MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 13 2017, 9:11 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E. Morgan Michael D. Head
Elise C.L. Bowling Reichel Stohry L.L.P.
Office of Corporation Counsel Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
City of Indianapolis, July 13, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1612-CT-2898
v. Appeal from the Marion Superior
Court
Rosalynn West, The Honorable Thomas J. Carroll,
Appellee-Plaintiff Judge
Trial Court Cause No.
49D06-0803-CT-10163
Mathias, Judge.
[1] The Marion Superior Court ruled that genuine issues of material fact existed as
to whether a police detective acted within the scope of her employment when
she forwarded an e-mail concerning the internal governance of her church to
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other church members using her work-issued computer and e-mail address
while on duty. From that ruling, her employer now takes this interlocutory
appeal, claiming it was entitled to judgment as a matter of law.
[2] We reverse.
Facts and Procedural Posture
[3] In October 2007, Rosalynn West (“West”), Betty Wadlington (“Wadlington”),
and Jeanette Larkins (“Larkins”) were all members of Mt. Olive Missionary
Baptist Church in Indianapolis, Indiana. West headed the church’s Christian
Education Committee and served on its Pastoral Search Committee.
[4] Wadlington thought West unsuited for those positions and sent a letter to the
church’s governing bodies urging them to remove her:
I hesitated to write this at first, and then something in my spirit
would not let it rest. I need to reveal this information to you, so
that, hopefully, you will make spirit-led decisions in this regard.
. . . It may or may not surprise you to know that Sis. West’s
behavior has been the subject of much discussion among the
membership lately, and everyone has the same opinion - SHE
NEEDS TO BE DEALT WITH!!!
This is a woman who is the head of Christian Education and on
the Pastoral Search Committee - yet her actions/words have been
anything but Christ-like. . . .
I used to be on the Christian Education Committee - I
respectfully stopped attending the meetings after I witnessed Sis.
West SCREAM at an elder member of our church who in no
way deserved such a level of disrespect. . . .
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Sis. West made it no secret that she “could not stand” [a former
interim pastor]. She provoked him in to the behavior he
displayed. . . . She had to know that if she “attacked” his child
and wife that he was going to respond - which was exactly what
she was hoping for. . . .
Removing Sis. West from chairmanship of the CHRISTIAN
Education Committee is a change that needs to be made.
Removing her from the pastoral search committee is a change
that needs to be made. . . .
You don’t need to respond to me and this memo - but you do
need to respond to the actions of Sis. West - and do it soon or I
believe our church will live to regret it.
Sincerely, . . . .
Appellant’s App. pp. 23-24 (sic passim). On Sunday, October 14, 2007,
Wadlington e-mailed a copy of her letter to Larkins and two other church
members so that “if [they] hear[d] about this situation again - [they’d] know
what’s going down.” Id. at 22.
[5] At the time, Larkins was a detective employed by the Indianapolis
Metropolitan Police Department (“IMPD”) and the City of Indianapolis (“the
City”) to investigate sex crimes, specifically sexual assault on victims at least
fourteen years old. With IMPD1 approval, she had also occasionally worked as
a part-time security guard for the church since 1996. Wadlington’s e-mail was
1
Before City and county law enforcement were consolidated in 2007, creating IMPD, Larkins was employed
in the same position by the now-defunct Marion County Sheriff’s Department. For the sake of simplicity, we
refer only to IMPD.
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sent to Larkins’s “indygov.org” e-mail address, a City-issued address for City
business, which Larkins could access only from her City-issued desktop
computer at her office. Larkins, therefore, did not receive Wadlington’s e-mail
until she went to work the next day, Monday, October 15, 2007. That evening,
Larkins read the e-mail and forwarded it without comment to eighty-eight
church members and one former member. None were City employees.
[6] In February 2008, West sued Larkins, Wadlington, and the City for defamation
and invasion of privacy. By early 2015, Larkins and Wadlington had declared
bankruptcy and were dismissed from the suit in February and March of that
year, respectively. The City as the sole remaining defendant moved for
summary judgment on April 19, 2016. The trial court denied the City’s motion
on October 26, 2016, without entering findings or conclusions. The trial court
certified its ruling for interlocutory appeal on November 28, 2016. We accepted
the appeal on January 27, 2017.
