State of Indiana, Indiana Department of Environmental Management, Indiana State Department of Health v. Cristobal Alvarez, C.A. by next friend Cristobal Alvarez

FILED
Jun 10 2020, 11:02 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Natalie F. Weiss Eric S. Pavlack
Deputy Attorney General Colin E. Flora
Indianapolis, Indiana Pavlack Law, LLC
Frances Barrow Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

State of Indiana, Indiana June 10, 2020
Department of Environmental Court of Appeals Case No.
Management, Indiana State 19A-CT-587
Department of Health, et al., Appeal from the Lake Superior
Appellants-Defendants, Court
The Honorable Nanette K.
v. Raduenz, Special Judge
Trial Court Cause No.
Cristobal Alvarez, C.A. by next 45D05-1803-CT-3
friend Cristobal Alvarez, et. al.,
Appellees-Plaintiffs

May, Judge.

Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020 Page 1 of 20
[1] The State of Indiana, the Indiana Department of Environmental Management

(“IDEM”), and the Indiana State Department of Health (“ISDH”) (collectively,

“State Defendants”) appeal the trial court’s order denying their motion for

judgment on the pleadings. State Defendants raise four issues for our review,

which we restate as the following three issues:

i. Whether the Indiana Tort Claims Act immunizes the State

Defendants;

ii. Whether Plaintiffs’ claims are barred by the statute of limitations; and

iii. Whether Plaintiffs pled facts sufficient to state a claim for intentional

infliction of emotional distress.

We affirm.

Facts and Procedural History 1

[2] In the late-1960s, the City of East Chicago decided to build a large-scale public

housing complex that became the West Calumet Housing Complex

(“Complex”). The City built the Complex in an industrial area. The land was

formerly occupied by the Anaconda Lead Products Company and surrounded

by other lead smelting operations. Carrie Gosch Elementary School, which the

1
Given the procedural posture of this case, our recitation of the facts assumes all facts pled in the complaint
are true. See Murray v. City of Lawrenceburg, 925 N.E.2d 728, 729 (Ind. 2010).

Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020 Page 2 of 20
 City built in 1958 on land formerly occupied by U.S. Smelter and Lead

Refinery, Inc., was located near the Complex. In the late 1990s, the City

constructed a new building for Carrie Gosch Elementary on land behind the site

of the original building.

[3] In 1985, IDEM found lead contaminated soil near the Complex, and ISDH

learned that children who lived at the Complex had high levels of lead in their

blood. ISDH and IDEM performed further testing and sampling in 1997,

which also revealed lead contaminated soil around the Complex and elevated

levels of lead in the blood of children living in the Complex. However, none of

the State Defendants notified the residents of the Complex or the parents of

students at Carrie Gosch Elementary of the elevated lead levels.

[4] In 1985, the Environmental Protection Agency (“EPA”) began testing the land

on which the Complex and Carrie Gosch Elementary were built and addressing

contamination. In 1993, the EPA entered into an administrative order of

consent with U.S. Smelter and Lead Refinery, Inc, designating the area as a

Superfund site 2 in need of environmental remediation. On September 3, 2014,

the United States and the State of Indiana filed a complaint against the Atlantic

Richfield Company (“Richfield”) and the E.I. Du Pont De Nemours and

2
The Hazardous Substance Superfund is a trust fund established to carry out the purposes of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). 26
U.S.C. § 9507. The purpose of CERCLA is to hold polluters responsible for the problems caused by their
disposal of hazardous chemicals and make the polluters “bear the costs and responsibility for remedying the
harmful conditions they created.” In re: Tutu Water Wells CERCLA Litigation, 326 F.3d 201, 206 (3rd Cir.
2003), cert. denied, 540 U.S. 984 (2003).

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 Company (“Du Pont”), two entities that either operated or were successors in

interest to companies that operated on or around the land where the Complex

was built. The government filed a proposed consent decree on the same day it

filed the lawsuit. On or about October 28, 2014, the EPA reached a $26 million

settlement with the companies to provide cleanup costs.

