In the

United States Court of Appeals

For the Seventh Circuit

No. 17-2792

REBECCA ZANDER,

Plaintiff-Appellant,

v.

SAMUEL ORLICH, JR., et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Indiana, Hammond Division.

No. 2:14-cv-00400-PRC — Paul R. Cherry, Magistrate Judge.

ARGUED SEPTEMBER 14, 2018 — DECIDED OCTOBER 30, 2018

Before BAUER, HAMILTON, and SCUDDER, Circuit Judges.

BAUER, Circuit Judge. Rebecca Zander filed negligence

claims against John Buncich, in his official capacity as Sheriff

of Lake County, Indiana, as well as intentional tort and civil

rights claims against deputy sheriff Samuel Orlich, Jr. The

District Court had jurisdiction over Zander’s action for

damages for Orlich’s violation of the Fourteenth Amendment
2 No. 17-2792

to the United States Constitution pursuant to 42 U.S.C. § 1983,

and supplemental jurisdiction over her related state claims

against Orlich and Buncich pursuant to 28 U.S.C. § 1367. 

Zander sued Buncich seeking to hold him vicariously liable

for an assault by Orlich. The district court granted Buncich

summary judgment on Zander’s respondeat superior claim,

holding that Orlich was not acting within the scope of his

official duties. The court granted summary judgment to

Buncich on Zander’s negligent hiring, training, and retention

claim, because Zander presented no evidence that Buncich

knew of the necessity of exerting control over Orlich to prevent

his sexual misconduct. Zander appeals the order granting

summary judgment for Buncich. After summary judgment

was granted for Buncich, Zander’s claims against Orlich were

tried to a jury. Zander prevailed, and the jury awarded her

$100,000 in compensatory damages, $275,000 in punitive

damages, and attorneys fees and costs totaling $97,267.80. 

For the reasons that follow, we reverse the summary

judgment for Buncich as to Zander’s respondeat superior claim,

and affirm as to the negligent hiring claim.

I. MATERIAL FACTS

On September 19, 2013, Orlich was working as a deputy for

the Lake County, Indiana, Sheriff's Department (LCSD). He

was wearing his LCSD uniform, and armed with a Glock .40

caliber gun. That same day, Zander’s husband called county

dispatch to report a domestic disturbance at his residence on

Georgia Street. Orlich responded to the call.
No. 17-2792 3

After arriving at the scene, Orlich ordered Zander to leave

the Georgia Street home and go to her other house on White

Oak Avenue. 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 as Orlich’s

supervising officer. Officer Miller gave Orlich permission to

take Zanderto the White Oak Avenue house. Miller and Orlich

dispute whether Miller gave Orlich permission to enter the

White Oak Avenue house to make repairs.

After arriving at the White Oak Avenue house, Orlich and

Zander went to the basement, and Orlich turned on the

electricity and water heater. Orlich was unable to fix the

furnace. Before leaving, Orlich told Zander that she could not

return to the Georgia Street address for several hours. Orlich

left, and Zander closed the house door.

About ten or fifteen minutes after Orlich left the house,

Zander exited the bathroom and found Orlich standing there

naked. He attacked Zander sexually, committing unspeakable

acts, the details of which are unnecessary to repeat in the

record here.

When Orlich got up to put his clothes back on, Zander

crawled to the bathroom and locked the door. Orlich banged

loudly on the bathroom door and said that he could make

Zander’s life very difficult if she said anything about what had

happened. Orlich also told Zander that she could not stay in

the White Oak Avenue house. Zander entered Orlich’s squad

car, and Orlich drove her to her friend's house.
4 No. 17-2792

II. ANALYSIS

Zander brings Indiana state law tort claims against Buncich

in his capacity as Sheriff. Zander asserts that Buncich is

vicariously liable forOrlich's sexual battery and false imprisonment pursuant to the doctrine of respondeat superior and that

Buncich negligently hired, trained, and retained Orlich.

Because resolution of Zander’s claims depends on Indiana law,

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).

We review the district court’s grant of summary judgment

de novo, drawing all reasonable inferences in favor of the party

opposing the motion. Simmons v. Chicago Bd. of Educ., 289 F.3d

488, 491–92 (7th Cir. 2002). Summary judgment should 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).
No. 17-2792 5

A. Respondeat Superior

Under Indiana law, vicarious liability will generally 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). “[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 orit must, to an appreciable extent, further the employer's business.” Id. at 283–84.

Whether an act falls within the scope of employment is

generally a question of fact. See Knighten v. E. Chi. Hous. Auth.,

45 N.E.3d 788, 794 (Ind. 2015). Where conduct involves both

“authorized acts unquestionably within the scope of employment” and “unauthorized acts unquestionably outside the

scope of employment” it should be sent to a jury. Stropes v.

Heritage House Children's Ctr., 547 N.E.2d 244, 249–50 (Ind.

1989).

Liability can be imposed upon employers under respondeat

superiorforthe tortious or criminal acts of their employees. See,

e.g., Stropes, 547 N.E.2d at 250 (Ind. 1989) (employee assaulted

incapacitated patient); Southport Little League v. Vaughan, 734

N.E.2d 261, 268 (Ind. Ct. App. 2000) (equipment manager

molested participating youths). The Indiana Supreme Court

recently reiterated “[c]riminal conduct that violates an employee's official duties, an employer's express orders, or even

a most sacred professional duty may neverthelessbewithinthe

scope of employment. The critical inquiry is whether the

tortious act arose naturally or predictably from the employment context.” Cox v. Evansville Police Dep't, 107 N.E.3d 453,
6 No. 17-2792

463–64 (Ind. 2018) (Summary judgment for police department

on respondeat superior claim reversed where police officer

sexually assaulted woman in his custody).

