Kailee M. Smith and Jeffrey S. McQuary v. State of Indiana

FILED
Apr 25 2019, 5:45 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Jeffrey S. McQuary Curtis T. Hill, Jr.
Brown Tompkins Lory Attorney General of Indiana
Indianapolis, Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Kailee M. Smith and Jeffrey S. April 25, 2019
McQuary, Court of Appeals Case No.
Appellant-Plaintiffs, 18A-MI-1593
Appeal from the Marion Superior
v. Court
The Honorable Heather A. Welch,
State of Indiana, Judge
Appellee-Plaintiff Trial Court Cause No.
49D01-1706-MI-23427

May, Judge.

Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 1 of 23
[1] Kailee M. Smith 1 and Jeffrey S. McQuary (collectively, “Appellants”) appeal

the trial court’s grant of summary judgment in favor of the State on an

indemnification claim Kailee and McQuary filed against the State

(“Indemnification Claim”). Appellants present three issues for our

consideration, which we restate as:

1. Whether the trial court erred when it found the dismissal of
Kailee’s state law action in Hancock County (“State Claim”)
resulted in collateral estoppel that prohibited Appellants from
arguing Officer Scott Johnson was acting within the scope of his
employment as a DNR Conservation Officer when he took the
actions alleged herein;

2. Whether the trial court erred when it found Appellants did not
designate sufficient evidence to demonstrate Officer Johnson
acted within his scope of employment during the relevant events;
and

3. Whether the trial court erred when it concluded there were
not issues of material fact regarding whether Officer Johnson’s
actions were not noncriminal.

We reverse and remand.

1
Kailee is also referenced as “Kailee Leonard” in portions of the record, as that is her married name, and
“Kailee Smith” in other portions of the record. We will refer to her as “Kailee” to avoid confusion.

Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 2 of 23
 Facts and Procedural History 2

[2] On December 18, 2012, Kailee struck and killed Johnson’s dog. Kailee stopped

her car, examined the damage, determined the dog was dead, and drove to her

fiancé’s house nearby. Kailee and her fiancé drove back to Johnson’s house,

knocked on his door, and told Johnson what happened. Kailee called police to

report the accident. Police responded a few hours later, investigated, and wrote

a report on the incident.

[3] Sometime in February 2013, Johnson visited the office of the Hancock County

Prosecutor, which he regularly visited in the course of his duties as a

Conservation Officer for the Department of Natural Resources of Indiana. He

visited the office in uniform. At that time, Johnson spoke to the Chief Deputy

Prosecutor of Hancock County, Tammi Phillips, and told her that Kailee had

struck and killed his dog. He then indicated he thought Kailee might have

committed Class B misdemeanor failure to stop after an accident causing

property damages other than to a vehicle. Phillips told Johnson to speak with

Stephen Banks, an investigator with the Hancock County Prosecutor’s Office,

to prepare a probable cause affidavit.

[4] On June 28, 2013, the Hancock County Prosecutor’s Office charged Kailee

with Class B misdemeanor failure to stop after an accident causing property

2
We held oral argument on March 1, 2019, at the ISBA Women’s Bench Bar Retreat in Culver Cove,
Indiana. We thank counsel for their excellent advocacy.

Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 3 of 23
 damage other than to a vehicle. The charges were dismissed on May 29, 2014,

after Johnson admitted in a deposition that Kailee had informed him of the

incident on the night of the accident.

[5] On October 15, 2014, Kailee filed a tort claim under Indiana law (“State

Claim”) in Hancock County Circuit Court, in which she alleged, under Indiana

law:

18. Johnson’s actions in procuring [Kailee’s] prosecution
constitute false arrest and malicious prosecution, negligence and
intentional infliction of emotional distress under Indiana law.

19. The State of Indiana was negligent in its supervision of
Johnson by permitting him to use his police authority to
prosecute a groundless case.

20. The State of Indiana is liable for Johnson’s acts and
omissions under the principle of respondeat superior.

(Appellee’s App. Vol. II at 77.) Kailee alleged that “[w]hen procuring the

prosecution of [Kailee,] Johnson acted within the scope of his employment by

the Indiana Department of Natural Resources.” (Id.)