[5] On July 6, 2016, the EPA sent a flyer to Complex residents notifying them that

high levels of lead had been found in yards in the Complex. On July 25, 2016,

East Chicago Mayor Anthony Copeland sent a letter to residents of the

Complex advising them that the land was contaminated with lead. The letter

directed residents to move as soon as possible. On December 4, 2017, Cristobal

Alvarez and over three hundred other former residents of the Complex

(“Plaintiffs”) filed suit against the City of East Chicago, the East Chicago

Housing Authority, the East Chicago Department of Public and Environmental

Health, and the School City of East Chicago (collectively, “City Defendants”),

and the State Defendants. Count III of the complaint alleges negligence. 3 It

states the State Defendants and the East Chicago Department of Public &

Environmental Health “owed a duty of reasonable care to the Plaintiffs,

including without limitation the duty to warn the Plaintiffs of known risks to

their health that had the potential to cause serious, life-altering injuries.” (App.

Vol. III at 73.) Further, Count III alleges:

3
Counts I and II do not contain any allegations against State Defendants.

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 112. These Defendants each knew that the soil and air in and
around the Complex and Carrie Gosch Elementary School were
contaminated with dangerous levels of lead, arsenic, and/or
other hazardous substances.

*****

119. These Defendants took no action to inform the Plaintiffs or
otherwise to safeguard them from the dangerous condition.

120. Each Defendant actually knew or should have known that
lead and other hazardous particles have the potential to cause
serious harm to the Plaintiffs.

121. As a direct and proximate result of each Defendant’s
breaches of its duties, Plaintiffs have suffered and continue to
suffer financial, physical, mental, and emotional damages.

(Id. at 74-75.) Count IV alleges the State Defendants committed intentional

infliction of emotional distress. Count V alleges negligent infliction of

emotional distress.

[6] On July 9, 2018, State Defendants filed a motion for judgment on the pleadings.

State Defendants argued that they were immune from suit pursuant to the

Indiana Tort Claims Act (“ITCA”), that Plaintiffs’ suit was barred by the

statute of limitations, and that the Plaintiffs failed to state a claim for

intentional infliction of emotional distress. The trial court held a hearing on

State Defendants’ motion and denied the motion. The trial court certified the

order for interlocutory appeal, and we accepted jurisdiction on April 12, 2019.

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 Discussion and Decision
[7] Our review of a judgment on the pleadings is de novo. Loomis v. Ameritech Corp.,

764 N.E.2d 658, 661 (Ind. Ct. App. 2002), reh’g denied, trans. denied. Such a

motion “tests the sufficiency of the complaint to state a redressable claim” and

should be granted “only when it is clear from the pleadings that the non-moving

party cannot in any way succeed under the facts and allegations therein.” Circle

Centre Dev. Co. v. Y/G Indiana, L.P., 762 N.E.2d 176, 178 (Ind. Ct. App. 2002),

trans. denied. We look solely to the pleadings and accept all well-pleaded facts

as true. Id. The moving party is deemed to have admitted those facts in favor

of the non-moving party and we will draw all reasonable inferences in the non-

moving party’s favor. Id. “When the pleadings present no material issues of

fact and the facts shown by the pleadings clearly entitle a party to judgment, the

entry of judgment on the pleadings is appropriate.” Book v. Hester, 695 N.E.2d

597, 599 (Ind. Ct. App. 1998).

1. Indiana Tort Claim Act
A. Discretionary Function Immunity

[8] In 1974, the Indiana General Assembly passed the ITCA, which “granted

absolute immunity to governmental entities in a number of specific

circumstances, and codified rules of liability for other areas of governmental

activity.” Gary Cmty. Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224, 1227 (Ind.

2009). The ITCA immunities are listed in Indiana Code section 34-13-3-3,

including an immunity for the performance of discretionary functions. Ind.

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 Code § 34-13-3-3(7) (“A governmental entity or an employee acting within the

scope of the employee’s employment is not liable if a loss results from the

following: . . .The performance of a discretionary function[.]”).

[9] The Indiana Supreme Court has adopted a planning-operational test to

determine if an act qualifies as a discretionary function under the ITCA. Jurich

v. Ind. Dep’t. of Transp., 126 N.E.3d 846, 856 (Ind. Ct. App. 2019).

