FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
CARL PAUL LAMB SCOTT P. WHONSETLER
Carl Lamb and Associates JAMES N. MARTIN, JR.
Bloomington, Indiana Whonsetler & Johnson, PLLC
Louisville, Kentucky
ROBERT G. ZEIGLER
JENNIFER A. PADGETT
Zeigler Cohen & Koch
Indianapolis, Indiana
Nov 20 2013, 10:04 am
IN THE
COURT OF APPEALS OF INDIANA
THOMAS HAGGERTY AND, )
CATHY HAGGERTY, )
)
Appellants/Cross-Appellees, )
)
vs. ) No. 53A01-1210-CT-472
)
ANONYMOUS PARTY 1, )
)
Appellee, )
)
ANONYMOUS PARTY 2, AND )
ANONYMOUS PARTY 3, )
)
Appellees/Cross-Appellants. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Frances G. Hill, Judge
Cause No. 53C06-1001-CT-177
November 20, 2013
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
In the winter of 2008, pawn-shop owner Thomas Haggerty was hospitalized for
complications related to his alcoholism. Immediately after his release from the hospital,
he traveled to a treatment facility in Indianapolis, but he became agitated when
professionals there recommended in-patient treatment. He refused treatment and
informed staff and security officers that he would walk back to his home in Bloomington,
despite the fact that it was nighttime and the temperature was well below freezing.
Security officers took him to a nearby medical facility, where he was detained and
evaluated. He was treated and released four days later.
Thomas and his wife Cathy (collectively, “the Haggertys”) later filed a proposed
medical-malpractice complaint against three parties (“the anonymous parties”) involved
in Thomas’s detention. The Haggertys also filed an action against the same parties in
Monroe Circuit Court. The anonymous parties filed motions for summary judgment,
arguing that they were immune from liability under Indiana law. The trial court granted
summary judgment for the first anonymous party, AP1, but denied the joint summary-
judgment motion of the remaining parties, AP2 and AP3. The Haggertys appealed the
grant of summary judgment. AP2 and AP3 filed a belated motion to certify the trial
court’s order for interlocutory appeal. The trial court granted the belated motion, and this
Court accepted jurisdiction over the combined appeal.
The parties make a number of arguments on appeal. The main arguments,
however, pertain to jurisdiction and immunity. The Haggertys argue that the trial court
did not have jurisdiction to rule on the issue of immunity because that issue was reserved
2
for the medical review panel. They also argue that none of the anonymous parties are
entitled to immunity under Indiana law because they violated Thomas’s personal or civil
rights.
We conclude that the trial court had jurisdiction to rule on the issue of immunity
because it is an affirmative defense. We also conclude that the Haggertys’ suit against
the anonymous parties is barred by statutory immunity. We affirm the trial court’s grant
of summary judgment, on immunity grounds, to AP1. We conclude that there is no
genuine issue of material fact as to whether immunity also applies to AP2 and AP3; thus,
we reverse the trial court’s denial of their motion for summary judgment. We affirm in
part and reverse in part.
Facts and Procedural History
Thomas Haggerty, a pawn-shop owner living in Bloomington, Indiana, has a long
history of alcohol abuse. By age fifty-eight, Thomas consumed twelve beers and a liter
of vodka daily. One day in January 2008, Thomas was hospitalized after he lost
consciousness at his home. Doctors at a local hospital determined that Thomas had
experienced a grand-mal seizure.
Thomas was hospitalized for ten days. During this time he was treated for alcohol
withdrawal and severe anemia caused by his alcoholism. Thomas was also treated in the
hospital’s Behavioral Care Unit for other alcohol-related complications. On Wednesday,
January 31, Thomas was discharged. The plan was that Thomas would travel
immediately to AP1, a facility in Indianapolis, to receive treatment for his alcoholism.
3
On the day he was discharged, Cathy drove Thomas to AP1. When they arrived
that evening, Thomas was upset to learn that he needed in-patient treatment. He became
uncooperative and walked out of AP1. Although the temperature was about eight
degrees, Thomas proclaimed he would walk from Indianapolis to his home in
Bloomington, a distance of approximately fifty miles.
