I. BACKGROUND
The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Plaintiffs as the non-moving party. See Zerante v. DeLuca ,
The facts of this case begin with a confrontation between Day, an eighteen-year-old with a medical history of obesity, and Michael Nesbitt ("Nesbitt"), a loss-prevention officer at a Burlington Coat Factory ("Burlington") located in Washington Square Mall in Indianapolis, Indiana. On September 26, 2015, Nesbitt observed Day, and a friend enter Burlington on the store's surveillance cameras. (Filing No. 52-8 at 10.) Nesbitt believed that he recognized Day as an individual he had observed stealing from the store on two prior occasions. Id. at 8-9, 41. On both prior occasions, Nesbitt had asked Day to leave the store and said he would be arrested if he returned. Id. at 8.While watching the stores surveillance video, Nesbitt believed he saw Day pick up a watch, put it in his pocket, and exit the store. Id. at 10. He followed Day out of the store to confront him about the watch and radioed mall security. Nesbitt was soon joined by mall security officer Anna Mahoy ("Mahoy") in the mall common area. Day first denied having taken anything from Burlington, but ultimately returned a watch to Nesbitt. Id. Nesbitt requested that Day return to the store, but Day refused and began to walk away. (Filing No. 52-9 at 10.)
Nesbitt and Mahoy's testimony differ vastly as to what happened next. Mahoy testified that she noticed the handle of what looked like a gun sticking out of Day's pocket, but she never observed him point or remove a gun, instead he just returned the watch and disagreed with returning to the story and he ran. Id. at 12. Nesbitt alleges that Day removed a gun from his pocket and pointed it at him, pushed Day and took cover, and Day began "running through the mall with the gun in his hand." (Filing No. 52-8 at 13.)
Nesbitt continued to chase Day into the parking lot of a Speedway gas station until Day slipped and fell on a grassy downslope (Filing No. 52-8 at 21-22.) As Day laid in the grass behind the Speedway, law enforcement arrived on the scene. Cumberland Police Department ("CPD") reserve officer John Covington ("Officer Covington") was the first officer to arrive in response to a radio call of an armed shoplifter running from the Burlington store across 10th Street to the Speedway gas station. (Filing No. 52-2 at 7.) Officer Covington encountered Nesbitt in the Speedway parking lot, and Nesbitt pointed out Day's location-laying on his back on the grassy slope just north of the gas station. (Filing No. 52-5 at 10-11.) Officer Covington parked his vehicle just east of the Speedway station, three or four car-lengths south of Day. Id. at 11-12. Believing Day was armed, Officer Covington drew his firearm and exited his police cruiser. Id. at 12. Day was on his stomach with his arms out to the side or to the top. Id. At 8. While waiting for other officers to arrive, Officer Covington ordered Day to show his hands and to point to his gun, which was no longer on his person. Id. at 13. Day complied with both orders, pointing out a gun in the grass, which was out of his reach. Id. , Filing No. 52-2 at 8. Officer Covington kept Day "under cover" until Officer Denny arrived on the scene, (Filing No. 52-2 at 8). Officer Covington then exited his vehicle, approached Day on foot. Day showed his hands and complied with the officer's orders.
Officer Denny placed Day in a single set of chain handcuffs. Id. at 9, 16. While handcuffing Day, Officer Denny observed that Day was overweight, sweating, and breathing heavily. Id. at 16, 18. Officer Denny repositioned Day so that he was "sitting on his behind" at the top of the slope with his legs out in front of him and his hands cuffed behind his back. Id. at 10. Day informed the officers that he was having trouble breathing. Id. at 13. Officer Denny told Day that he had exerted himself by running and that he should take deep breaths in and out to slow his heart rate. Id. Officer Denny did not observe any signs of distress, and never observed that Day was having trouble breathing.
