dissenting.
I believe the trial court correctly concluded that the allegation of negligence upon which the Bushongs' action is premised was against a government employee acting within the seope of his employment. Accordingly, I respectfully dissent from the reversal of summary judgment that was based upon that conclusion.
Ind.Code Ann. § 34-18-3-5(a) prohibits a lawsuit against a public employee for actions committed while the employee was acting within the seope of employment. The language of that provision is clear and unmistakable, and upon that limitation we are all agreed. I part company with my colleagues, however, in their conclusion that subsection (a) is limited in application to, practically speaking, only those cases where the complaint uses language parrot, ing the words of the statute. Put another way, according to the majority, the prohibition against suing public employees ap- - plies only when the complaint, on its face, asserts that the allegedly negligent acts were committed "within the seope of the defendant's employment," or words to that effect. I believe the majority's holding in the instant case has transformed subsection (a) into a "magic words" provision. Consistent with this reasoning, so long as a plaintiff does not make the tactical mistake of describing the complained-of acts by using the phrase "in the scope of employment," then the matter will proceed to trial. I believe that this interpretation of subsection (a) is inconsistent with IC § 34-13-3-5 when that statute is read as a whole.
As the majority indicates, subsection (a) provides that a public employee may not be sued personally for undertaking actions that were within the scope of employment. Subsection (b) provides that, when sued for negligence, governmental entities can plead as an affirmative defense that the allegedly negligent act was committed by an employee who was acting outside the seope of employment. Subsection (b) also provides that the plaintiff may amend the complaint in such cases to include an allegation against the employee personally. In my view, subsection (c) does no more than delineate those conditions under which our courts have determined that, in some cases, an employee was not acting within the seope of employment. See, e.g., City of Anderson v. Davis, 743 N.E.2d 359 (Ind.Ct.App.2001) (acts characterized as willful and wanton behavior may take such actions outside the seope of employment, thus shielding the employer from liability), trams. denied; Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind.Ct.App.2000) (an employer may not be liable for an employee's criminal acts if they were done on the employee's own initiative, and the employee had no intention to perform it as part of or incident to the service for which he was employed), trans. denied. Accordingly, the statute, as revised, merely clarifies the earlier version by delineating actions that might take an employee's action outside the scope of employment, and also adds the right to amend the complaint if the governmental entity alleges that the employee was not acting within the scope of employment. Keeping in mind the relevant case law prior to the revisions set out above, and in view of the substance of those revisions, I see nothing leading to the conclusion that the legislature intended to add magic words to the landscape.
*1101I pause at this point to express disagreement with another conclusion reached by the majority, ie., that we may look only to the face of the complaint in determining whether the allegedly tortious acts were committed in the seope of Williamson's employment. As reflected in the discussion above, the majority's conclusion in this regard flows from its interpretation as to the meaning of the recent revisions in IC § 34-18-3-5. My disagreement with the majority on the meaning of those revisions for purposes of adding magic words leads me also to reject this second ramification of that conclusion, viz. that courts may not look beyond the complaint in rendering summary judgment on the basis that the defendant was acting within the scope of employment. I discern no persuasive rationale for treating a summary judgment motion differently in this context than it is customarily treated in other contexts. Indeed, our courts have routinely decided the question of whether the allegedly tortious conduct was within the seope of employment in cases such as this. Seq, e.g., Burke v. Monroe County Public Library, 709 N.E.2d 1036 (Ind.Ct.App.1999), vacated in part on other grounds upon reh'g, 711 N.E.2d 1288, trans. denied; Jacobs v. City of Columbus Police Dept., 454 N.E.2d 1253 (Ind.Ct.App.1983).
Proceeding upon these principles, it remains only to determine whether the Bushongs alleged that the complained-of acts were committed within the seope of Williamson's employment. In my view, they did. Paragraph 2 of the complaint alleges that Williamson is a physical education teacher at South Montgomery Community School Corporation. It further alleges that the complained-of acts were committed by Williamson upon Jonathan Bushong while Bushong was a student in Williamson's physical education class. The designated materials as a whole reveal that fifth-grader Jonathan Bushong was playing kickball in gym class when his teacher tagged him out. The child then kicked his teacher in the buttocks and was warned by the teacher not to do that again. Jonathan disregarded that warning and attempted to kick his teacher a second time. This time, the teacher caught Jonathan's foot in mid-kick, lifted him off of the ground and carried him a short distance. Still holding Jonathan upside-down by his feet, the teacher swatted Jonathan's backside at least twice. In my view, Williamson's actions, as alleged by the Bushongs, constituted nothing more or less than the disciplining of a recalcitrant student.
"In Indiana, an employee's tortious act may fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business." Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind.1993). Even an intentional eriminal act may be deemed within the scope of employment if it originated in activities so closely associated with the employment re-" lationship as to fall within its scope. City of Anderson v. Weatherford, 714 N.E.2d 181 (Ind.Ct.App.1999), trans. denied. Surely, the maintenance of discipline in the classroom is an important part of any teacher's duties, and thus must be viewed as furthering the employer's-the school's-business.
In summary, I am convinced that the complained-of acts were done in furtherance of Williamson's employer's business, and thus were committed within the seope of his employment. Accordingly, pursuant to IC § 34-13-3-5, Williamson cannot be sued in his personal capacity. I would affirm the grant of summary judgment in his favor.