AP1 called security officers at AP2, a nearby medical facility, and told them that
Thomas had left the facility against medical advice and was threatening to walk to
Bloomington. AP2’s security officers found Thomas walking along a nearby road and
stopped to speak to him. Cathy arrived and told the officers that Thomas had a history of
alcohol abuse and was supposed to be receiving in-patient treatment for his alcoholism at
AP1. Thomas refused to return to the facility and insisted he would walk home. AP2’s
security officers restrained Thomas and took him to AP2.
After Thomas arrived at AP2, a doctor completed an application for emergency
detention. In the application, the doctor noted that Thomas had a psychiatric disorder,
was an alcoholic, and posed a danger to himself because he was threatening to walk to
Bloomington. The doctor also indicated his belief that if Thomas was not restrained, he
would kill himself. Appellants’ Confidential App. p. 211-12. Thomas was admitted to
AP2 for treatment.
Other AP2 doctors and medical personnel evaluated Thomas. Every evaluation
indicated that Thomas was suffering from a number of alcohol-related complications.1
The evaluations were conflicting, however, as to Thomas’s suicide risk—an inpatient
1
Thomas was primarily diagnosed with liver disease with encephalopathy, suspected cirrhosis
and hepatomegaly, chronic alcohol dependence, suspected alcohol-withdrawal seizure, confusion,
hypertension, hypokalemia, and severe anemia. See Appellants’ Confidential App. p. 208.
4
suicide evaluation stated that Thomas had no suicidal ideation, but a daily flow sheet
noted that Thomas posed a moderate suicide risk. See Appellants’ Confidential App. p.
298, 301.
Thomas was released on Tuesday, February 5. He received additional treatment at
AP1 before returning to his home in Bloomington.
The Haggertys filed a proposed complaint for medical malpractice in 2010. AP1,
AP2, and AP3—a corporate entity related to AP2—were named as defendants in the
proposed complaint.2 The Haggertys also filed an action against the same parties in
Monroe Circuit Court. AP1 filed a motion for preliminary determination of law for
summary judgment. AP2 and AP3 likewise filed a joint motion for preliminary
determination for summary judgment. All three anonymous parties argued that they were
immune from liability under Indiana Code section 12-26-2-6, which grants immunity to
those who assist or participate in proceedings for an individual’s detention or
commitment.
The Haggertys filed a brief in opposition to the summary-judgment motions.3
They designated eleven exhibits as evidence. These exhibits included portions of
Thomas’s medical records, the application for emergency detention, and other medical
documents. The Haggertys did not designate any affidavits. Weeks later, the Haggertys
sought to amend their designated evidence to add affidavits of Thomas and Cathy, their
2
A health-care provider must be identified in a summons to effect service, but must
remain anonymous during the pendency of the medical review panel proceedings in a complaint filed in
state court. See Ind. Code § 34-18-8-7; Hubbard v. Columbia Women’s Hosp. of Indianapolis, 807
N.E.2d 45, 60, n.2 (Ind. Ct. App. 2004), reh’g denied.
3
Though properly captioned as motions for preliminary determination of law for summary
judgment, we refer to them as summary-judgment motions for simplicity.
5
amended proposed complaint, and three additional portions of Thomas’s medical records.
The anonymous parties objected to the Haggertys’ motion to amend their designated
evidence.
After hearing oral argument, the trial court issued an order on the pending
motions. See Appellants’ App. p. 133. The trial court granted the Haggertys’ motion to
amend their designated evidence. The court also concluded that it had jurisdiction to
preliminarily determine the issue of immunity. It determined that there was no genuine
issue of material fact that AP1 was immune and granted AP1’s summary-judgment
motion. Id. However, it concluded that there was a genuine issue of material fact
regarding AP2 and AP3’s immunity, so it denied summary judgment as to AP2 and AP3.
Id.
The Haggertys filed a motion to correct error, and AP2 and AP3 filed a motion to
reconsider. The trial court denied both motions. The Haggertys filed notice of appeal.