[6] On October 16, 2014, Kailee filed a §1983 claim in the U.S. District Court in

the Southern District of Indiana (“Federal Claim”) alleging, “Johnson’s actions

in procuring [Kailee’s] prosecution constitute false arrest and malicious

prosecution in violation of the Fourth Amendment.” (Id. at 96.) Unlike in the

State Claim, Kailee did not allege in the Federal Claim that Johnson acted

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 within the course of his employment; instead she alleged, “When procuring the

prosecution of [Kailee,] Johnson acted under the color of Indiana law.” (Id.)

[7] On December 10, 2014, the State filed a motion to dismiss the State Claim,

asserting the claim was barred by the Indiana Tort Claims Act and the State

could not be held liable under the doctrine of respondeat superior for Officer

Johnson’s actions because “Johnson was reporting the incident as a victim of a

crime and not as a law enforcement officer.” (Appellee’s App. Vol. II at 86.) In

addition, the State argued that even if Officer Johnson’s actions were taken

within the scope of his employment, “All of [Kailee’s] alleged damages result

from the initiation of a judicial proceeding – that is, a criminal proceeding

pertaining to a citation for leaving the scene of an accident.” (Id.) Therefore,

the State claimed, because Johnson gave a verbal statement to prompt the

investigation but did not participate in the investigation, he, and thus the State,

could not be held liable for the damages Kailee alleged. (Id.) The trial court

granted the State’s motion to dismiss Kailee’s State Claim with prejudice the

same day. (Id. at 90.)

[8] The State initially entered an appearance on Officer Johnson’s behalf in the

Federal Claim. However, on March 12, 2015, the State withdrew that

representation because “Mr. Johnson has consistently stated that he was acting

as a private citizen at the time he spoke with the investigator at the prosecutor’s

office, and after investigation of the facts, the Attorney General’s office has

found no evidence to show otherwise.” (Id. at 99.) Thus, “the Attorney

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 General [was] precluded by law from representing him.” (Id.) The District

Court granted the State’s motion to withdraw.

[9] On May 11, 2015, Officer Johnson filed a pro se motion to dismiss the Federal

Claim because Kailee’s claims involved her rights under the United States

Constitution and “Johnson was never in a position during the course of Steve

Banks[’], Hancock County Prosecutor[’]s investigator, investigation other than

that of a private citizen providing a verbal statement.” (Id. at 116.) In addition,

Officer Johnson noted the dismissal of Kailee’s State Claim in support of his

motion to dismiss the Federal Claim. The District Court did not rule on Officer

Johnson’s motion.

[10] On June 29, 2015, private counsel entered an appearance in District Court on

Officer Johnson’s behalf. On August 27, 2015, Officer Johnson, via counsel,

filed another motion to dismiss. The District Court denied Officer Johnson’s

August 27 motion to dismiss on December 14, 2015. On September 27, 2016,

Officer Johnson’s private counsel filed a motion to withdraw, and Officer

Johnson filed a motion requesting appointment of counsel. Two days later, the

District Court denied both motions as moot.

[11] On November 29, 2016, the parties filed a joint stipulation of facts. The District

Court held a jury trial on December 13, 2016. The jury returned a verdict in

Kailee’s favor, awarding her $10,000.00 in damages. The District Court

subsequently awarded Kailee an additional $422.00 in costs and $52,040.00 in

attorney’s fees. Over the next few months, the parties attempted to work out a

Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 6 of 23
 payment agreement, and they discussed Officer Johnson filing an

indemnification claim against the State for the payment of the judgment. In

May 2017, Appellants drafted a contract by which Officer Johnson assigned his

right to file an indemnification action against the State to Appellants as partial

payment for the judgment against him in the Federal Claim. Officer Johnson

signed the agreement in May, and Appellants signed it in August 2017.

[12] On June 13, 2017, 3 Appellants filed a complaint for damages and declaratory

judgment (“Indemnification Claim”), the ruling on which is the subject of this

appeal. In the complaint, Appellants gave a brief history of the Federal Claim

and indicated Officer Johnson had assigned his indemnification rights to

Appellants. Appellants asserted:

17. The State of Indiana is required to pay the judgment, costs,
and attorneys[’] fees assessed against Johnson pursuant to Ind.
Code § 34-13-4-1.

18. The Court should declare the rights of McQuary, [Kailee],
and the State of Indiana regarding Johnson’s right to
indemnification.

(Id. at 5.)

3
The Chronological Case Summary provided in the record is a print out of the public MyCase docket, which
contains this caveat at the top of the first page: “This is not the official court record. Official records of court
proceeding may only be obtained directly from the court maintaining a particular record.” (Appellants’ App.
Vol. II at 2.)