Standard of Review
[7] Summary judgment is appropriate where there are no genuine issues of material
fact and the movant is entitled to judgment as a matter of law. Ind. Trial Rule
56(C); Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). The
movant’s burden is to show that its designated evidence, with all conflicts,
doubts, and reasonable inferences resolved in the nonmovant’s favor,
affirmatively negates the nonmovant’s claim. Hughley v. State, 15 N.E.3d 1000,
1003 (Ind. 2014). The burden then shifts to the nonmovant to show an issue of
fact affecting the outcome of the case that requires resolution by the fact-finder.
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Id. We review the trial court’s ruling de novo as a question of law, taking care
that the nonmovant is not improperly denied her day in court. Id. We may
affirm denial of summary judgment on any theory or basis found in the
designated evidence. Chang v. Purdue Univ., 985 N.E.2d 35, 45 (Ind. Ct. App.
2013), trans. denied.
Discussion and Decision
[8] West seeks to hold the City vicariously liable for the torts of its employee
Larkins under the doctrine of respondeat superior. The City responds that
Larkins’s conduct in forwarding Wadlington’s e-mail was not done within the
scope of her employment with the City as a matter of law, and that it is
therefore entitled to judgment. West replies that whether Larkins was acting
within the scope of her employment is a question of fact for the jury. We agree
with the City.
I. The Law of Respondeat Superior and Scope of Employment
[9] Under the doctrine of respondeat superior, an employer may be held vicariously
liable for the wrongful acts of its employee done within the scope of her
employment. Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008). Generally, if the
employee’s act was authorized by the employer, “incidental to the conduct
authorized [by the employer,] or . . . to an appreciable extent[] further[ed] the
employer’s business[,]” it was done within the scope of employment. Id.
(citations omitted). If the act was instead part of “an independent course of
conduct not intended by the employee to serve any purpose of the employer[,]”
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it was outside the scope of employment. Id. at 284 (quotations and citation
omitted).
[10] However, many egregious or otherwise criminal acts, and many intentional
torts generally, can hardly be said to be “authorized” by an employer or to be
“intended . . . to serve [a] purpose of the employer.” Id. at 283-84. Nevertheless,
that fact is not, in itself, a defense to vicarious liability. Warner Trucking, Inc. v.
Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997) (drunk driving); Stropes
by Taylor v. Heritage House Childrens Cent., Inc., 547 N.E.2d 244 (Ind. 1989)
(sexual assault); Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind. Ct.
App. 2000) (child molesting), trans. denied; Gomez v. Adams, 462 N.E.2d 212
(Ind. Ct. App. 1984) (conversion). The employer is still liable for the natural
and predictable consequences of the conduct of its business by its agents.2
[11] For vicarious liability to attach in such cases, there must be “some minimal
nexus between the employee's work and the facts of the case.” Harrison Cnty.
2
Not to say foreseeable consequences. “[W]hat is reasonably foreseeable in this context of respondeat superior
is quite a different thing from the foreseeably unreasonable risk of harm that spells negligence. The foresight
that should impel the prudent man to take precautions is not the same measure as that by which he should
perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his own part.”
Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167, 171 (2d Cir. 1968) (Friendly, J.) (original alterations,
quotations omitted; emphasis added). The necessity of this latter foresight, and the imposition of liability on
the employer in such cases generally, flows not from traditional concepts of fault or efficient cost allocation,
but from “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for
accidents which may fairly be said to be characteristic of its activities.” Id. (emphasis added); see also Carr v. Wm.
C. Crowell Co., 171 P.2d 5, 7 (Cal. 1946) (Traynor, J.) (“The employer’s responsibility for the tortious conduct
of his employee extends far beyond his actual or possible control over the conduct of the servant. It rests on
the broader ground that every man who prefers to manage his affairs through others remains bound to so
manage them that third persons are not injured by any breach of legal duty on the part of such others[] . . . .”