AP2 and AP3 later filed a belated motion requesting certification of the court’s order for
interlocutory appeal. AP2 and AP3 sought to join the Haggertys’ pending appeal against
AP1, which involved the same issues raised by AP2 and AP3 in their motion for
summary judgment. The trial court granted the belated motion for certification, and this
Court accepted jurisdiction over the combined appeal.
Discussion and Decision
I. Jurisdiction
The Haggertys first challenge the trial court’s authority to preliminarily determine
the issue of immunity.
6
A trial court’s jurisdiction to intervene in the workings of a medical review panel
through a motion for preliminary determination of law is governed by Indiana Code
section 34-18-11-1. In relevant part, the Section provides that:
(a) A court having jurisdiction over the subject matter and the parties to a
proposed complaint filed with the commissioner under this article may,
upon the filing of a copy of the proposed complaint and a written
motion under this chapter, do one (1) or both of the following:
(1) preliminarily determine an affirmative defense or issue of law or
fact that may be preliminarily determined under the Indiana
Rules of Procedure; or
(2) compel discovery in accordance with the Indiana Rules of
Procedure.
(b) The court has no jurisdiction to rule preliminarily upon any affirmative
defense or issue of law or fact reserved for written opinion by the
medical review panel under IC 34-18-10-22(b)(1), IC 34-18-10-
22(b)(2), and IC 34-18-10-22(b)(4).
In Griffith v. Jones, our Supreme Court consulted the Indiana Trial Rules and defined
trial courts’ jurisdiction in this context explicitly:
Our review of the rules reveals that Trial Rule 8(C) contains a listing of
affirmative defenses, Trial Rule 12(B) and (C) sets forth a listing of matters
which can be preliminarily determined by motion, and Trial Rules
26 through 37, inclusively, contain the discovery rules. We hold that
Indiana Code section 16-9.5-10-1 specifically limits the power of the trial
courts of this State to preliminarily determining affirmative defenses under
[the] Trial Rules, deciding issues of law or fact that may be preliminarily
determined under Trial Rule 12(D), and compelling discovery pursuant
to Trial Rules 26 through 37, inclusively.
602 N.E.2d 107, 110 (Ind. 1992) (emphasis added).4
4
Griffith references Indiana Code section 16-9.5-10-1, the predecessor statute to Section 34-18-
11-1.
7
Thus, under Griffith, trial courts may preliminarily determine affirmative defenses
in medical-malpractice cases. Indiana Trial Rule 8(C), which sets forth affirmative
defenses, does not specifically refer to immunity; it provides that “a responsive pleading
shall set forth affirmatively and carry the burden of proving: [list of defenses] and any
other matter constituting an avoidance, matter of abatement, or affirmative defense.” The
list of affirmative defenses found in the rule is not exhaustive. Willis v. Westerfield, 839
N.E.2d 1179, 1185 (Ind. 2006) (citing Paint Shuttle, Inc. v. Cont’l Cas. Co., 733 N.E.2d
513, 524 (Ind. Ct. App. 2000), trans. denied).
Whether a defense is affirmative “depends upon whether it controverts an element
of a plaintiff’s prima facie case or raises matters outside the scope of the prima facie
case.” Id. (citations omitted). An affirmative defense is a defense “upon which the
proponent bears the burden of proof and which, in effect, admits the essential allegations
of the complaint but asserts additional matter barring relief.” Id. In other words, it must
“admit the allegations of the complaint but nevertheless excuse fault.” Id. By asserting
immunity in this case, the anonymous parties admitted that they detained Thomas but
argued that their actions were nevertheless excused because Indiana Code section 12-26-
2-6 grants them immunity. We conclude that immunity is an affirmative defense, and for
this reason, the trial court had jurisdiction to rule on the issue.5 See Griffith, 602 N.E.2d
at 110.6
5
A search of Indiana cases reveals that our Courts have repeatedly referred to immunity as an
affirmative defense. See Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1, 2 (Ind. 2002) (“The
County filed its answer, which included the affirmative defense[] of statutory immunity . . . .”); State v.
Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992) (“As an affirmative defense, the State asserted immunity
from liability by virtue of [the Tort Claims Act].”); City of S. Bend v. Dollahan, 918 N.E.2d 343, 349
8
In reaching this conclusion, we reject the Haggertys’ argument that the issue of
immunity was reserved for the medical review panel. This Court has concluded that
some determinations—such as standard-of-care determinations and others that require an
expert opinion—are reserved for medical review panels; thus, trial courts may not rule on
those issues. See Miller v. Martig, 754 N.E.2d 41, 44 (Ind. Ct. App. 2001); Rocca v. S.
Hills Counseling Ctr., Inc., 671 N.E.2d 913, 915 (Ind. Ct. App. 1996) (citing Dixon v.
Siwy, 661 N.E.2d 600 (Ind. Ct. App. 1996)), reh’g denied. But the trial court did not
need an expert opinion to determine whether the anonymous parties could claim
immunity under Section 12-26-2-6; this is a legal determination that the court was
capable of making on its own.
We conclude that the trial court had jurisdiction to preliminary determine the issue
of immunity.
II. Certification
The Haggertys contend that the trial court erred by granting AP2 and AP3’s
motion for belated certification. The Haggertys also challenge this Court’s decision to
accept jurisdiction over AP2 and AP3’s interlocutory appeal.
A. Trial Court
We are not bound by a trial court’s determination on the issue of certification. In
re Buchanan v. Vowell, 926 N.E.2d 515, 518 (Ind. Ct. App. 2010) (citation omitted). We
will reverse the trial court’s decision only for an abuse of discretion, which exists when
(Ind. Ct. App. 2009) (“The school corporation had failed to assert the affirmative defense of governmental
immunity . . . .”), trans. denied.
6
We need not address the parties’ arguments regarding the applicability of Indiana Trial Rules
12(B) or 12(C) because we conclude that immunity is an affirmative defense under Trial Rule 8(C).
9
the trial court’s decision is clearly against the logic and effects of the facts and
circumstances before the court or the reasonable and probable deductions to be drawn
therefrom. Id. (citing Nw. Towing & Recovery v. State, 919 N.E.2d 601 (Ind. Ct. App.
2010)).
A motion requesting certification of an interlocutory order must be filed in the
trial court within thirty days of the interlocutory order. Appellate Rule 14(B)(1)(a). AP2
and AP3 filed a motion requesting certification 105 days after the interlocutory order was
issued. However, a trial court may permit a belated motion for good cause. Id. The
Haggertys contend that AP2 and AP3 did not show good cause justifying the belated
grant of certification.
There is a dearth of cases discussing good cause in this context. Buchanan, 926
N.E.2d at 518. Nonetheless, we cannot say that the trial court abused its discretion in this
case. AP2 and AP3 sought belated certification because the Haggertys appealed the trial
court’s grant of summary judgment to AP1. AP1’s summary-judgment motion was based
on its claim of immunity under Section 12-26-2-6. Thus, the issues in the Haggerty-AP1
appeal are the same as those raised in AP2 and AP3’s cross-appeal. Granting AP2 and
AP3’s belated motion for certification gave this Court the option to resolve, in one
appeal, the immunity claims raised by all three anonymous parties and refuted by the
Haggertys. We find no error here.
B. Court of Appeals
The Haggertys also challenge this Court’s decision to accept jurisdiction over AP2
and AP3’s interlocutory appeal. Essentially, the Haggertys ask this Court to reconsider
10
our motions panel’s decision. Though uncommon, this request is not entirely unheard of.
“[I]n rare instances reconsideration of motions to accept or oppose discretionary
interlocutory appeals may be appropriate, such as where a successive motion
demonstrates good cause why the motions panel’s initial ruling should be reconsidered.”
Bridgestone Ams. Holding, Inc. v. Mayberry, 854 N.E.2d 355, 360 (Ind. Ct. App.
2006), summarily aff'd in relevant part, 878 N.E.2d 189, 191 n.2 (Ind. 2007). Though we
have the inherent authority to reconsider any decision while an appeal remains pending,
we are reluctant to overrule our motions panel. Simon v. Simon, 957 N.E.2d 980, 987
(Ind. Ct. App. 2011). We may do so, however, where a more complete record reveals
clear authority establishing that our motions panel erred. Id. For example, in Simon, we
dismissed a discretionary interlocutory appeal when it became clear after briefing that the
appellant did not have standing to pursue the appeal. Id. at 989-90.