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[13] On July 31, 2017, the State filed an answer and asserted nine affirmative

defenses, including: (1) the Indemnification Claim was barred by res judicata and

issue preclusion based on the earlier dismissal of the State Claim; (2) Officer

Johnson’s assignment of his indemnification rights was faulty for a variety of

reasons; and (3) the Indemnification Claim was barred by the Indiana Tort

Claims Act. (Id. at 8-9.) On October 27, 2017, Appellants filed a motion for

summary judgment, asserting there were no issues of material fact, Officer

Johnson was acting within the scope of his employment when he falsely

reported the alleged crime to the Hancock County’s Prosecutor’s Office, the

District Court had found Officer Johnson violated Kailee’s Fourth Amendment

rights, and the State was required to indemnify Officer Johnson. Appellants

also contended the doctrine of res judicata premised on the dismissal of the State

Claim did not apply because Kailee did not have an opportunity to fully litigate

the issues in that case and finding res judicata would be unfair under the

circumstances.

[14] On December 6, 2017, the trial court granted Appellants’ motion for summary

judgment. On December 7, 2017, the parties filed a joint motion for relief from

the December 6 order, as the parties agreed the State had not been given an

opportunity to respond to the Appellants’ motion for summary judgment and,

thus, the decision was premature. The parties asked the court to instead set

deadlines for the parties based on a case management plan jointly agreed upon.

The trial court granted that joint motion the same day.

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[15] On January 2, 2018, the State filed its response to Appellants’ motion for

summary judgment in conjunction with the State’s cross-motion for summary

judgment. In its cross-motion for summary judgment, the State argued there

existed issues of material fact and Appellants’ Indemnification Claim was

barred by “claim preclusion/collateral estoppel” based on the dismissal of the

State Claim. (Id. at 71-2.) Appellants filed their response on January 26, and

the State filed a reply on February 12.

[16] On May 1, 2018, the trial court held a hearing on the competing motions for

summary judgment. On June 12, 2018, the trial court issued an order granting

the State’s motion for summary judgment, denying Appellants’ motion for

summary judgment, and dismissing the Indemnification Claim with prejudice.

The trial court concluded, in relevant part:

35. Here, the State Claim, which alleged that Johnson was
acting within the scope of his employment, was dismissed.
[Kailee] never filed a Motion to Correct Error, sought direct
appeal of the dismissal or otherwise sought post-judgment relief
from the Hancock County Circuit Court’s order.

36. [Appellants] had a full and fair opportunity to litigate the
State Claim, chose not to act on the dismissal, and instead, opted
to proceed with the Federal Claim.

*****

40. Moreover, [Appellants] are collaterally estopped from
asserting that Johnson was acting within the scope of his

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 employment because the issue had been expressly adjudicated in
favor of the State in the State Claim.

41. The State of Indiana is entitled to judgment as a matter of
law.

(Id. at 15-6.)

Discussion and Decision
[17] Our standard of review for summary judgment is well-established:

We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to
“demonstrate the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his

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 day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Therefore, for the trial court

to properly grant summary judgment, the movants must have “made a prima

facie showing that their designated evidence negated an element of the

nonmovants’ claims, and, in response, the nonmovants must have failed to

designate evidence to establish a genuine issue of material fact.” Cox v.

Mayerstein-Burnell Co., Inc., 19 N.E.3d 799, 804 (Ind. Ct. App. 2014). We will

affirm a trial court’s decision on summary judgment if it is sustainable on any

theory or basis found in the evidentiary matter designated to the trial court.

United Rural Elec. Membership Corp. v. Ind. Mich. Power Co., 648 N.E.2d 1194,

1196 (Ind. Ct. App. 1995), trans. denied. Additionally,

[o]ur summary judgment policies aim to protect a party’s day in
court. While federal practice permits the moving party to show
merely that the party carrying the burden of proof lacks evidence
on a necessary element, we impose a more onerous burden—to
affirmatively negate an opponent’s claim. That permits summary
judgment to “be precluded by as little as a non-movant’s ‘mere
designation of a self-serving affidavit.’” Summary judgment is
not a summary trial, and it is not appropriate just because the
non-movant appears unlikely to prevail at trial. We “consciously
err[ ] on the side of letting marginal cases proceed to trial on the
merits, rather than risk short-circuiting meritorious claims.”