Planning functions involve the formulation of basic policy
characterized by official judgment, discretion, weighing of
alternatives, and public policy choices. On the other hand,
operational functions involve the execution or implementation of
already formulated policy.

Lee by & through Estes v. Bartholomew Consol. Sch. Corp., 75 N.E.3d 518, 526 (Ind.

Ct. App. 2017) (internal quotation marks and citations omitted). Planning

functions are discretionary and shielded from liability under the ITCA. Id.

However, operational functions are not shielded from liability. Id.

[10] Whether an act is discretionary is a question of law. City of Beech Grove v. Beloat,

50 N.E.3d 135, 138 (Ind. 2016). The governmental entity claiming discretionary

function immunity bears the burden of demonstrating an act was a planning

function as opposed to an operational function. Id. The planning-operational

“test is designed to ‘insulate [ ] only those significant policy and political

decisions which cannot be assessed by customary tort standards.’” Id. (quoting

Peavler v. Bd. of Comm’rs of Monroe Cty., 528 N.E.2d 40, 45 (Ind. 1988)).

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[11] State Defendants argue the decision of when and how to warn citizens of

possible lead exposure is a discretionary function. The State Defendants note

that unlike the placement of traffic signals, which the government is statutorily

required to perform pursuant to Indiana Code section 9-21-4-1, there is not a

statutory duty “to notify citizens about exposure to toxic waste[.]” (Appellants’

Br. at 18.) While there is not an Indiana case determining whether warning

citizens about exposure to hazardous chemicals is a discretionary function

under the ITCA, State Defendants direct us to a decision interpreting a similar

provision of the Federal Tort Claims Act (“FTCA”).

[12] In Cisco v. United States, the Seventh Circuit analyzed whether an action brought

by homeowners against the EPA regarding the EPA’s alleged failure to warn

the homeowners that contaminated dirt had been used as residential landfill

was barred by the discretionary function exception to the FTCA. 768 F.2d 788,

788 (7th Cir. 1985). The Seventh Circuit held:

In deciding not to warn Cisco about the contaminated landfill
and in deciding not to remove the contaminated dirt from the
landfill, the EPA made political, social and economic judgments
pursuant to its grant of authority. Cisco may not challenge those
judgments under the FTCA because they fall within the
discretionary function exception of 28 U.S.C. § 2680.

Id. at 789-90. State Defendants contend that like the EPA’s actions in Cisco, the

State Defendants’ decision not to warn residents about high lead levels in the

soil was a discretionary function because it required the State Defendants to

make political, social, and economic judgments.

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[13] However, federal courts do not apply the planning-operational test in evaluating

discretionary function immunity under the FTCA. See Childers v. United States,

841 F. Supp. 1001, 1019 (D. Mont. 1993) (noting the United States Supreme

Court’s rejection of the planning-operational test), judgment aff’d, 40 F.3d 973

(9th Cir. 1995), cert. denied, 514 U.S. 1095 (1995). In addition, the FTCA is

interpreted more broadly in favor of immunity than the ITCA. Compare Robb v.

United States, 80 F.3d 884, 887 (4th Cir. 1996) (“The FTCA, as a waiver of

sovereign immunity, is strictly construed, and all ambiguities are resolved in

favor of the sovereign.”), with Beloat, 50 N.E.3d at 138 (“Moreover, this Court

has cautioned that discretionary immunity must be narrowly construed because

it is an exception to the general rule of liability.” (internal quotation marks

omitted)). Under the ITCA, the governmental entity bears the burden of

demonstrating the applicability of discretionary function immunity. Beloat, 50

N.E.3d at 138. Whereas under the FTCA, the plaintiff bears the burden of

proving the government entity’s conduct does not fall within the discretionary

function immunity. Pieper v. United States, 713 Fed. Appx. 137, 139 (4th Cir.

2017). Therefore, we are not persuaded by the State Defendants’ analogy to the

FTCA.

[14] State Defendants also argue “the nature of State Defendants’ conduct, the effect

on governmental operations and the capacity of the court to evaluate the

propriety of the government’s action shows that the alleged failure to warn

Plaintiffs of the contamination is a discretionary function.” (Appellants’ Br. at

23.) State Defendants contend the decision to warn the public about

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 contamination involves weighing budget concerns and assessing priorities.

