The following is a re-post of an article from The Municipal Minute, an Ancel Glink local government blog edited by Julie Tappendorf ...
After a county employee assaulted a woman volunteer, the victim sued the county arguing that the county was liable for the acts of its employee. In Doe v. Vigo County, the Seventh Circuit Court of Appeals determined that the county could not be held liable because (1) the employee’s job did not require close contact with vulnerable members of the public and (2) there was no evidence the county pursued a policy or custom of tolerating this type of behavior.The employee worked for the county parks department where he oversaw volunteers including those completing community service. The victim alleged the employee brought her to a restroom, locked the door, and sexually assaulted her. The employee was arrested and eventually convicted of criminal confinement and official misconduct.
In finding for the county, the Court held that in cases of sexual misconduct, Indiana law does not hold an employer vicariously liable for an employee’s misconduct unless the employee’s job requires intimate physical contact with individuals. The court distinguished the park employee’s general maintenance and oversight responsibilities with public positions requiring close contact, such as an equipment manager outfitting youth baseball players or a caseworker required to bathe and dress disabled youth. Similarly, the Court rejected the victim’s contention that the county made it a practice to ignore sexual misconduct allegations. Instead, the county was able to rebut several misconduct cases offered by the victim by showing it had either fired, or allowed to resign, at least three of the individuals involved.
While the outcome favored the county in this case, Illinois municipalities should be cautioned that Illinois law may not apply the same standards for vicarious liability. For example, one Illinois appellate court found a school district vicariously liable when its bus driver sexually assaulted a student, without regard to whether the bus driver’s duties involved close contact with students of the kind required by Indiana.
Post Authored by David Warner, Ancel Glink