Officer Denny instructed Day to remain seated upright in the position he had put him, believing that would be most comfortable for Day while the officers completed the investigation and effected the arrest. Id. at 79. Officer Denny preferred this position because, while it is comfortable for the detainee, it also makes it difficult for
As Officer Denny repositioned Day, he noticed that Day had defecated on himself. Id. at 10. Under the circumstances, Officer Denny believed that Day had over-exerted himself. Id. at 86-88. Day was unable to follow Officer Denny's instructions about how to position himself while he was detained and in handcuffs. When Officer Denny moved Day so that he was seated upright, Day laid back onto his back and rolled down the slope a bit. Id. at 92-93. As he started to roll, Officer Denny sat him back up in the middle of the slope with his legs out in front of him. Id. Wary that Day could asphyxiate himself if he rolled onto his stomach, Officer Denny reprimanded Day to remain in an upright seated position. Id. at 10-11. Day did not heed Officer Denny's instructions and rolled down the rest of the hill to where the grass met the pavement. Id. at 11. At that point, Officer Denny decided the best course of action was to have Day lie down on his side. Id. at 93.
Shortly after Officer Denny detained Day, Sergeant Wooten arrived on the scene to assist. Id. at 100. As the arresting officer, Officer Denny had investigative duties that precluded him from personally monitoring Day after initially detaining him. Id. at 89-90. Sergeant Wooten or a CPD officer remained near Day to monitor him from that point forward. Id. at 78; Filing No. 52-4 at 58-59. The last law enforcement officer to arrive on the scene was CPD Lieutenant Roger Waggoner.
Sergeant Wooten observed Day roll from his side onto his stomach. (Filing No. 52-3 at 32.) Sergeant Wooten and the other officers repositioned Day several times when he attempted to roll onto his stomach. Id. at 56; Filing No. 52-2 at 94. Day complained to Sergeant Wooten that he could not breathe. (Filing No. 52-3 at 31-33.) Sergeant Wooten was skeptical of Day's complaints because Day also stated that he had done nothing wrong and was asking for the officers to let him go. Id. Sergeant Wooten called for an ambulance to evaluate Day approximately five minutes after Day was initially detained. Id. at 31; Filing No. 52-2 at 13. As Sergeant Wooten observed him, Day appeared to calm down and began to breathe normally. (Filing No. 52-3 at 31.)
The ambulance, staffed by Douglas York ("York"), a paramedic, and James Brown ("Brown"), an emergency medical technician, arrived within several minutes. (Filing No. 52-6 at 14-15; Filing No. 52-14.) When York and Brown first encountered Day, he was lying on his back with his hands cuffed behind him. (Filing No. 52-6 at 21-22; Filing No. 52-7 at 33.) Day again complained of difficulty breathing but was able to speak to York and Brown in clear, full sentences. (Filing No. 52-6 at 25.) Although Day stated that he could not breathe, York did not observe Day to have any trouble breathing. Id. at 63. When asked by medics if he had any medical problems, Day stated that he did not. Id. at 32.
The medics conducted an evaluation which involved checking Day's vitals, obtaining his heart rate, respiratory rate, and his blood oxygen saturation. (Filing No. 52-14.) They attempted to take Day's blood pressure, but he would not allow them to. (Filing No. 52-6 at 16.) They also listened to Day's lungs with a stethoscope and found bilateral breath sounds present
The medics also conducted a Glasgow Coma Scale analysis on Day, which determines how oriented and responsive an individual is on a fifteen-point scale. Id. ; Filing No. 52-6 at 35-36. Day scored a perfect fifteen. (Filing No. 52-14; Filing No. 52-6 at 36.) During the medical evaluation Day's hands remained behind his back, but at some point, the police and medics helped him to stand. (Filing No. 52-6 at 40, 82.) Based on their medical evaluation, York and Brown believed that Day did not need to be transported to the hospital for medical treatment. Id. at 62-64, 70.
When medics decide that a handcuffed prisoner is not going to go to the hospital, they have an officer sign as a witness that they are returning the prisoner back into officer custody. (Filing No. 52-2 at 94.) In order to memorialize that transfer, medics have a law enforcement officer on the scene sign a signature of release form. (Filing No. 52-11 at 3-4; Filing No. 52-2 at 95-98.) Using the screen on a tablet, the officer signs this form as a witness to the transfer, not as a representative of the detainee. Id. Sergeant Wooten signed the signature of release form so that law enforcement could regain custody of Day. (Filing No. 52-3 at 57-60.) Because Day was handcuffed, the officers did not request that he sign the form. Id. at 61.