State Defendants maintain that, if they are overaggressive in warning about

environmental dangers, it could “cause havoc[.]” (Id. at 25.) However, the

complaint does not allege any conscious balancing of risks and benefits by the

State Defendants; nor does it allege the State Defendants engaged in a decision-

making process. Rather, the complaint alleges negligent passivity. (See App.

Vol. III at 74 (“These Defendants took no action to inform the Plaintiffs or

otherwise to safeguard them from the dangerous condition.”).)

[15] Discretionary function immunity does not protect a governmental entity from

liability “when no policy-oriented decision-making process has been

undertaken.” Boyland v. Hedge, 58 N.E.3d 928, 934 (Ind. Ct. App. 2016).

Therefore, we cannot say as a matter of law, based solely on the pleadings, that

warning citizens of possible lead exposure is a planning function. The trial

court did not err in denying State Defendants’ motion for judgment on the

pleadings regarding discretionary function immunity. See Birge v. Town of

Linden, 57 N.E.3d 839, 845 (Ind. Ct. App. 2016) (holding town not entitled to

dismissal based on discretionary function immunity under the ITCA).

B. Vicarious Liability Immunity

[16] The ITCA also grants governmental entities immunity for acts or omissions “of

anyone other than the governmental entity or the governmental entity’s

employee.” Ind. Code § 34-13-3-3(10). State Defendants argue they cannot be

held liable where the duty to notify the Plaintiffs of the presence of toxic

chemicals in the soil fell to the City Defendants. However, the complaint
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 alleges both the City Defendants and the State Defendants were aware that

Complex residents and students at Carrie Gosch Elementary were being

exposed to toxic substances, yet none of the defendants warned the Plaintiffs or

took steps to reduce exposure. Even though the complaint alleges tortious

conduct by both the State Defendants and the City Defendants, the Plaintiffs

allege the State Defendants are liable for their own actions. Therefore, the State

Defendants are not entitled to judgment on the pleadings on the ground of

vicarious liability immunity. See Gary Cmty. Sch. Corp. v. Boyd, 890 N.E.2d 794,

801 (Ind. Ct. App. 2008) (holding school corporation not immune because the

complaint alleged negligence on the part of the school corporation not a third

party), trans. denied.

2. Statute of Limitations
A. Under Statute

[17] The State Defendants argue that 109 of the 315 plaintiffs (those who turned 18

years old before December 4, 2015) are barred from filing this lawsuit. Indiana

Code section 34-11-2-4 provides that a personal injury action must be

commenced within two years of when the cause of action accrues. “Under the

discovery rule, a cause of action accrues and the statute of limitations begins to

run when the plaintiff knew or, in the exercise of ordinary diligence, could have

discovered that an injury had been sustained as a result of the tortious act of

another.” DiMaggio v. Rosario, 52 N.E.3d 896, 905 (Ind. Ct. App. 2016), reh’g

denied, trans. denied. “For a cause of action to accrue, it is not necessary that the

full extent of the damage be known or even ascertainable but only that some

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 ascertainable damage has occurred.” Doe v. United Methodist Church, 673

N.E.2d 839, 842 (Ind. Ct. App. 1996), trans. denied. Statutes of limitation “are

practical and pragmatic devices to spare the courts from litigation of stale

claims, and the citizen from being put to his defense after memories have faded,

witnesses have died or disappeared, and evidence has been lost.” Perryman v.

Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006).

[18] State Defendants argue Complex residents knew or should have known about

elevated lead levels and exposure more than two years before the Plaintiffs

sued.4 State Defendants contend that the designation of the area as a Superfund

site should have alerted the Plaintiffs to contamination and possible exposure to

toxic substances. We will dismiss a complaint at the pleading stage as barred

by the statute of limitations only if the complaint states facts that, on their face,

indicate the complaint was filed after the statute of limitations period expired.

