Bushong v. Williamson

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:

JAMES E. AYERS SHANNON L. ROBINSON

Wernle, Ristine & Ayers Kelley, Belcher & Brown
Crawfordsville, Indiana Bloomington, Indiana

IN THE

SUPREME COURT OF INDIANA

DONNA BUSHONG and GARY BUSHONG, )
Parents of JONATHAN BUSHONG, )
) Supreme Court Cause Number
Appellants (Plaintiffs), ) 54S01-0205-CV-267
)
v. )
) Court of Appeals Cause Number
DAVID WILLIAMSON, ) 54A01-0103-CV-100
)
Appellee (Defendant). )

APPEAL FROM THE MONTGOMERY SUPERIOR COURT
The Honorable David A. Ault, Judge
Cause No. 54D01-0003-CP-84

CIVIL TRANSFER

June 27, 2003

RUCKER, Justice
This case presents the question of whether in a tort action against a
public employee, a trial court may examine evidence outside of the
complaint to determine whether the employee was acting within the scope of
employment. We hold that it may.

Facts and Procedural History

David Williamson is a teacher for the South Montgomery School
Corporation. Jonathan Bushong was a student in Williamson’s fifth grade
physical education class. On March 20, 1998, while playing kickball with
the class, Williamson tagged Jonathan out. In response, Jonathan kicked
Williamson in the buttocks. After being admonished not to do so again,
Jonathan attempted to kick Williamson a second time. At that point,
Williamson caught Jonathan’s ankle in mid-air, lifted Jonathan from the
ground, and struck him on the back, legs, and buttocks with his hand.
Jonathan sustained bruises as a result.
On August 4, 1998, Jonathan’s parents, Gary and Donna Bushong (“the
Bushongs”), filed on Jonathan’s behalf a tort claims notice with the South
Montgomery School Corporation and the Indiana Political Subdivision Risk
Management Commission. See Ind. Code § 34-13-3-8. The Bushongs did not
pursue a claim against the school. However, on March 16, 2000, the
Bushongs filed a complaint against Williamson personally seeking damages
for the loss of their son’s consortium, love, and companionship. After
conducting discovery, Williamson filed a motion for summary judgment. The
trial court granted the motion concluding: (i) the Bushongs’ pleadings and
discovery responses showed that Williamson’s actions were done within the
scope of his employment; and (ii) the Bushongs failed to give Williamson
notice as required by the Indiana Tort Claims Act. On review, a divided
panel of the Court of Appeals reversed the judgment of the trial court and
remanded the cause for further proceedings. In so doing, the majority
determined: (1) under the Tort Claims Act as amended in 1995, the trial
court was precluded from considering documents outside of the complaint in
determining whether the defendant’s acts occurred within the scope of
employment; and (2) a genuine issue of material fact existed as to whether
Williamson’s act occurred in the scope of employment. Bushong v.
Williamson, 760 N.E.2d 1090, 1095, 1097 (Ind. Ct. App. 2001). The Court of
Appeals also determined that the trial court erred in determining that the
Bushongs were required to give Williamson notice under the Indiana Tort
Claims Act. Id. at 1098. We previously granted transfer thereby vacating
the Court of Appeals’ opinion. Bushong v. Williamson, 774 N.E.2d 514 (Ind.
2002).