(original quotations omitted)).
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Sherriff’s Dep’t v. Ayers, 70 N.E.3d 414, 418 (Ind. Ct. App. 2017), trans. denied.
“[T]he focus must be on how the employment relates to the context in which
the commission of the wrongful act arose,” Barnett, 889 N.E.2d at 285 (quoting
Stropes, 547 N.E.2d at 249), and on the degree to which the employee’s acts
were associated with her employment duties. Id. (discussing Stropes, 547 N.E.2d
at 250); Gomez, 464 N.E.2d at 223 (no vicarious liability for acts “outside the
line of [the servant’s] duty and not connected with his master’s business”). “The
critical inquiry is not whether an employee violates his employer’s rules[,]” but
whether the “employee’s act originated in activities so closely associated with
the employment relationship as to fall within its scope.” Warner Trucking, 686
N.E.2d at 105. If so, the act “further[s] [the] employer’s business” and may
subject the employer to vicarious liability. Barnett, 889 N.E.2d at 285
(discussing Stropes, 547 N.E.2d at 249-50).
[12] In this inquiry, we ask how closely the acts complained of resemble acts the
employee was employed to do, and whether the latter tend naturally or
predictably to “melt[]” or “ripen[]” into the former, City of Fort Wayne v. Moore,
706 N.E.2d 604, 608 (Ind. Ct. App. 1999), trans. denied, such that the employer
may properly be charged with the resulting injury as characteristic of
conducting its business through others. Where, for example, a children’s
baseball league engaged an equipment manager to “fit[] youths with baseball
uniforms behind locked doors in an equipment shed” as the “only adult
present” and to “assist the youths in dressing and undressing,” the manager’s
tortious acts of leering at and fondling the children closely resembled the acts of
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supervision and fitting he was engaged to perform, and under the circumstances
it was predictable that the latter will in some instances melt or ripen into the
former. Vaughan, 734 N.E. at 266, 271 (affirming denial of defendant’s motions
for summary judgment and for judgment on the evidence).3
[13] Importantly, especially in the case before us, whether an act was within the
scope of employment may be decided as a matter of law. In Konkle v. Henson,
672 N.E.2d 450 (Ind. Ct. App. 1996), we opined that,
[i]f some of the employee’s actions were authorized [but others
were unauthorized], the question of whether the unauthorized
acts were within the scope of employment is one for the jury.
However, if none of the employee’s acts were authorized, there is
no respondeat superior liability and summary judgment is proper.
Id. at 457 (citations omitted). Barnett rejected this rule because it improperly
focuses on the employer’s permission rather than on the association between
the employee’s wrongful acts and the acts the employee is employed to do, the
question at the heart of Stropes. See Barnett, 889 N.E.2d at 285. The question is
not whether an unauthorized act followed an authorized act or vice versa, but
3
Further, where a home for severely handicapped children employs a nurse’s aide to “minister to residents in
their beds, remove their clothing, and touch and handle their bodies,” the analysis and result are the same
with respect to the aide’s sexual assault of a fourteen-year-old resident lacking “the verbal or motor skills
necessary to perform . . . even the simplest tasks . . . .” Stropes, 547 N.E.2d at 245 (reversing grant of
defendant’s motion for summary judgment). They are the same again where a private security company
employs a guard to “request, receive[,] and retain personal identification while investigating disturbances or
in effecting arrests” and to “retain confiscated personal effects until they were turned over” to supervisors
with respect to the guard’s conversion of property seized from an arrestee. Gomez, 462 N.E.2d at 223
(remanding for trial on employer’s vicarious liability).
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whether a reasonable fact-finder could conclude that the “employee’s act
originated in activities so closely associated with the employment relationship
as to fall within its scope.” Warner Trucking, 686 N.E.2d at 105.
[14] Judgment for the employer as a matter of law is appropriate where “there is not
even a slight nexus” between the employee’s wrongful acts and her employment
duties. Ayers, 70 N.E.3d at 418. It has long been settled that mere use of the
employer’s facilities to commit a wrongful act, Louisville & Nashville R.R. Co. v.