Sergeant Wooten used his finger to sign his name in a box on a laptop screen. He explained "[i]t's a laptop, and it's got all the information on there, all the stuff. And then in the lower right corner there's a box, and they said can you sign here to release, and I said yes." (Filing No. 52-3 at 58-59.) Sergeant Wooten's signature was attached to an Indianapolis Emergency Medical Services form called "Treatment/Transport Refusal," which is meant to be signed by a patient when he refuses to be transported to the hospital after being evaluated by medics. (Filing No. 52-14 at 5.) Plaintiffs believe Sergeant Wooten refused hospitalization on Day's behalf, and had he not signed the Treatment/Transport Refusal form, the medics may have decided to transport Day to the hospital. (Filing No. 75 at 16.)
Because Day was once again in law enforcement's custody, Officer Denny requested a "jail wagon" to transport Day to an appropriate detention facility. (Filing No. 52-2 at 35-36.) Marion County Sheriff's Deputy Steve Monday ("Deputy Monday") was the driver of the jail wagon. When Deputy Monday arrived, he spoke to Sergeant Wooten, who explained why Day was under arrest and notified Deputy Monday that Day had been evaluated by medics. (Filing No. 52-10 at 14-15.) Day was lying on his back when Deputy Monday arrived, and Deputy Monday lifted Day's leg to begin searching his shoes for contraband. Id. at 15. Day was generally unresponsive to Deputy Monday, and his legs fell to the ground after Deputy Monday removed his shoes and Day was unable to answer when Deputy Monday asked if he was okay. Id. at 15-16. When Deputy Monday and Sergeant Wooten attempted to stand Day up, Day's legs straightened, and his knees locked. Id. Deputy Monday considered Day uncooperative.
Deputy Monday was unsure whether Day was obstinate or was unresponsive because of a medical issue. He performed a sternum rub-the application of painful stimulus to an unresponsive subject's chest-to see whether Day would respond. Id. at 16. Day did not respond physically or verbally to the sternum rub, so Deputy Monday lifted his shirt and performed another one. Id. Although his eyes were
When the second ambulance arrived, the medics asked the officers near Day to assist them in placing him on a gurney. (Filing No. 52-5 at 42.) At this point, Day's eyes were open, and he was breathing. Id. at 43; Filing No. 52-3 at 121. Officer Covington overheard one of the medics say that Day's pulse was very weak. (Filing No. 52-5 at 43.) Once Day was loaded into the back of the ambulance, medics performed CPR on him. Id. ; Filing No. 52-3 at 119. If they are unable to transport someone to the hospital in stable condition, the medics are required to attempt to revive the person for thirty minutes at the scene. (Filing No. 52-2 at 15.) At 2:30 p.m., after thirty minutes of attempting to revive Day, the medics exited the ambulance and pronounced him dead. Id. at 16; Filing No. 52-15. Deputy Coroner Carrie England, dispatched to the scene as part of the Critical Incident Response Team, examined Day's body in the ambulance and noted that he had suffered no visible trauma. (Filing No. 52-19 at 5.) An autopsy later revealed that Day died of "Sudden Cardiac Death due to Acute Ischemic Change." (Filing No. 52-18 at 2.) The autopsy report listed contributory causes as "Sustained respiratory compromise due to hands cuffed behind the back, obesity, underlying cardiomyopathy." Id.
Following Day's death, Plaintiffs brought this suit alleging unreasonable seizure and excessive force in violation of the Fourth Amendment to the United States Constitution against Officer Denny and Sergeant Wooten in both their official and individual capacities. (Filing No. 19 at 5-7.) The Complaint also alleges negligence under Indiana law against both officers and the City of Indianapolis. Id. at 7-8. Last, the Complaint alleges a claim of loss of child's services for the loss of monetary contribution Day would have made to the family if he had not died. Id. at 8-9.
II. LEGAL STANDARD
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. ,
"In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of the claim." Ritchie v. Glidden Co. ,
III. DISCUSSION
A. Federal Claims
1. Official Capacity Claims
Sergeant Wooten and Officer Denny move for summary judgment on the claims against them in their official capacities on two grounds. First, they argue that "[a]ctions against individual defendants in their official capacities are treated as suits brought against the government entity itself." (Filing No. 53 at 26 (citing Walker v. Sheahan ,
The Court disagrees. The Plaintiffs' Complaint does allow the Court to infer that the officer Defendants were acting on City policy when they took some of the actions that support the claim. First, the Complaint alleges the officer Defendants acted unreasonably when they handcuffed Day with a single pair of handcuffs even though he was observably overweight. (Filing No. 19 at 6.) Moreover, the Complaint alleges that the officers placed Day on his back with his hands behind him and left him in that position for an extended period of time.