Devereux v. DiBenedetto, 45 N.E.3d 842, 845 (Ind. 2015) (internal citations

omitted).

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[18] The case before us involves a claim against the State for the payment of

compensatory damages, costs, and attorney’s fees awarded to Appellants under

the Federal Claim by virtue of Johnson’s assignment of his right to

indemnification under Indiana Code section 34-13-4-1, which states, in relevant

part:

If a present or former public employee, including a member of a
board, a committee, a commission, an authority, or another
instrumentality of a governmental entity, is or could be subject to
personal civil liability for a loss occurring because of a
noncriminal act or omission within the scope of the public
employee’s employment which violates the civil rights laws of the
United States, the governmental entity (when the governmental
entity defends or has the opportunity to defend the public
employee) shall [. . .] pay:

(1) any judgment (other than for punitive damages) of the claim
or suit; or

(2) any judgment for punitive damages, compromise, or
settlement of the claim or suit if:

(A) the governor, in the case of a claim or suit against a
state employee; or

(B) the governing body of the political subdivision, in the
case of a claim or suit against an employee of a political
subdivision;

determines that paying the judgment for punitive damages,
compromise, or settlement is in the best interest of the
governmental entity. The governmental entity shall also pay all

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 costs and fees incurred by or on behalf of a public employee in
defense of the claim or suit.

[19] Appellants contend summary judgment in favor of the State is not appropriate

because Officer Johnson was acting within the scope of his employment when

he gave the information to the Hancock County Prosecutor that resulted in

Kailee’s false arrest. In addition, Appellants assert the trial court erred when it

determined Officer Johnson’s actions were “not noncriminal[,]” (Appellants’

App. Vol. II at 16), because neither party designated evidence regarding that

issue from which the trial court could rule on summary judgment. However,

the State maintains the arguments made by Appellants in the Indemnification

Claim are barred by the doctrine of collateral estoppel based on the dismissal of

the State Claim.

Collateral Estoppel
[20] As we explained in 2444 Acquisitions, LLC v. Fish, 84 N.E.3d 1211 (Ind. Ct. App.

2017), “collateral estoppel bars the subsequent litigation of a fact or issue that

was necessarily adjudicated in a former lawsuit if the same fact or issue is

presented in the subsequent lawsuit.” Id. at 1216.

There are three requirements for the doctrine of collateral
estoppel to apply: (1) a final judgment on the merits in a court of
competent jurisdiction; (2) identity of the issues; and (3) the party
to be estopped was a party or the privity [sic] of a party in the
prior action.

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 Nat’l Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012)

(internal citations omitted) (quoting Small v. Centocor, Inc., 731 N.E.2d 22, 28

(Ind. Ct. App. 2000), reh’g denied, trans. denied), reh’g denied, cert. denied 569 U.S.

1018 (2013). The State argues Appellants are collaterally estopped from

asserting that Johnson was acting within the scope of his employment when he

violated Kailee’s Fourth Amendment right while acting under the color of state

law because the question of whether he was acting within the scope of his

employment was decided when the trial court dismissed Kailee’s State Claim.

Initial Requirements of Collateral Estoppel

[21] Regarding the first requirement, that there be a final judgment on the merits by

a court of competent jurisdiction, the State notes there is no dispute that the

Hancock Circuit court is a court of competent jurisdiction. The State contends

the dismissal order is a final judgment on the merits based on Indiana Trial

Rule 41(B), which states, in relevant part, “Unless the court in its order for

dismissal otherwise specifies, a dismissal under this subdivision or subdivision

(e) of this rule and any dismissal not provided for in this rule, other than

dismissal for lack of jurisdiction, operates as an adjudication upon the merits.”

[22] Regarding the second requirement, that there be an identity of issues, the State

directs us to the claims made in the State Claim and the Indemnification Claim.

In her State Claim, Kailee alleged: “When procuring the prosecution of

[Kailee,] Johnson acted within the scope of his employment by the Indiana

Department of Natural Resources.” (Appellants’ App. Vol. II at 30.) In its

motion to dismiss the State Claim, the State argued, in part, “Johnson’s acts
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 cannot be interpreted to be in the scope of his employment[.]” (Id. at 41.) In

the Indemnification Claim, Appellants alleged: “At the time of Johnson’s

conversation with officials at the Prosecutor’s Office, he was on duty, in

uniform, and performing the ordinary functions of his job as a Conservation

Officer.” (Appellee’s App. Vol II at 3.)