Gillen, 166 Ind. 321, 76 N.E. 1058, 1059 (1906) (sustaining defendant’s
demurrer to complaint), cited in Gomez, 462 N.E.2d at 213, or mere access to a
victim afforded by employment, Eagle Mach. Co., Inc. v. Am. Dist. Tel. Co., 127
Ind. App. 403, 140 N.E.2d 756 (1957) (affirming directed verdict for
defendant), discussed in Gomez, 462 N.E.2d at 224-25, do not without more
present a sufficient nexus to merit decision by the fact-finder.
II. Larkins Did Not Act Within the Scope of Her Employment As a Matter of
Law
[15] In this case, it is undisputed that Larkins was not authorized by her employer to
send personal e-mails from her City e-mail address and City computer while on
duty, nor to commit defamation by such means. Appellant’s App. pp. 126, 128
(IMPD general order on employee computer use). However, that is not the end
of the inquiry. The question, rather, is whether a reasonable jury could find that
Larkins’s act of forwarding Wadlington’s e-mail was sufficiently associated
with the acts Larkins was employed to perform as a sex-crimes detective, such
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that the City may properly be charged with the resulting injury as characteristic
of employing sex-crimes detectives. We conclude it could not.
[16] The City’s designated evidence revealed that in October 2007, Larkins’s
employment duties were to investigate incidents of sexual assault on victims age
fourteen or older. Id. at 120. She would investigate cases as assigned by a
sergeant or as necessary when called into the field. Id. Cases would originate
from the reports of victims or uniformed officers at the scene, or from health
care professionals, school staff, or the Department of Child Services. Id. Larkins
worked from her office unless she was called into the field. Id. In the field,
Larkins would seek out and interview witnesses, seek out and interview victims,
canvass neighborhoods for information, and attempt to identify unknown
persons. Id. At her office, Larkins’s use of her City-issued computer was a
“crucial function” of her job. Id. at 122.
[17] Larkins’s act of forwarding Wadlington’s e-mail about West’s role in the
governance of their church did not appear to resemble or be associated in any
degree with any Larkins was employed to perform as an IMPD sex-crimes
detective in that it did not appear to be part of or incidental to an investigation
into sexual assault. Larkins understood the recipients of her e-mail all to belong
to a “women’s ministry” at the church, id. at 102, called “Women of Faith.” Id.
at 131. Larkins never showed Wadlington’s e-mail to anyone at her office or
discussed it with anyone there. Id. at 101. Nothing in Wadlington’s e-mail was
related to or suggested sexual assault on the part of any church member or
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against any church member. No church member was suggested to be under
investigation for sexual assault or a witness in a sexual-assault investigation.
[18] It is true that Larkins’s use of her City-issued computer and e-mail address was
central to the performance of her employment duties. However, the mere use of
her employer’s facilities did not bring her act within the scope of her
employment. See Doe v. Lafayette Sch. Corp., 846 N.E.2d 691, 702 (Ind. Ct. App.
2006) (use of employer’s computer and e-mail account), abrogated in nonrelevant
part by State Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008);4
Gomez, 462 N.E.2d at 213 (generally). The question is not whether the
employer’s facilities were used, but what the facilities were used for, and
whether such use was sufficiently associated with the employee’s ordinary
employment use. As the City suggests, “Modern offices could not function
without [e-mail]. [To hold] employers vicariously liable for every e-mail their
employees send from a work e-mail account — whether job-related or not —
would risk an avalanche of litigation against employers without” serving the
policies underlying vicarious liability. Appellant’s Br. at 14-15. We agree.
[19] The City’s designations sufficiently discharged its initial burden as a summary
judgment movant by showing that Larkins’s forwarding Wadlington’s e-mail
4
In Doe, we held a school teacher’s sex acts with a minor former student were not within the scope of
employment as a matter of law where the teacher solicited the student’s baby-sitting services by means of a
school-owned computer and school-issued e-mail address and then engaged in personal communication with
the student for over a year before doing the acts complained of, because such conduct was far removed from
the teacher’s employment duty to communicate with current students about school work. 846 N.E.2d at 702
(affirming grant of defendant’s motion for summary judgment).