The Defendants also seek summary judgment on the claims against the officers in their official capacities arguing the
Identify whether you are making a Monell claim against the City stemming from the Incident. If you are making a Monell claim, identify with specificity the alleged policies, practices, or customs which constitute grounds for imposing entity liability under42 U.S.C. § 1983 on the City. Additionally, identify with specificity what constitutional rights were violated due to the aforementioned policy, practice, or custom. Further, identify all facts, documents, testimony, or other evidence which supports your contention that you possess a Monell claim.
(Filing No. 52-12 at 6.) Defendants' attorney responded, "No, I am not making a Monell claim."
Contention interrogatories, allowed under Federal Rule of Civil Procedure 33(a)(2), provide parties a "useful tool to 'minimize uncertainty concerning the scope of [a plaintiff's] claims.' " Deputy v. City of Seymour ,
Plaintiffs argue that they do not make a Monell claim, but instead they make a claim against Indianapolis as a municipality based on the city's widespread practices underlying Day's injuries. Defendants contend that this type of action against municipalities predated and was unaffected by Monell . (Filing No. 75 at 20.) But the Plaintiffs misinterpret City of St. Louis v. Praprotnik , the case they rely on for that assertion.
That leaves the Court with the question of whether the Plaintiffs waived their Monell claim by stating clearly that they were not asserting it in response to Defendants' contention interrogatories. Although there is no case directly on point from any court in this Circuit, for a contention interrogatory to serve as a useful tool to "minimize the uncertainty of [a plaintiff's] claims," the defendant must be able to rely on the answers the plaintiff
Therefore, summary judgment is granted as to the Plaintiffs' official-capacity claims against Sergeant Wooten and Officer Denny and as to any Monell claim against Indianapolis that the Complaint might have asserted.
2. Individual Capacity Claims
Defendants Sergeant Wooten and Officer Denny seek summary judgment on Plaintiff's claims that they violated the Fourth Amendment in their individual capacities. Defendants argue that Plaintiffs' claims fail as a matter of law and that, even if they did not, the officers are entitled to qualified immunity.
a. Fourth Amendment
The Plaintiffs allege that the officer Defendants violated Day's Fourth Amendment right when they unreasonably seized Day and used excessive force to apprehend and detain him. Excessive force claims are analyzed using the Fourth Amendment's "reasonableness" standard in the context of "an arrest, an investigatory stop or any other type of seizure." Stainback v. Dixon ,
Fourth Amendment unreasonable seizure claims, like excessive force claims, are analyzed in light of the totality of the circumstances to determine the objective reasonableness of the seizure. To determine the reasonableness and therefore the constitutionality of a seizure, courts must "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Tennessee v. Garner ,
Plaintiffs allege Officer Denny's and Sergeant Wooten's use of force was unreasonable because although Day was clearly obese and out of breath, they handcuffed Day with a single pair of handcuffs and allowed him to lay on his back for an extended period of time. Plaintiffs and Defendants differ on many facts of this case. For instance, Defendants credit Burlington loss prevention officer Michael Nesbitt's testimony, and therefore assert that "Day pulled out a gun in a shopping mall, and with gun in hand, fled from Nesbitt. Shortly after Day began to flee, he pointed his gun at Nesbitt.... During Day's flight, he also unsuccessfully attempted to carjack two different people." (Filing No. 53 at 28.) Defendants point out that Nesbitt's testimony is contradicted both by video evidence, which shows that Day begins his flight from Nesbitt without a gun in his hand, (Filing No. 76-8), and by the testimony of Washington Square Mall security officer Anna Mahoy, who testified that she observed what appeared to be a gun in Day's pocket, but that he never removed it (Filing No. 52-9 at 12). Mahoy also observed law enforcement's pursuit of Day to the hill behind the Speedway gas station and did not testify that she saw Day attempt a carjacking.
As a result of this factual dispute, the parties disagree as to the severity of the crime committed, a factor the Court considers under Graham . Defendants contend that Day pointed a gun at the loss prevention officer and that he attempted two carjacking's. (Filing No. 53 at 28.) Plaintiffs argue that Day merely stole a $ 19.99 wristwatch from a department store, and then returned that watch to the loss prevention officer before being chased out of the mall. (Filing No. 75 at 22-23.) Designated evidence supports each party's version of events, and the Court will not resolve that conflict at the summary judgment stage.