Chenore v. Plantz, 56 N.E.3d 123, 126 (Ind. Ct. App. 2016). However, when the

complaint states facts indicating the plaintiffs may prevail on a claim

notwithstanding the statute of limitations, the question of when the plaintiffs

4
In their reply brief, the State Defendants ask us to rely on the truth of certain statements made in the
consent decree and attachments to the decree entered in United States v. Atlantic Richfield Co., 2:14-cv-312
(N.D. Ind. 2014). The Plaintiffs have moved to strike these portions of the State Defendants’ reply brief.
However, our inquiry is focused on whether the complaint states any set of facts under which the Plaintiffs
could succeed. See Columbus Specialty Surgery Ctr. v. Se. Indiana Health Org., Inc., 22 N.E.3d 665, 669 (Ind. Ct.
App. 2014) (“the motion for judgment on the pleadings should be granted only where it is clear from the face
of the complaint that under no circumstances could relief be granted”). The State Defendants’ citations to
facts stated in the consent decree are not relevant to this inquiry. Therefore, we do not rely upon the facts
stated in the consent decree and cited in the State Defendants’ reply brief to resolve this appeal, and by
separate order, we deny the Plaintiffs’ motion to strike as moot. See Holland v. Ind. Farm Bureau Ins., 110
N.E.3d 369, 371 n.2 (Ind. Ct. App. 2018) (denying motion to strike as moot due to the disposition of the
appeal).

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 discovered or should have discovered their harm becomes a factual dispute and

the claims should not be dismissed. Id. For a claim to accrue, the plaintiff must

be “informed of a reasonable possibility, if not a probability that an injury was

sustained as a result of the tortious act of another[.]” Reed v. City of Evansville,

956 N.E.2d 684, 691 (Ind. Ct. App. 2011) (internal quotation marks omitted),

trans. denied. Further, “a person’s mere suspicion or speculation as to causation

of an injury is insufficient to trigger accrual.” Id. (internal quotation marks

omitted).

[19] Plaintiffs maintain that they did not realize there was a reasonable probability

of harm until Mayor Copeland sent the July 2016 letter advising the Complex

residents to move. In their complaint, the Plaintiffs state:

71. Prior to the letter, each Plaintiff did not know that he or she
had been exposed to hazardous levels of lead or other toxins at
the Complex.

72. Prior to the letter, each Plaintiff did not know that he or she
had been injured by his or her exposure to hazardous levels of
lead or other toxins at the Complex.

*****

77. As the July 6, 2016 EPA flyer acknowledged, “Lead is a
naturally occurring heavy metal. It is commonly found at low
levels in soil. Low levels of lead can be found in the air, water,
food and dust in cities because of the widespread use of lead in
man-made products. The federal government regulates the
amount of lead in the air, water and soil. The levels of lead at the

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 West Calumet Housing Complex are much higher than normal
levels because of past industrial operations at the property.”

78. The mere knowledge of lead in the soil meant nothing absent
an understanding that the levels were dangerous to human health
and wellbeing.

(App. Vol. III at 68-69.) Therefore, the complaint alleges the Plaintiffs did not

recognize that living at the Complex was dangerous because of the high level of

lead contamination until July 2016.

[20] In Rolan v. Atlantic Richfield Co., residents of the West Calumet Housing

Complex filed suit against Richfield and Du Pont. No. 1:16-CV-357-TLS, 2017

WL 3191791, at *1 (N.D. Ind. July 26, 2017). One of the defendants moved to

dismiss the suit on the ground that it was barred by the statute of limitations. Id.

at *11. However, the district court denied the company’s motion. Id. at *12.

The court stated, “Although the Plaintiffs knew as early as 2012 that the

Defendants’ conduct was the reason for the clean-up, they did not know or

have reason to suspect that the Defendants’ conduct had harmed them in any

tangible way.” Id. According to the allegations in the Rolan complaint, the

summer of 2016 was the first time a government entity advised the Complex

residents to relocate. Id. The court further stated that determining whether the

plaintiffs knew or should have known that their claims accrued more than two

years prior to filing suit is a “factually intensive endeavor” inappropriate for a

motion to dismiss. Id.