Here, the Haggertys do not explain how our motions panel clearly erred. They
argue that AP2 and AP3’s interlocutory appeal should not proceed because AP2 and AP3
had a dilatory motive. Appellants’ Br. p. 22. They also argue that the interlocutory
appeal prejudices them and the judicial process. Id. But they do not explain how
allowing the appeal to proceed prejudices them, particularly in light of the fact that AP2
and AP3 raise the same claims the Haggertys had to respond to in their appeal against
AP1. Nor do we see how the appeal prejudices the judicial system; as explained earlier,
allowing AP2 and AP3’s appeal to proceed gives this Court the option to decide, in one
appeal, the immunity claim raised by all three anonymous parties. And the Haggertys
11
offer no proof that the belated motion was motivated by bad faith rather than a simple
attempt to consolidate legal claims arising from Thomas’s detention.
For these reasons, we decline to overrule our motions panel’s decision to accept
jurisdiction over AP2 and AP3’s interlocutory appeal.
III. Motion to Amend Designated Evidence
AP2 and AP3 contend that the trial court erred when it granted the Haggertys’
motion to amend their designated evidence.
Indiana Trial Rule 56(C) provides that an adverse party shall have thirty days after
service of a summary-judgment motion to serve a response and any opposing affidavits.
When filing a response, Rule 56(C) requires the adverse party to designate to the court all
parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial
notice, and any other matters on which it relies for purposes of the motion. “A party
opposing the motion shall also designate to the court each material issue of fact which
that party asserts precludes entry of summary judgment and the evidence relevant
thereto.” Ind. Trial Rule 56(C).
Rule 56(E) provides that the trial court “may permit affidavits to be supplemented
or opposed by depositions, answers to interrogatories, or further affidavits.” AP2 and
AP3 argue that this Court recently interpreted Rule 56(E) as permitting only affidavits,
not other designated evidence, to be supplemented after the deadline for submission of
designated evidence. See Appellees’/Cross-Appellants’ Br. p. 19 (citing Auto-Owners
Ins. Co., 973 N.E.2d 1179 (Ind. Ct. App. 2012), trans. denied). But we need not reach
12
this issue; for the purposes of our analysis, we will assume that the trial court considered
all the evidence appropriately.
IV. Immunity
We now turn to the issue of immunity. The Haggertys argue that the trial court
erred by granting AP1’s summary-judgment motion. AP2 and AP3 argue that the trial
court erred when it denied their summary-judgment motion.
A motion for preliminary determination of law under Indiana Code section 34-18-
11-1, which is unique to the Indiana Malpractice Act, is a procedure that authorizes the
trial court to assert jurisdiction over threshold issues before a medical review panel has
acted. Hodge v. Johnson, 852 N.E.2d 650, 652 (Ind. Ct. App. 2006) (citation omitted),
trans. denied. When evidence accompanies a motion for preliminary determination, the
motion is subject to the same standard of appellate review as a summary-judgment
motion. Id. “Where the evidence shows that there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law, summary judgment is
appropriate.” Id. “We construe all facts and reasonable inferences drawn therefrom in a
light most favorable to the non-moving party.” Id. When a pure question of law is
presented, we review the matter de novo. Id. (citation omitted).7
A person who without malice, bad faith, or negligence participates in proceedings
for the detention or commitment of an individual or assists in the detention, care, and
treatment of an individual alleged or adjudged to have a mental illness is immune from
7
The Haggertys note that trial court did not issue findings with its order granting summary-
judgment as to AP1 and denying it as to AP2 and AP3. But “special findings are not required
in summary-judgment proceedings and are not binding on appeal.” Ind. Reg’l Recycling, Inc. v. Belmont
Indus., Inc., 957 N.E.2d 1279, 1282 (Ind. Ct. App. 2011), trans. denied.