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simply had nothing to do with her job as a sex-crimes detective. The burden
then shifted to West to show a genuine dispute of material fact precluding
judgment for the City. She did not.
[20] Below, West argued that Larkins’s part-time employment with the church as an
IMPD-authorized security guard brought her act within the scope of
employment with the City, and that it was genuinely disputed whether Larkins
still worked as a security guard for the church in October 2007. West has
abandoned this position on appeal, arguing instead that a genuine dispute
existed as to whether Larkin forwarded Wadlington’s e-mail “as a purely
personal act . . . or, at least in part, as a police officer (intending to warn the
recipients of [West’s] alleged criminal conduct so that they could be alert and
stay out of perceived danger) in furtherance of her oath to protect and serve.”
Appellee’s Br. at 9. By “alleged criminal conduct,” id., West means the
allegations in Wadlington’s e-mail that West “scream[ed]” at a church member
and “‘attacked’ [the] child and wife” of the church’s former interim pastor.
Appellant’s App. p. 23 (original scare quotes). Neither argument is sufficient to
resist summary judgment.
[21] As an initial matter, neither party, below or on appeal, presented cogent
argument as to whether the acts of an IMPD officer while moonlighting as a
private security guard may give rise to vicarious liability for the City. 5 We
5
The City dismisses this possibility in its opening brief on appeal in a footnote without citation. Appellant’s
Br. at 13 n.4; but see generally Farr v. Laidig Concrete, Inc., 810 N.E.2d 1104, 1106-07 (Ind. Ct. App. 2004), trans.
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therefore assume for summary judgment purposes that Larkins’s acts within the
scope of her employment as an IMPD-authorized church security guard could
give rise to such liability as a matter of law.
[22] We have held before that a law enforcement officer’s abstract duties to enforce
the law and protect the public — stated at the highest level of generality, outside
a concrete employment context, and unconnected to particular acts performed
in the course of employment — could not sustain vicarious liability for the
public employer. Ayers, 70 N.E.3d at 418 (reversing denial of defendant’s
motion to correct error after judgment on jury verdict where sheriff’s deputy
recklessly allowed spouse to commit suicide with deputy’s department-issued
firearm); see also Moore, 706 N.E.2d at 608 (reversing denial of defendant’s
motion for judgment on the evidence where police officer committed battery on
driver following traffic stop and it appeared officer not employed to “make
traffic stops outside the [c]ity’s corporate boundaries, out-of-uniform, or in
unmarked police car”). Thus, here, to the extent that Larkins’s forwarding
Wadlington’s e-mail was outside the scope of her particularized duties as a sex-
denied (discussing vicarious liability for borrowed servants); Johnson v. Motors Dispatch, Inc., 172 IndApp. 285,
360 N.E.2d 224, 292 (1977) (discussing vicarious liability for dual masters). Though no court of this state
appears recently to have confronted the question, this court has held before that an off-duty police officer
working for a private car auction acted within the scope of his public employment when chasing a car thief
from the auction. Gentry v. Hockett, 498 N.E.2d 405, 406 (Ind. Ct. App. 1986) (citing Sports, Inc. v. Gilbert, 431
N.E.2d 534, 539 (Ind. Ct. App. 1982) (“The employer does not ‘rent’ the state’s police power . . . .”); Tapp v.
State, 406 N.E.2d 296, 302 (Ind. Ct. App. 1980) (“[I]t is the nature of the acts performed [that controls] . . .
.”)). Courts of our sister states have reached opposite conclusions. Compare, e.g., White v. Revco Disc. Drug
Ctrs., Inc., 33 S.W.3d 713 (Tenn. 2000) (vicarious liability may lie for public employer) with Melendez v. City of
Los Angeles, 73 Cal. Rptr. 2d 469 (Cal. Ct. App. 1998) (no vicarious liability will lie for public employer). It is
clear at least that the City would not be entitled to summary judgment on these grounds without further
factual development and argument.