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[21] State Defendants attempt to distinguish Rolan by arguing the Plaintiffs in the

case at bar did not have to understand the full extent of their harm for their

claim to accrue. However, the EPA flyer quoted in the present complaint notes

a low level of lead exposure is unavoidable and not cause for alarm. Therefore,

we hold the facts stated in the complaint do not demonstrate it is untimely. See

Chenore, 56 N.E.3d at 126 (holding complaint should not be dismissed pursuant

to Trial Rule 12(B)(6) because Plaintiff alleged facts that statute of limitations

period was equitably tolled).

B. Issue Preclusion

[22] State Defendants also contend the doctrine of issue preclusion prohibits the 109

plaintiffs from suing because Complex residents attempted to intervene in

United States v. Atlantic Richfield Company, but their motion to intervene was

denied. 324 F.R.D. 187, 2018 WL 798188 (N.D. Ind. 2018).

The doctrine of res judicata prevents the repetitious litigation of
that which is essentially the same dispute. The principle of res
judicata is divided into two branches: claim preclusion and issue
preclusion. Claim preclusion applies where a final judgment on
the merits has been rendered which acts as a complete bar to a
subsequent action on the same issue or claim between those
parties and their privies.

French v. French, 821 N.E.2d 891, 896 (Ind. Ct. App. 2005) (internal citations

omitted), reh’g denied.

[23] Similarly, issue preclusion, also known as collateral estoppel, “bars the

subsequent litigation of a fact or issue that was necessarily adjudicated in a

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 former lawsuit if the same fact or issue is presented in [a] subsequent lawsuit.”

Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 696 (Ind. Ct. App. 2013), trans.

denied. However, the “former adjudication is conclusive only as to those issues

that were actually litigated and determined therein. Thus, issue preclusion does

not extend to matters that were not expressly adjudicated and can be inferred

only by argument.” Id. (internal citation omitted). We consider the following

factors in deciding whether issue preclusion should apply: “(1) privity, (2) the

defendant’s incentive to litigate the prior action, and (3) the ability of the

plaintiff to have joined the prior action.” Id.

[24] In United States v. Atlantic Richfield Company, the United States and the State of

Indiana filed a complaint in federal court in 2014 against Richfield and Du

Pont, and the governments filed a proposed consent decree on the same day.

324 F.R.D. at 190. After a hearing in the fall of 2014, the court approved the

consent decree, entered judgment, and closed the case. Id. On November 1,

2016, Complex residents filed a motion to intervene because of the lack of

progress made by the EPA in cleaning up the area. Id. The court noted that the

residents filed suit more than two years after the lawsuit against the two

companies had been closed. Id. at 192. Further, the residents were put on

notice that their rights might be impaired as a result of the lawsuit because the

EPA mailed notices to Complex residents before filing suit, held public

meetings, and filed documents regarding contamination of the Complex in

court. Id. Also, the court noted that the original litigating parties in the lawsuit

would be prejudiced if the court allowed the residents to intervene and that

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 allowing the residents to intervene would be impractical. Id. at 193. Therefore,

the court denied the Complex residents’ motion to intervene. Id. at 195.

[25] We note the considerations in determining whether to allow intervention in a

federal lawsuit are different from those determining whether the statute of

limitations bars suit. In deciding whether to allow intervention pursuant to

Federal Rule of Civil Procedure 24(a), the court considers whether:

(1) the application is timely; (2) the applicants have an interest
relating to the property or transaction that is the subject of the
action; (3) the disposition of the action may impair or impede the
applicants’ ability to protect that interest; and (4) no existing
party adequately represents the applicant’s interest.

Id. at 191. Thus, intervention in a federal lawsuit requires a more complex

balancing of factors than determining whether suit is barred by a statute of

limitations, which simply involves determining when the plaintiff knew or

should have known about the harm. See id. (Whether to allow intervention is

not “a binary inquiry. Instead . . . it involves digesting various bits of

information and arriving at a reasonable conclusion[.]”) Consequently, the

statute of limitations issue was not “expressly adjudicated” in United States v.

Atlantic Richfield Company and the doctrine of issue preclusion does not bar the

Plaintiffs’ suit. See Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 704-05

(Ind. Ct. App. 2005) (holding issue preclusion did not bar litigation of unjust

enrichment claim by plaintiff that was not a party in previous lawsuit), trans.

denied.