13
any civil or criminal liability that might otherwise be imposed as a result of the person’s
actions. Ind. Code § 12-26-2-6(a). Such immunity does not, however, permit a person to
physically abuse an individual or deprive an individual of a personal or civil right except
in accordance with the commitment procedures. I.C. § 12-26-2-6(b).
At issue here is subsection (b); the Haggertys argue that the anonymous parties
cannot claim immunity because they deprived Thomas of his personal or civil rights.
Specifically, they claim that his personal or civil rights were violated because he was
“forcibly placed in a vehicle by [AP2] security staff, driven to [AP2], and placed in a
small bathroom for approximately four (4) hours before finally being admitted into
[AP2].” Appellants’ Br. p. 13. They also argue that Thomas’s rights were violated
because [AP2] allowed Thomas to be detained even though no one other than the doctor
who initially evaluated Thomas found him to be a suicide risk. Id. Although the
Haggertys assert these claims generally against all three anonymous parties, it is helpful
to address AP1 separately from AP2 and AP3.
A. AP1’s Immunity Claim
The Haggertys argue that Thomas’s personal or civil rights were violated when he
was detained and transported to AP2 and during his detention at AP2. Critically, none of
this involved AP1. AP1’s only involvement in Thomas’s detention was the phone call it
made to AP2 security officers to alert them that he had left the facility against medical
advice and was threatening to walk to Bloomington. Even if this can be considered
participation in Thomas’s detention, the Haggertys do not mention the phone call when
14
arguing that Thomas’s personal or civil rights were violated, much less argue
persuasively that it violated those rights.
As the party moving for summary judgment, AP1 bears the burden of establishing
that no genuine issue of material fact exists. Cole v. Gohmann, 727 N.E.2d 1111, 1113
(Ind. Ct. App. 2000). “Once the moving party has met this burden with a prima facie
showing, the burden shifts to the nonmoving party to establish that a genuine issue does
in fact exist.” Id. (citation omitted). AP1 made a prima facie showing that no genuine
issue of material fact exists as to its immunity; however, the Haggertys have not
established the contrary. We conclude that the trial court properly granted summary
judgment to AP1.
B. AP2 and AP3’s Immunity Claim
We first address the Haggertys’ claim that Thomas’s personal or civil rights were
violated when he was detained by AP2’s security officers and transported to AP2.
Indiana Code section 12-26-4-1 permits a law-enforcement officer, “having reasonable
grounds to believe that an individual has a mental illness, is either dangerous or gravely
disabled, and is in immediate need of hospitalization and treatment,” to “apprehend and
transport the individual to the nearest appropriate facility.”
Here, AP2’s security officers were alerted that Thomas had left AP1 against
medical advice. They found Thomas walking along a road, threatening to walk from
Indianapolis to Bloomington on a winter night in below-freezing temperatures. Thomas’s
wife, Cathy, told the officers that Thomas had a history of alcohol abuse and was
supposed to be receiving in-patient treatment for his alcoholism at AP1. Thomas refused
15
to return to the facility and insisted he would walk home. Based upon this, the security
officers apprehended him and transported him to AP2. Although the Haggertys argue
that “he was illegally restrained before he was detained [at AP2],” Appellants’ Br. p. 20-
21, Section 12-26-4-1 permits law-enforcement officers to do exactly what AP2’s
security officers did here.8
Next, the Haggertys claim that Thomas’s personal or civil rights were violated
when he was placed in a small bathroom for approximately four hours before being
admitted to AP2. The parties do not explain the circumstances surrounding Thomas’s
placement in a bathroom, other than noting that he left the bathroom at one point to talk
to Cathy. Assuming that this is true, as we must, the evidence shows that Thomas was
detained because he posed a threat to himself, and he was transported to the nearest
appropriate facility as required by Section 12-26-4-1. There is no dispute that AP2 is an
appropriate facility under the statute.
Finally, the Haggertys argue that Thomas’s personal or civil rights were violated
when he was detained at AP2 because no one other than the doctor who initially
evaluated Thomas found him to be a suicide risk. Id. at 13. This argument fails for two
reasons: first, the record shows that at least one other medical professional found Thomas
to be a moderate suicide risk. Second, and more importantly, Indiana Code section 12-
26-5-1 allowed AP2 to detain Thomas regardless of his suicide risk.