In Cox, decided afterthe district court's decision inthis case,

the Indiana Supreme Court first spoke directly to the issue of

a police officer’s scope of employment when misusing

employer-conferred power and authority to commit a sexual

assault. Id. There, Officer Mark Rogers of Fort Wayne, Indiana,

was on an operating-while-intoxicated patrol when fellow

officers placed a severely intoxicated woman, Babi Beyer, into

Rogers’ squad car. Id. at 457. When Beyer began vomiting,

Rogers drove her to a hospital. Id. Beyer’s blood alcohol level

was too high for Beyer to leave by herself and the hospital

discharged her into police custody. Id. Rogers handcuffed

Beyer, drove her to a secluded location, and raped her. Id. at

458. Rogers pleaded guilty to official misconduct, sexual

misconduct, and rape. Id. Beyer sued the City of Fort Wayne

on a respondeat superior theory. Id. The Indiana Supreme Court

reversed the lower court’s order of summary judgment for

Fort Wayne, finding that a jury should determine whether

Rogers’ actions fell within the scope of employment. Id. at 464.

Generally, liability under a theory of respondeat superior

attaches for sexual assault only where the assault occurs

during physical, intimate contact required by a job. Doe v. Vigo

Cty., No. 17-3155, 2018 U.S. App. LEXIS 28005, at *7 (7th Cir.

Oct. 3, 2018) (citing Barnett v. Clark, 889 N.E.2d 281, 286 (Ind.

2008)). In Cox, however, the Indiana Supreme Court held that

“police officers' duties come with broad authority and intimidating power that may affect vicarious liability” and because
No. 17-2792 7

of that broad authority “the range of acts for which a city may

be vicariously liable stretches far.” Cox, 107 N.E.3d at 460.

Because “police officers' employer-conferred power and

authority carry an inherent risk of abuse” the inquiry into

whether a police officer’s action fall within the scope of

employment consists of two questions: “First, did the officer

abuse employer-conferred power and authority in committing

the sexual assault? And second, did that abuse of power

and authority flow naturally or predictably from the

police-employment context in which it arose?” Id. at 464. 

Here, the facts show that Orlich abused his employerconferred power when he assaulted Zander. Orlich responded

to the domestic disturbance call as a part of his regular duties,

cloaked in the authority of his uniform. He ordered Zander

into his squad car and transported her to the White Oak

address. Orlich directed her to remain at the property for

several hours, knowing she would be alone when he returned

minutes later. Additionally,Orlich’suniform and sidearm were

present in the room while he assaulted Zander. 

Orlich exploited “unique institutional prerogatives of his

police employment.” Id. Because of this connection, Buncich is

not entitled to summary judgment. Whether Orlich’s employment gave rise to the abuse of that power is a question of fact

for the jury. The jury must determine if Orlich’s “employment

activities naturally or predictably led to ‘his taking advantage

of the opportunity’ to commit sexual assault by abusing the

‘authority and proximity and privacy’ of his employment.” Id.

(citing West ex rel. Norris v. Waymire, 114 F.3d 646, 649 (7th Cir.

1997)).
8 No. 17-2792

The granting of summary judgment to Buncich is reversed

and remanded for further proceedings.

B. Negligent Hiring, Training, and Retention

Indiana law recognizes a cause of action against an employer for the 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 standard set forth

in Restatement (Second) of Torts § 317 governs these claims.

Hudgins, 64 N.E.3d at 925–26.

This general rule states that an employer has a duty to

exercise reasonable care to control his employee to prevent

harm against a person, but this duty exists only if the employer

“(i) knows or has reason to know that he has the ability to

control his [employee], and (ii) knows or should know of the

necessity and opportunity for exercising such control.”

Restatement (Second) of Torts § 317. 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).

To prevail, Zander must show that Buncich knew or had

reason to know that Orlich would act as he did and failed

to take appropriate action to prevent it. See Grzan v. Charter

Hosp., 702 N.E.2d 786, 793 (Ind. Ct. App. 1998) (Summary

judgment was reversed where question of fact remained about

supervisor’s knowledge of ongoing misconduct); see also Frye

v. American Painting Co., 642 N.E.2d 995, 999 (Ind. Ct. App.

1994) (Holding it was foreseeable that a painting company

employee with a history of burglary and arson would burglar-
No. 17-2792 9

ize and set fire to a house.); Sandage v. Board of Commissioners of

Vanderburgh County, 897 N.E.2d 507, 513–14 (Ind. Ct. App.

2008) (Holding it was not foreseeable that a parking company

employee with robbery and drug use history would drive to an

apartment and kill three people). 

Here, there was no evidence that Buncich should have

known that Orlich was likely to assault a member of the public.

The record is absent of any suggestion that Orlich had a history

of this type of misconduct. The district court correctly granted

Buncich’s motion for summary judgment.

III. CONCLUSION

For the foregoing reasons, the order granting summary

judgment for Buncich is REVERSED on Zander’s respondeat

superior claim and REMANDED for further proceedings, and 

AFFIRMED on Zander’s negligent hiring, training and retention claim.