Discussion

Prior to a 1995 amendment to Indiana’s Tort Claims Act (“ITCA”), a
plaintiff was permitted to sue a governmental employee in tort for acts
committed within the scope of the employee’s employment. See I.C. § 34-4-
16.5-5 (repealed 1995). The plaintiff could sue either the employer or the
employee, and the “notice requirement of the Tort Claims Act applie[d] not
only to political subdivisions, but also employees of political
subdivisions as well.” VanValkenburg v. Warner, 602 N.E.2d 1046, 1048
(Ind. Ct. App. 1992) (citing Poole v. Clase, 476 N.E.2d 828 (Ind. 1985)),
trans. denied. However, where the plaintiff elected to sue only the
governmental employee, notice was required under the ITCA “only if the act
or omission causing the plaintiff’s loss is within the scope of defendant’s
employment.” Id. at 1049. The notice requirement was based on provisions
in the ITCA requiring the government entity to defend an employee sued
within the scope of employment, even if the government entity was not named
as a defendant and regardless of whether the employee could be held
personally liable for the loss. Poole, 476 N.E.2d at 830-31 (citing
provisions of the statute currently codified at I.C. § 34-13-3-5(d), (e)).
Although it appears that the notice provision still remains intact,
amendments to the ITCA, effective July 1, 1995, limit when a plaintiff may
sue a governmental employee personally. At the time this incident
occurred, Indiana Code section 34-13-3-5(a)[1] in pertinent part provided:
“[a] lawsuit alleging that an employee acted within the scope of the
employee’s employment must be exclusive to the complaint and bars an action
by the claimant against the employee personally.”[2] Indiana Code section
34-13-3-5(b)[3] provided:
A lawsuit filed against an employee personally must allege that an act
or omission of the employee that causes a loss is:

(1) criminal;
(2) clearly outside the scope of the employee’s employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.

The complaint must contain a reasonable factual basis supporting the
allegations.

I.C. § 34-13-3-5(b) (current version at I.C. § 34-13-3-5(c)).
In this case, the Court of Appeals majority held that the language of
the pre-2001 revision of section 5(a) meant that a plaintiff may not now
sue a governmental employee personally if the complaint, on its face,
alleges that the employee’s acts leading to the claim occurred within the
scope of employment. Bushong, 760 N.E.2d at 1095. We agree. The statute
seems fairly explicit on this point. However, we disagree with our
colleagues that the portion of section 5(a) that says the scope of
employment allegation must be “exclusive to the complaint,” means that the
trial court is confined to looking only to the face of the complaint in
determining whether the defendant’s acts occurred in the scope of
employment. Id.
When interpreting a statute, the express language of the statute
controls the interpretation and the rules of statutory construction apply.
This Court is required to determine, give effect to, and implement the
legislative intent underlying the statute and to construe the statute in
such a way as to prevent absurdity and hardship and to favor public
convenience. Livingston v. Fast Cash USA, Inc., 753 N.E.2d 572, 575 (Ind.
2001). In so doing, we should consider the objects and purposes of the
statute as well as the effects and repercussions of such an interpretation.
Id. The legislative intent as ascertained from the provision as a whole
prevails over the strict literal meaning of any word or term. Shell Oil
Co. v. Meyer, 705 N.E.2d 962, 970 (Ind. 1998).
The ITCA, Indiana Code section 34-13-3-1 et seq., governs lawsuits
against political subdivisions and their employees. Among other things the
statute provides substantial immunity for conduct within the scope of the
employee’s employment. See I.C. § 34-13-3-3 (setting forth twenty-two
separate categories for which immunity attaches). Immunity assumes
negligence but denies liability. Catt v. Bd. of Comm’rs of Knox County,
779 N.E.2d 1, 5 (Ind. 2002). “‘The purpose of immunity is to ensure that
public employees can exercise their independent judgment necessary to carry
out their duties without threat of harassment by litigation or threats of
litigation over decisions made within the scope of their employment.’”
Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind. 2000)
(quoting Ind. Dep’t of Corr. v. Stagg, 556 N.E.2d 1338, 1343 (Ind. Ct. App.
1990), trans. denied).
It is true that the 1995 amendment barring lawsuits against government
employees personally was not included as a part of the specific immunity
provision of Indiana Code section 34-13-3-3. However, the effect of the
amendment produces the same result. That is to say, the amendment allows
government employees acting in the scope of their employment the freedom to
carry out their duties without the fear of litigation. It does not appear
to us that the Legislature intended to alter this result by its use of the
phrase “exclusive to the complaint.” In our view the Legislature merely
intended that if a plaintiff alleges that an employee acted within the
scope of employment then those allegations must appear on the face of the
complaint. This provides an immediate and early indication that the
employee is not personally liable. In the paraphrased words of the
statute, the action against the employee is “bar[red].” See I.C. § 34-13-3-
5(a) (current version at I.C. § 34-13-3-5(b)). However, the statute is
simply silent and does not speak to what happens when no “scope of
employment” allegation is made in the complaint. In that event, the
government employee is in the same position as any other defendant in a
lawsuit where an allegation is made that the defendant’s tortious or
negligent conduct caused the plaintiff’s injury. The difference is that a
government employee defendant has a complete defense: the action occurred
within the scope of employment. If post-complaint discovery supports this
claim, then it is appropriate that the defendant file a motion for summary
judgment.[4]