[23] Regarding the third requirement, that the parties to the two actions be the same

parties or privies, the State maintains it is undisputed the parties involved in

both claims are the same, or, in the case of McQuary, in privity with a party in

both actions. McQuary is in privity with Kailee because he represented her in

the State Claim. See Small v. Centocor, Inc., 731 N.E.2d 22, 28 (Ind. Ct. App.

2000) (privity “includes those who control an action, though not a party to it,

and those whose interests are represented by the party to the action”), reh’g

denied, trans. denied.

Additional Requirements of Collateral Estoppel

[24] To determine if a party’s claim is barred by collateral estoppel, we also consider

“whether the party against whom the judgment is pled had a full and fair

opportunity to litigate the issue, and whether it would be otherwise unfair under

the circumstances to permit the use of collateral estoppel.” Nat’l Wine & Spirits,

976 N.E.2d at 704 (quoting Small, 731 N.E.2d at 28). Appellants argue that

because the trial court’s order on dismissal of the State Claim does not have

findings, it is unclear which issues were decided, and thus the State has not met

the threshold for collateral estoppel. In 2444 Acquisitions, we held:

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 Where collateral estoppel is applicable, the former adjudication
will be conclusive in the subsequent action even if the two actions
are on different claims. However, the former adjudication will
only be conclusive as to those issues that were actually litigated
and determined therein. Collateral estoppel does not extend to
matters that were not expressly adjudicated and can be inferred
only by argument.

2444 Acquisitions, 84 N.E.3d at 1216 (internal citations omitted).

[25] Kailee’s State Claim asserted multiple issues. The State requested dismissal

under the Indiana Tort Claims Act and because Johnson had not been acting

within the scope of his employment. The trial court dismissed the State Claim

in an order that contained no findings or conclusions. Thus, the issue of

whether Officer Johnson was acting within the scope of his employment was

not expressly adjudicated in the State Claim.

[26] Further, it would be unfair to preclude Appellants from arguing Officer

Johnson was acting within the scope of his employment when he told the

Hancock County Prosecutor that Kailee had left the scene of an accident,

because that was not adjudicated as part of the Federal Claim. See Robinett v.

City of Indianapolis, 894 F.3d 876, 881-2 (7th Cir. 2018) (explaining the

difference between a federal claim of acting “under color of state law” and a

state claim of acting “within the scope of employment”). Therefore, the trial

court’s findings and conclusion regarding the issue of collateral estoppel were in

error.

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 Scope of Employment
[27] Appellants argue the trial court erred when it determined they had not created a

genuine issue of material fact regarding whether Officer Johnson was acting

within the scope of his employment during the relevant incident because, under

Indiana Code section 34-13-4-1, Officer Johnson must have been doing so for

the State to be required to indemnify Officer Johnson, and by assignment, the

Appellants. In the Indemnification Claim, the trial court found:

37. None of the designated materials raised a genuine issue of
material fact as to whether Johnson was acting within the scope
of his employment as a Conservation Officer. At best,
[Appellants] have provided evidence that he was acting under the
color of law as was determined in the federal claim.

(Appellants’ App. Vol. II at 16.)

[28] Appellants note they designated an affidavit from Officer Johnson in which he

indicated he was “on duty, in uniform, conducting State business, and

performing duties that were an ordinary part of [his] employment as a

Conservation Officer.” (Id. at 25.) Additionally, they direct us to the joint

stipulation of facts from the Federal Claim in which Appellants and Officer

Johnson agreed:

12. In February 2013, Johnson visited the office of the Hancock
County Prosecutor.

13. Johnson was at the time of the accident, and is today,
employed by the Indiana Department of Natural Resources as a
Conservation Officer.
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 14. Johnson regularly visits the Hancock County Prosecutor’s
office in the course of his duties as a Conservation Officer.

15. Sometime in February 2013 while Johnson was performing
his duties at the Prosecutor’s Office, Johnson spoke to Tammi
Phillips, the Chief Deputy Prosecutor, and told her about
[Kailee] striking and killing [the dog].

(Id. at 23.)