Section 12-26-5-1 provides that an individual may be detained in an appropriate
facility for not more than seventy-two hours, excluding Saturdays, Sundays, and legal
8
Although the Haggertys repeatedly note that force was used to restrain Thomas and take him
into custody, they do not argue that the force used was unreasonable.
16
holidays, if a written application for detention is filed with the facility. The application
must contain a statement of the applicant’s belief that the individual is “mentally ill and
either dangerous or gravely disabled” and “in need of immediate restraint,” as well as a
statement by at least one physician that, based on an examination or information given
the physician, the individual may be mentally ill and either dangerous or gravely
disabled. Ind. Code § 12-26-5-1(b). The section does not require that the individual be
suicidal.
In the application for emergency detention, the doctor examining Thomas noted
that Thomas had a psychiatric disorder, was an alcoholic, and posed a danger to himself
because he was threatening to walk home to Bloomington. The doctor also indicated his
belief that if Thomas was not restrained, he would kill himself. Appellants’ Confidential
App. p. 211-12. According to the plain language of Section 12-26-5-1, this was
sufficient. And the Haggertys do not argue that Thomas was not mentally ill and either
dangerous or gravely disabled and in need of immediate restraint; they merely debate his
suicide risk. We conclude that the Haggertys have not shown that Thomas was detained
improperly or in a way that violated his personal or civil rights.
As the parties moving for summary judgment, AP2 and AP3 have the burden of
establishing that no genuine issue of material facts exists. Cole, 727 N.E.2d at 1113.
“Once the moving party has met this burden with a prima facie showing, the burden shifts
to the nonmoving party to establish that a genuine issue does in fact exist.” Id. (citation
omitted). AP2 and AP3 made a prima facie showing that no genuine issue of material
fact exists as to their immunity; the Haggertys failed to establish the contrary. We
17
therefore conclude that the trial court should have granted AP2 and AP3’s summary-
judgment motion.
Because the anonymous parties met their burden of establishing that there are no
genuine issues of material fact as to their immunity in this case, we affirm the trial court’s
grant of summary judgment to AP1. We reverse the denial of AP2 and AP3’s summary-
judgment motion and we remand with instructions for the trial court to enter summary
judgment for AP2 and AP3.
Affirmed in part and reversed in part.
FRIEDLANDER, J., concurs.
BAKER, J., concurs in part and dissents in part with separate opinion.
18
IN THE
COURT OF APPEALS OF INDIANA
THOMAS HAGGERTY AND )
CATHY HAGGERTY, )
)
Appellants/Cross-Appellees, )
)
vs. ) No. 53A01-1210-CT-472
)
ANONYMOUS PARTY 1, )
)
Appellee, )
)
ANONYMOUS PARTY 2, AND )
ANONYMOUS PARTY 3, )
)
Appellee/Cross-Appellants )
BAKER, Judge, concurring in part and dissenting in part.
While I concur with the majority that the trial court properly granted summary
judgment as to AP1, I part ways with the majority’s conclusion that AP2 and AP3 met
their burden of establishing that there were no genuine issues of material fact with respect
to immunity. As stated by the majority, immunity does not permit a person to physically
abuse a person or deprive that person of a civil right except in accordance with
commitment procedures. Ind. Code § 12-26-2-6(b).
Here, the facts as alleged by the Haggertys place Thomas in a small bathroom for
approximately four hours before being admitted to AP2. The majority concedes that “the
parties do not explain the circumstances surrounding Thomas’s placement in a bathroom,
19
other than noting that he left at one point to talk to Cathy.” Slip op. at 16. In my view,
this creates a genuine issue of material fact sufficient to preclude summary judgment and,
consequently, immunity as to AP2 and AP3. Indeed, this incident is precisely the type of
issue that the medical review panel should assess to determine whether the actions of
AP2 were appropriate. Accordingly, I would have affirmed the trial court’s denial of
summary judgment.
20