It is undisputed that a gun rested inches from his Day's hand when law enforcement first apprehended him, and thus Officer Denny's first handcuffing of Day was unquestionably reasonable. But after Officer Denny had handcuffed Day and confiscated his handgun, it is unclear whether Day was a risk to the safety of the officers or others at the scene or whether he was capable of flight. Testimony of the officers and video evidence reveals that Day was barely able to sit up. (Filing No. 52-2 at 92-93; Filing No. 76-4; Filing No. 76-16.) After he was initially handcuffed, it is not clear that any of the Graham factors weigh in favor of keeping Day handcuffed in an uncomfortable and possibly dangerous position.
Considering the facts in the light most favorable to the Plaintiffs, the Court cannot say that the officers acted reasonably as a matter of law. While the choice to handcuff Day initially may have been objectively reasonable, the officers' conduct after confiscating Day's gun could constitute an unconstitutional seizure under the Fourth Amendment. Some designated evidence indicates that Day had not committed a severe crime, that he no longer posed a danger to the officers, and that he was incapable of flight. Moreover, he complained numerous times about his difficulty breathing and ultimately died in part because his hands were cuffed behind his back, restricting his breathing.
b. Qualified Immunity
But that conclusion does not end the Court's analysis of this claim. Officer Denny and Sergeant Wooten also contend that summary judgment is warranted because they are entitled to qualified immunity. Qualified immunity shields public officials from civil liability for acts done in their official capacity, insofar as their conduct does not violate clearly established statutory or constitutional rights to which a reasonable person would have known. Harlow v. Fitzgerald ,
The Court explained in Section III.A.2.a that, based on the evidence in the record, a reasonable jury could find that Officer Denny and Sergeant Wooten violated Day's Fourth Amendment right. But the question of whether Day's right was clearly established such that a reasonable officer would have known his conduct violated the right remains. The Court must define the right in a particularized, rather than a general sense. Anderson v. Creighton ,
Defendants argue that there is no case establishing "a right which prohibited a non-resisting obese detainee from laying on his back and on top of his handcuffs on pavement after medical personnel informed the officers that he had no medical
Plaintiffs respond with several cases that they argue establish that "officers act unreasonably by failing to consider an injury or condition while handcuffing an individual." (Filing No. 75 at 33.) One case Plaintiffs cite is Salyers v. Alexandria Police Dep't ,
it was clearly established at the time of Salyers's arrest that when an officer is made aware that an arrestee who poses no risks of flight or safety suffers from a preexisting shoulder injury, the officer must fully consider the injury and surrounding circumstances in deciding whether it is appropriate to handcuff that arrestee behind his back or whether such restraint would inflict unnecessary pain.
Id. at *3. Citing Stainback at 773 (7th Cir. 2009), the Salyers court said that:
a body of law has developed holding that if an officer knows of a preexisting injury or medical condition that will be aggravated by handcuffing an arrestee behind his back, the officer is 'obligated to consider that information, together with the other relevant circumstances, in determining whether it [is] appropriate to handcuff [the arrestee in such a fashion.]'
Salyers at *3 (brackets original). "If the officer fails to consider the injury or condition and handcuffs the arrestee behind his back regardless of his impairment, the clearly established law provides that the officer has acted unreasonably." Id. But a reasonable officer is not expected to accommodate an injury that is not apparent or has not otherwise been known to him and generalized complains of pain are not sufficient to alert an officer that handcuffing an arrestee will aggravate a preexisting condition. Id. at *4.
Because whether a right is clearly established "turns on a fact-sensitive examination of the dimensions of the constitutional violation, the question can be difficult to resolve as a matter of law on summary judgment where the parties' versions of events are as far apart as they are in this case." Phelps v. City of Indianapolis ,
Here, assuming the Plaintiffs' version of events occurred, reasonable officers would know they were violating an established right by leaving Day's hands cuffed behind his back after he complained of difficulty breathing. It was "well established that it was unlawful to use excessively tight handcuffs and violently yank the arms of arrestees who were not resisting arrest, did not disobey the orders of a police officer, did not pose a threat to the safety of the officer or others, and were suspected of committing only minor crimes." Payne v. Pauley ,
Officer Denny and Sergeant Wooten are not entitled to qualified immunity on Plaintiffs' individual-capacity claims. Defendants' Motion for Summary Judgment as to those claims is denied .