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 3. Intentional Infliction of Emotional Distress
[26] To establish a claim of intentional infliction of emotional distress, a plaintiff

must prove by a preponderance of the evidence “that the defendant: (1)

engage[d] in extreme and outrageous conduct (2) which intentionally or

recklessly (3) cause[d] (4) severe emotional distress to another.” Westminster

Presbyterian Church of Muncie v. Cheng, 992 N.E.2d 859, 870 (Ind. Ct. App.

2013), trans. denied. “It is the intent to harm one emotionally that forms the

basis for the tort.” Bradley v. Hall, 720 N.E.2d 747, 752 (Ind. Ct. App. 1999).

The conduct must be particularly deplorable to meet the extreme and

outrageous requirement.

Conduct is extreme and outrageous: ‘only where the conduct has
been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
‘Outrageous!’’

Conwell v. Beatty, 667 N.E.2d 768, 777 (Ind. Ct. App. 1996) (quoting Restatement

(Second) of Torts § 46 cmt. d (1965)), reh’g denied. If reasonable persons can differ

regarding the extremity and outrageousness of certain conduct, then the matter

should be left to a jury’s determination. See Bradley, 720 N.E.2d at 753

(reversing grant of summary judgment because “[r]easonable persons may differ

on the questions of whether Hall’s conduct was extreme and outrageous and, if

so, whether that conduct caused Bradley to suffer severe emotional distress”).

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[27] State Defendants argue Plaintiffs fail to allege facts sufficient to state a claim for

intentional infliction of emotional distress because the alleged conduct of State

Defendants was not extreme and outrageous. However, as the Plaintiffs note in

their brief, a civilized society should not be expected to tolerate “a government

standing silent while knowingly exposing its most-vulnerable citizens to toxic

substances when reasonable alternatives [exist].” (Appellees’ Br. at 54.) A

reasonable person could conclude that such conduct, if true, is extreme and

outrageous. See Mitchell v. Stevenson, 677 N.E.2d 551, 564 (Ind. Ct. App. 1997)

(holding widow’s disinterring deceased husband’s remains and removing his

headstone right before husband’s daughter, sister, and mother visited the grave

and after widow agreed husband’s daughter would assume primary

responsibility for maintaining the grave constituted extreme and outrageous

conduct), trans. denied.

[28] State Defendants also contend Plaintiffs fail to state a claim for intentional

infliction of emotional distress because the complaint does not allege any

intentional action by an individual State actor. Rather, the complaint ascribes

intent to the State Defendants. However, the case is at the pleading stage, and

the Plaintiffs have not yet been able to conduct discovery. Discovery will allow

the Plaintiffs to determine what, if any, individual State employees acted

intentionally to cause Plaintiffs emotional distress. Additionally, we have

allowed intentional infliction of emotional distress claims to proceed against

governmental entities before. See Johnson ex rel. Ind. Dept. of Child Services v.

Marion Co. Coroner’s Office, 971 N.E.2d 151, 162-63 (Ind. Ct. App. 2012)

Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020 Page 19 of 20
 (holding coroner’s office not entitled to summary judgment because genuine

issue of material fact existed regarding whether the manner of removing a dead

body amounted to extreme and outrageous conduct), trans denied. Therefore,

the trial court did not err in denying the State Defendants’ motion for judgment

on the pleadings regarding intentional infliction of emotional distress.

Conclusion
[29] State Defendants are not entitled to judgment on the pleadings pursuant to the

ITCA. It is not clear from the face of the complaint that warning the Plaintiffs

about exposure to dangerous levels of lead was a discretionary function.

Further, while the Plaintiffs sue both State Defendants and City Defendants,

the complaint alleges State Defendants are liable for their own acts.

Additionally, it is not clear from the face of the complaint that the Plaintiffs

brought the lawsuit outside the statute of limitations period or that their claims

are barred by issue preclusion. Also, Plaintiffs recite sufficient facts to state a

claim for intentional infliction of emotional distress. Therefore, we affirm the

trial court’s denial of State Defendants’ motion for judgment on the pleadings.

[30] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020 Page 20 of 20