking should have known about Moore’s
criminal history and drug use. Id. at 511. The Indiana Court of Appeals found that Porter’s Parking
13

had no duty of care to Moore’s victims. Id. at 514. In so finding, the court emphasized that Moore’s
actions were not a recurrence of Moore’s earlier criminal behavior. Id. at 513-14 (citing Clark v.
Aris, Inc., 890 N.E.2d 760, 765 n.1 (Ind. Ct. App. 2008) (noting that an employee’s criminal history
of burglary, theft, and receiving stolen property does not render a subsequent murder by the
employee a reasonably foreseeable harm)). The court also noted that Moore’s employment did not
put him in contact with the victims and that Moore was not authorized to enter the apartment by
virtue of his employment. Id. at 513.
Buncich argues that he had no reason to suspect a need to control Orlich so as to prevent the
alleged actions by Orlich, and, thus, Buncich owed no duty to Zander, and Zander’s claims of
negligent hiring, training, and retention fail.
Zander counters that Buncich should be held to have a duty to her. In support, Zander points
to the power and control given to sheriff’s deputies. Because they have the authority to detain
criminal suspects and, in some circumstances, use deadly force, she argues that it is not surprising
that occasionally deputies “misuse that authority by engaging in assaultive conduct.” (Resp. at 21,
ECF No. 69). Zander contends that sexual battery is subsumed within this larger category of misuse
of authority. Zander does not mention any of Orlich’s past conduct in arguing that summary
judgment is not appropriate on these claims. Zander notes that the Seventh Circuit Court of Appeals
suggested that “[m]aybe . . . a police department should be held strictly liable for torts of police
officers who use their official powers to commit the torts.” Doe v. City of Chicago, 360 F.3d, 667,
671 (7th Cir. 2004). That case, however, applied Illinois law and not Indiana law, and the court, far
from holding that police departments should be strictly liable, was only suggesting strict liability as
a possibility.

14

This Court rejects the idea that misconduct by a few bad actors should put all police
departments and sheriff’s departments on notice that each and every one of their police officers and
sheriff’s deputies may misconduct themselves; this cannot satisfy the requirement that the master
know or should know cause to exercise control over the servant. As in Sandage and unlike in Frye,
there is no evidence of Orlich misconducting himself on a previous occasion in the manner alleged
in the instant suit. Buncich had no reason to know of the necessity of exerting control over Orlich
so as to prevent Orlich’s alleged sexual misconduct. Accordingly, Buncich had no duty to exercise
reasonable care to control Orlich, and Buncich is entitled to summary judgment on the negligent
hiring, training, and retention claims.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the Defendant Sheriff John Buncich[’s]
Motion for Summary Judgment [DE 59].
SO ORDERED this 6th day of June, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

15