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crimes detective as discussed above, West cannot resist summary judgment by
resorting to IMPD’s generalized interest in public safety or Larkins’s purported
generalized duty to warn the public of any and every instance of “alleged
criminal conduct . . . .” Appellee’s Br. at 9.
[23] Nor can West successfully rely on Larkins’s duties as a part-time security guard
for the church. West’s own designations reveal that Larkins’s duties as such
were to protect “the security of the church” by patrolling the church parking lot
to prevent car break-ins and by guarding the collections after church services
until deposited by a church official. Appellant’s App. p. 166. In this capacity,
Larkins worked Sundays and Wednesdays. Id. at 165. Larkins stated, without
contradiction by other evidence, that she never worked for the church while on
duty with IMPD. Id. at 166.
[24] Nothing in Wadlington’s e-mail had any connection with Larkins’s duties as a
church security guard. West’s designations reveal that Larkins’s duties were to
protect church property and church members’ property during church services,
not continuously to keep the peace between church members, warn church
members of another member’s potentially or arguably hostile conduct, or
initiate investigations into such conduct. Nothing in West’s designations
suggests that Larkins was expected to or did perform any work for the church
outside the church on days other than Sundays and Wednesdays, or while she
was at her office and on-duty with IMPD.
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[25] West essentially seeks a trial on Larkins’s intent or motivation at the time she
forwarded Wadlington’s e-mail. Our supreme court has questioned the
relevance of an employee’s purely subjective motivation in such cases. See
Stropes, 547 N.E.2d at 249 (quoting with approval Marston v. Minneapolis Clinic of
Psychiatry, 329 N.W.2d 306, 311 (Minn. 1982) (“[T]he employee’s motivation
should not be a consideration[.]”)). Even assuming an employee’s motivation
could furnish freestanding grounds for trial in the absence of any nexus or
association of the employee’s acts with the employee’s duties, there is simply no
evidence or rational inference that Larkins had the motivation ascribed to her
by West: “to warn the recipients [of Larkins’s e-mail] of [West’s] alleged
criminal conduct so that they could be alert and stay out of perceived danger[]
in furtherance of her oath to protect and serve.” Appellant’s Br. at 9.
[26] There is no reasonable inference that Wadlington’s allegation that West
“scream[ed]” at a church member was an allegation of criminal conduct.
Appellant’s App. p. 23. Also, Larkins never witnessed West “screaming” at
anyone. Id. at 167. Nor had Larkins witnessed West “attacking” the former
interim pastor’s child and wife. Id. at 169. The latter allegation “was just one of
those things that was buzzing around the church.” Id. It is thus difficult to infer
on Larkins’s part a need or motivation to warn the church membership of an
incident she thought was already widely known. Larkins never tried to look
into the allegations more closely or to find out more details. Id. at 170. Larkins
never spoke with anyone about the allegations or undertook to discover
whether they were true. Id. at 171. In fact, “[Larkins] didn’t undertake
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anything. People would send [her] e-mails in reference to the church . . . ,
whether it was encouraging people or relating things that were going on at the
church[,] and [Larkins] forwarded the e-mails to the group[,]” id., the women’s
ministry at the church called “Women of Faith.” Id. at 131. This casualness,
incuriosity, and total lack of urgency on Larkins’s part with respect to the
incidents described in Wadlington’s e-mail give rise to no reasonable inference
that Larkins was motivated by a desire “to warn the recipients [of Larkins’s e-
mail] of [West’s] alleged criminal conduct so that they could be alert and stay
out of perceived danger[] in furtherance of her oath to protect and serve.”
Appellant’s Br. at 9.
Conclusion
[27] The City was entitled to judgment as a matter of law because no reasonable jury
could conclude that Larkins’s forwarding Wadlington’s e-mail was sufficiently
associated with Larkins’s employment duties as a sex-crimes detective to come
within the scope of her employment with the City. The trial court therefore
erred in denying the City’s April 19, 2016, motion for summary judgment. We
reverse that denial and remand with instructions to grant the City’s motion.
[28] Reversed and remanded for proceedings consistent with this opinion.
Kirsch, J., and Altice, J., concur.
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