ATTORNEY FOR APPELLANTS
: ATTORNEY FOR APPELLEE:
JAMES E. AYERS SHANNON L. ROBINSON
Wernle, Ristine & Ayers Kelley, Belcher & Brown
Crawfordsville, Indiana Bloomington, 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 ). )
(2) clearly outside the scope of the employees employment;
(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 employees 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 defendants 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 employees 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 Commrs 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. Dept 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 defendants tortious or negligent conduct caused the plaintiffs 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. See footnote
Because Williamson is employed by a political subdivision he is a government employee.See footnote The trial court granted Williamsons motion for summary judgment on grounds that the Indiana Trial Rule 56 materials demonstrated, among other things, that Williamsons 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 employees 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 employers 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 Williamsons 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. Dept 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 Williamsons 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 Williamsons acts were done within the scope of Williamsons 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 Williamsons motion for summary judgment, the Bushongs tendered their own affidavits along with other evidentiary materials. However, other than insisting that Williamsons 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 Williamsons favor.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
I.C. § 34-13-3-5(a) (current version at I.C. § 34-13-3-5(b)).