B. State Law Claims
Count II of Plaintiffs' Complaint, titled "NEGLIGENCE/WRONGFUL DEATH," alleges that the Defendants were negligent in their care of Day and as a result Day passed away. (Filing No. 19 at 7-8.) To prove negligence under Indiana law, Plaintiffs must show: (1) a duty owed to the Plaintiff by the Defendant; (2) a breach of duty by allowing conduct to fall below the applicable standard of care; and (3) an injury proximately caused by the Defendant's breach. Webber v. Butner ,
Defendants also argue that the Indiana Tort Claims Act ("ITCA") immunizes them from the claim. The ITCA governs tort claims against governmental entities and public employees. Veolia Water Indianapolis, LLC v. Nat'l Trust Ins. Co. ,
Indianapolis argues that a different section of the ITCA shields it from liability. "Pursuant to the ITCA, 'governmental entities can be subject to liability for tortious conduct unless the conduct is within an immunity granted by Section 3 of [the] ITCA.' " Veolia Water at 5 (quoting
It is undisputed that IMPD officers were investigating a criminal offense-the parties differ over whether that offense was simple theft, armed robbery, carjacking, or some combination- when they arrested and handcuffed Day. Officers testified that they continued an investigation while Day remained handcuffed and eventually passed away. (Filing No. 52-2 at 79.) IMPD was plainly attempting to enforce the law, whether it be the laws against shoplifting or the laws against carjacking. Because Indiana Code § 34-13-3-3(8) immunizes governmental entities from liability for activities involving "the adoption and enforcement of...a law," the Court grants Defendants' summary judgment motion on behalf of Indianapolis as to Plaintiffs' negligence claim. To the extent Plaintiffs' wrongful death and loss of child's services
IV. CONCLUSION
For the reasons explained above, Defendants' Motion for Summary Judgment (Filing No. 51) is GRANTED in part and DENIED in part . As to Plaintiffs' Fourth Amendment excessive force claim, the Court grants summary judgment in favor of the City of Indianapolis and Officer Denny and Sergeant Wooten in their official capacities but denies summary judgment as to Officer Denny and Sergeant Wooten in their individual capacities. The Court grants summary judgment in favor of all Defendants on all Plaintiffs' state law claims.
SO ORDERED.
Notes
Mitthoeffer Road and 10th Street are the two main access roads bordering Washington Square Mall-Mitthoeffer to the west and 10th Street to the north. The mall is bound by Washington Pointe Drive to the east and US-40 to the south.
Plaintiffs dispute much of this portion of the Defendants' "STATEMENT OF MATERIAL FACTS NOT IN DISPUTE," arguing that Nesbitt is unreliable, that his narrative of events has become more fantastical each time he has reported it, and that much of his deposition is contradicted by other witnesses or by video evidence. On a summary judgment motion, the Court construes any disputed facts in Plaintiffs' favor as the non-movants.
Even if the Monell claim was not waived, Plaintiff has failed to designate sufficient evidence to establish that the City has a "widespread practice of signing away prisoners' rights to medical treatment" or a "practice of placing a single set of handcuffs on overweight persons and allowing them to have handcuffs on and lay on their backs for extended periods of time." (Filing No. 75 at 20). To hold a municipality liable, the plaintiff must prove that the municipality's "deliberate conduct...was the 'moving force' behind the injury alleged." Bd. Of Cnty. Comm'rs. v. Brown ,
Count III of Plaintiff's Complaint is titled "LOSS OF CHILD'S SERVICES." It alleges that as a result of Defendants' actions, Plaintiffs "suffer from the loss of Terrell Day's services and other monetary contributions," that Plaintiffs are "deprived of Terrell Day's love, companionship kindness [sic]," and that they "have incurred costs for the funeral and burial of Terrell Day, and for administering his estate." (Filing No. 19 at 9.) Count III does not cite any statute. Defendants argue that this Count and the wrongful death claim from Count II are not actual stand-alone claims under Indiana law-just categories of damages. (Filing No. 53 at 46.) Assuming wrongful death and loss of child's services constitute separate state-law claims, ITCA shields all Defendants from liability as to both.