[29] In Cox v. Evansville Police Department, 107 N.E.3d 453 (Ind. 2018), our Indiana

Supreme Court outlined the framework of the scope-of-employment rule:

The scope-of-employment rule emanates from the concept of
control. Stropes [ex rel. Taylor v. Heritage House Children’s Ctr. of
Shelbyville, Inc., 547 N.E.2d 244, 252 (Ind. 1989), reh’g denied]; see
Dickson v. Waldron, 135 Ind. 507, 516-20, 34 N.E. 506, 509-10
(1893)[, reh’g denied]. More specifically, it springs from the
employer’s control over its employees and their employment
activities: the employer controls whom it hires, what
employment duties it assigns, how it empowers employees to
carry out those duties, and how it guards against harm arising
from employment activities. See Barnett [v. Clark, 889 N.E.2d
281, 284-5 (Ind. 2008)]; Stropes, 547 N.E.2d at 249-50; Dickson,
135 Ind. at 516-19, 34 N.E. at 509; City of Indianapolis v. West, 81
N.E.3d 1069, 1072-73 (Ind. Ct. App. 2017).

Although scope-of-employment liability is rooted in this control,
it extends beyond actual or possible control, holding employers
responsible for some risks inherent in the employment context.
See Dickson, 135 Ind. at 518, 34 N.E. at 509-10; West, 81 N.E.3d
at 1072-73; Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107-08 (Ind. Ct.
App. 2014), trans. denied. Ultimately, the scope of employment
encompasses the activities that the employer delegates to

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 employees or authorizes employees to do, plus employees’ acts
that naturally or predictably arise from those activities. See
Stropes, 547 N.E.2d at 250; Dickson, 135 Ind. at 518, 34 N.E. at
509; West, 81 N.E.3d at 1072-73; cf. Tippecanoe Beverages, Inc. v.
S.A. El Aguila Brewing Co., 833 F.2d 633, 638 (7th Cir. 1987)
(applying Indiana law).

This means that the scope of employment - which determines
whether the employer is liable - may include acts that the
employer expressly forbids; that violate the employer’s rules,
orders, or instructions; that the employee commits for self-
gratification or self-benefit; that breach a sacred professional
duty; or that are egregious, malicious, or criminal. See, e.g.,
Warner Trucking, Inc. v. Carolina Cas. Ins., 686 N.E.2d 102, 105
(Ind. 1997) (trucker’s drunk driving); Stropes, 547 N.E.2d at 245,
249 (nurse aide’s sexual assault of resident); Walgreen, 21 N.E.3d
at 103, 109 (pharmacist’s breach of privacy for prescription
records); Southport Little League v. Vaughan, 734 N.E.2d 261, 266-
67, 270 (Ind. Ct. App. 2000) (equipment manager’s molestation
of youths), trans. denied; Gomez v. Adams, 462 N.E.2d 212, 224-25
(Ind. Ct. App. 1984) (security officer’s conversion of arrestee’s
check-cashing card).

The scope of employment extends beyond authorized acts for
two key reasons. First, it is equitable to hold people responsible
for some harms arising from activities that benefit them. See
Dickson, 135 Ind. at 518, 34 N.E. at 510. When employees carry
out assigned duties, those employment activities “further the
employer’s business” to an appreciable extent, benefiting the
employer. Barnett, 889 N.E.2d at 283; see also West, 81 N.E.3d at
1072. But delegating employment activities also carries an
inherent risk that those activities will naturally or predictably give
rise to injurious conduct. See Stropes, 547 N.E.2d at 249-50;
Dickson, 135 Ind. at 517-18, 34 N.E. at 509; West, 81 N.E.3d at
1072-73. When that happens, the employer is justly held
accountable since the risk accompanies the employer’s benefit.
Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 19 of 23
 See West, 81 N.E.3d at 1072 n.2; Stump v. Ind. Equip. Co., 601
N.E.2d 398, 403 (Ind. Ct. App. 1992), [reh’g denied,] trans. denied.

Second, holding employers liable for those injurious acts helps
prevent recurrence. See Dickson, 135 Ind. at 518, 34 N.E. at 509;
accord West ex rel. Norris v. Waymire, 114 F.3d 646, 649 (7th Cir.
1997)[, cert. denied 522 U.S. 932 (1997)]; Tippecanoe Beverages, 833
F.2d at 638. Employers can take measures - like selecting
employees carefully and instituting procedures that lessen
employment dangers - to reduce the likelihood of tortious
conduct. See Dickson, 135 Ind. at 518, 34 N.E. at 509-10; accord
Waymire, 114 F.3d at 649; Tippecanoe Beverages, 833 F.2d at 638.
Since employers have some control over the risk of injurious
conduct flowing from employment activities, imposing liability
on employers for that conduct encourages them to take
preventive action. See Dickson, 135 Ind. at 518, 34 N.E. at 509;
accord Waymire, 114 F.3d at 649; Tippecanoe Beverages, 833 F.2d at
638; Mary M. [v. City of Los Angeles], 285 Cal.Rptr. 99, 814 P.2d
[1342,] 1343 (1991).