Because Williamson is employed by a political subdivision he is a
government employee.[5] The trial court granted Williamson’s motion for
summary judgment on grounds that the Indiana Trial Rule 56 materials
demonstrated, among other things, that Williamson’s conduct giving rise to
the Bushongs’ complaint occurred within the scope of employment. We will
address this issue in more detail below. We pause here to address a claim
made by the Bushongs. They insist that the trial court erred in granting
summary judgment because their complaint specifically alleged that
Williamson committed battery on Jonathan, which was a criminal act. Thus,
according to the Bushongs, Williamson ipso facto was acting outside the
scope of his employment.
It is correct to say that a government employee may be sued personally
where the complaint alleges the act or omission causing the loss is
criminal. See I.C. § 34-13-3-5(c)(1). However the fact of criminal
conduct standing alone is not dispositive of whether the employee was
acting outside the scope of employment. We have recently explained,
“conduct . . . of the same general nature as that authorized, or incidental
to the conduct authorized,” is within the employee’s scope of employment.
Celebration Fireworks, 727 N.E.2d at 453 (quoting Restatement (Second) of
Agency § 229 (1958)). An act is incidental to authorized conduct when it
“is subordinate to or pertinent to an act which the servant is employed to
perform,” id. (quoting Restatement (Second) of Agency § 229 cmt. b (1958)),
or when it is done “to an appreciable extent, to further his employer’s
business.” Id. (quoting Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind.
1993)). Even criminal acts may be considered as being within the scope of
employment if “the criminal acts originated in activities so closely
associated with the employment relationship as to fall within its scope.”
Stropes v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d
244, 247 (Ind. 1989). Generally, whether the tortious act of an employee
is within the scope of employment is a question of fact. However, under
certain circumstances the question may be determined as a matter of law.
Kemezy, 662 N.E.2d at 1298. In this case, the trial court determined that
the discovery materials conclusively demonstrated that Williamson was
acting in the scope of employment as a matter of law. The trial court was
correct in examining the Trial Rule 56 materials to make this
determination. We also conclude the trial court was correct in granting
summary judgment in Williamson’s favor.
Our standard of review for summary judgment is that used in the trial
court: summary judgment is appropriate only where the evidence shows there
is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C); Tom-Wat, Inc. v. Fink,
741 N.E.2d 343, 346 (Ind. 2001). All facts and reasonable inferences drawn
from those facts are construed in favor of the non-moving party. Tom-Wat,
741 N.E.2d at 346. Also, review of a summary judgment motion is limited to
those materials designated to the trial court. Mangold v. Ind. Dep’t of
Natural Res., 756 N.E.2d 970, 973 (Ind. 2001).
To support his motion for summary judgment, Williamson relied in
pertinent part on the Bushongs’ complaint; his own affidavit, which
included the Bushongs’ Notice of Tort Claims; and the Bushongs’ answers to
interrogatories. The relevant portion of the Bushongs’ complaint recounted
the events giving rise to the lawsuit and alleged that Williamson’s conduct
was criminal. Although the allegations of the complaint shed little light
on whether Williamson was acting in the scope of employment, the additional
materials are more instructive. The Bushongs’ Notice of Tort Claims
alleged in relevant part that Williamson’s acts “were done within the scope
of Williamson’s employment with the South Montgomery School Corporation.”
App. of Appellee at 15. In similar fashion, relevant portions of the
Bushongs’ answers to interrogatories said “Mr. Williamson[] . . . inflicted
bodily injury as an employee of a school corporation, while engaged in his
official duty on school property . . . .” Id. at 58. In opposition to
Williamson’s motion for summary judgment, the Bushongs tendered their own
affidavits along with other evidentiary materials. However, other than
insisting that Williamson’s conduct was criminal, a point that is not
dispositive, none of the materials raised a genuine issue of material fact
as to whether Williamson was acting in the scope of employment when he
struck Jonathan. In essence the Bushongs conceded this point in their
Notice of Tort Claims and supplemented this concession by their
interrogatory answers.
"The purpose of summary judgment is to terminate litigation about
which there can be no factual dispute and which may be determined as a
matter of law." Kottlowski v. Bridgestone/Firestone, 670 N.E.2d 78, 82
(Ind. Ct. App. 1996), trans. denied. Once the moving party has sustained
its initial burden of proving the absence of a genuine issue of material
fact and the appropriateness of judgment as a matter of law, the party
opposing summary judgment must respond by designating specific facts
establishing a genuine issue for trial. Stephenson v. Ledbetter, 596
N.E.2d 1369, 1371 (Ind. 1992). A factual issue is material for the
purposes of Trial Rule 56(C) if it bears on the ultimate resolution of a
relevant issue. Blackwell v. Dykes Funeral Homes, Inc., 771 N.E.2d 692,
695 (Ind. Ct. App. 2002), trans. denied. A factual issue is genuine if it
is not capable of being conclusively foreclosed by reference to undisputed
facts. Id. As a result, despite conflicting facts and inferences on some
elements of a claim, summary judgment may be proper where there is no
dispute or conflict regarding a fact that is dispositive of the claim. Id.
If the opposing party fails to meet its responsive burden, the court shall
render summary judgment. Krueger v. Hogan, 780 N.E.2d 1199, 1201 (Ind. Ct.
App. 2003).
In this case Williamson carried his initial burden of demonstrating
that he was acting within the scope of employment, a fact that is
dispositive of the Bushongs’ claim for relief. Because the Bushongs failed
to designate evidentiary materials showing a factual dispute on this
dispositive issue, the trial court properly granted summary judgment in
Williamson’s favor.

