Bushong v. WilliamsonBushong v. Williamson
CIVIL TRANSFER
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.
David Williamson is a teachеr 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 Mckball with the class, Williamson tagged Jonathan out. In response, Jonathan kicked Williamson in the buttocks. After being admonished not to do so again, Jonathan attemрted 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 Bush-ongs”), filed on Jonathan’s behalf a tort claims notice with the South Montgomery Sсhool Corporation and the Indiana Political Subdivision Risk Management Commission.
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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.
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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 supрorting the allegations.
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 tо the claim occurred within the scope of employment.
Bushong,
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.,
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 nоt 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 сomplaint. 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].”
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Because Williamson is employed by a political subdivision he is a government employee.
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The trial court granted Williamson’s motion for summary judgment on grounds that the
It is correct to say that a government employee may be sued personally
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.
To support his motion for summary judgment, Williamson relied in pertinent part on the Bushongs’ complaint; his own affidavit, which included the Bushоngs’ 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 оf 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
“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,
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. Becausе 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.
Notes
. Amended by P.L. 192-2001, § 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.
.Amended by P.L. 192-2001, § 2.
. 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.
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