To be clear, the focus in determining the scope of employment
“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). When tortious acts
are so closely associated with the employment that they arise
naturally or predictably from the activities an employee was
hired or authorized to do, they are within the scope of
employment, making the employer liable. West, 81 N.E.3d at
1072-73. But tortious acts are not within the scope of
employment when they flow from a course of conduct that is
independent of activities that serve the employer. Barnett, 889
N.E.2d at 283-84.

Id. at 461-2.

Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 20 of 23
[30] Appellants assert: “[Appellants’] designations indicate that Johnson was

furthering the State’s business by reporting to a prosecutor what he believed to

be a crime, something that was a normal part of his job duties.” (Br. of

Appellant at 13.) The State contends that while Johnson was in a place

wherein he would normally exercise duties within the scope of his employment

and in his uniform,

[t]he evidence supports that Johnson was not acting to further the
State’s interest when he falsely reported that [Kailee] had left the
scene of the accident. Instead, Johnson was acting on his own
behalf when he falsely reported the accident to prosecutors. This
is not among his job responsibilities as a conversation [sic] officer
for the Indiana Department of Natural Resources.

(Br. of Appellee at 23.) Based thereon, we conclude there exists a genuine issue

of material fact regarding whether Officer Johnson’s action of telling the

Hancock County Prosecutor that Kailee left the scene of an accident was within

the scope of Officer Johnson’s employment and thus summary judgment was

improper. See Cox, 107 N.E.3d at 461-2 (explaining that a person may be acting

in the scope of his employment even if he engages in tortious conduct); Cf.

Mayerstein-Burnell Co., Inc., 19 N.E.3d at 804 (summary judgment appropriate

when movants “made a prima facie showing that their designated evidence

negated an element of the nonmovants’ claims, and, in response, the

nonmovants must have failed to designate evidence to establish a genuine issue

of material fact”).

Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 21 of 23
 Conclusion Johnson’s Act was Not Noncriminal
[31] To qualify for indemnification from the State under Indiana Code section 34-

13-4-1, Johnson’s act had to be noncriminal. In its order on the

Indemnification Claim, the trial court found and concluded:

38. None of the designated materials raised a genuine issue of
material fact as to whether Johnson committed a noncriminal act
resulting in a loss to [Kailee].

39. Accordingly, Johnson is not entitled to indemnification by
the State under Ind. Code § 34-13-4-1 as his actions were not
noncriminal acts nor were they within the scope of his
employment.

(Appellants’ App. Vol. II at 16.) Appellants argue this finding and conclusion

are in error because neither party raised the issue nor did either party designate

evidence regarding the issue. Appellants note they stated in their memorandum

in support of their motion for summary judgment that Johnson’s “violation was

non-criminal[,]” (Appellee’s App. Vol. II at 19), and that the State did not

respond to that assertion. We agree.

[32] Indiana Trial Rule 56(c) directs the trial court to make a decision regarding

summary judgment “from the evidentiary matter designated to the court.” The

Rule dictates: “The judgment sought shall be rendered forthwith if the

designated evidentiary matter shows that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” T.R. 56. In the case before us, neither party designated evidence

Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 22 of 23
 regarding whether Officer Johnson’s actions were noncriminal, and therefore

the trial court’s grant of summary judgment in favor of the State on this issue

was in error.

Conclusion
[33] The trial court erred when it granted summary judgment in favor of the State

because (1) collateral estoppel did not apply; (2) there existed a genuine issue of

material fact whether Officer Johnson was acting within the scope of his

employment at the time of his actions; and (3) the court could not decide

summary judgment regarding whether Officer Johnson’s acts were noncriminal

because neither party had designated evidence on that issue. Accordingly, we

reverse and remand for proceedings consistent with this opinion.

[34] Reversed and remanded.

Riley, J. concurs in result without opinion.

Robb, J. concurs.

Court of Appeals of Indiana | Opinion 18A-MI-1593 | April 25, 2019 Page 23 of 23