Conclusion

The 1995 amendment to the Tort Claims Act, barring lawsuits against
government employees personally, does not preclude the trial court from
examining evidence outside of the complaint to determine whether the
employee was acting within the scope of employment. Thus, the trial court
in this case properly examined the parties’ submissions in support of and
in opposition to a motion for summary judgment to determine this point.
Because there is no genuine issue of material fact concerning whether
Williamson’s complained-of conduct was committed within the scope of
employment, summary judgment in his favor was correct. Accordingly, we
affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] Amended by P.L. 192-2001, § 2.

[2] The full text of the statute read:
A judgment rendered with respect to or a settlement made by a
governmental entity bars
an action by the claimant against an employee whose conduct gave
rise to the claim resulting in that judgment or settlement. A
lawsuit alleging that an employee acted within the scope of the
employee’s employment must be exclusive to the complaint and
bars an action by the claimant against the employee personally.
However, if the governmental entity answers that the employee
acted outside the scope of the employee’s employment, the
plaintiff may amend the complaint and sue the employee
personally. An amendment to the complaint by the plaintiff
under this subsection must be filed not later than one hundred
eighty (180) days from the date the answer was filed and may be
filed notwithstanding the fact that the statute of limitations
has run.

I.C. § 34-13-3-5(a) (current version at I.C. § 34-13-3-5(b)).

[3] Amended by P.L. 192-2001, § 2.
[4] On the other hand, if the complaint alleges that a government
employee acted within the scope of employment, then a motion to dismiss
under Trial Rule 12(B)(6) would be the appropriate course of action.

[5] See I.C. § 34-6-2-110 (providing in pertinent part, “[p]olitical
subdivision, for purposes of I.C. § 34-13-3, means a . . . (9) school
corporation”).