                                                            FILED
                                                          Feb 16 2012, 9:11 am
FOR PUBLICATION
                                                                 CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

DAVID A. KRUSE                                MARK W. BAEVERSTAD
Kruse & Kruse, P.C.                           ANDREW L. PALMISON
Auburn, Indiana                               Rothberg Logan & Warsco LLP
                                              Fort Wayne, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

RAYMOND DALE BERRYHILL,                       )
                                              )
      Appellant-Plaintiff,                    )
                                              )
             vs.                              )        No. 02A04-1108-SC-400
                                              )
PARKVIEW HOSPITAL,                            )
                                              )
      Appellee-Defendant.                     )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Jerry L. Ummel, Magistrate
                             Cause No. 02D01-0908-SC-17061



                                   February 16, 2012


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Raymond Dale Berryhill, who had suffered a stroke and other health problems,

became agitated and fought with his wife. His family persuaded him to go to the emergency

room at Parkview Hospital (“Parkview”), where he voluntarily checked himself in and

underwent some medical tests. Berryhill became loud and aggressive. Berryhill‟s physician

was concerned that he might be a danger to himself or others, so he ordered him to be taken

to a secured room and sedated. Two Parkview security guards tried to calm Berryhill down,

but he resisted and demanded to go home, so they escorted him to the secured room and

placed him in restraints. After Berryhill‟s outburst, his wife filed an application for Berryhill

to be detained and examined at Parkview Behavioral Health, from which he was released two

days later.

       Berryhill sued Parkview, alleging that the security guards‟ actions constituted false

imprisonment. The trial court concluded that Parkview was immune from liability based on a

statute that covers persons who assist in detentions. Berryhill now appeals, claiming that the

immunity statute does not apply because he was not detained for purposes of the statute until

after his wife filed the application for detention. We disagree with Berryhill and affirm the

trial court‟s judgment.

                               Facts and Procedural History

       The facts most favorable to the trial court‟s judgment are that on August 25, 2007,

Berryhill became agitated and argued with his wife, Kay. They fought over the TV remote

control, and Berryhill grabbed Kay‟s arm and pushed her onto the bed. At approximately


                                               2
11:20 a.m., Kay called 911. According to the 911 incident report, Kay requested an

ambulance for Berryhill “due to his head hurting from a prior stroke and brain surgery” and

informed the operator that he “also battered her during the incident.” Plaintiff‟s Ex. 1.

Emergency workers and police officers arrived at the Berryhills‟ home. The emergency

workers tried to persuade Berryhill to go to the emergency room, but he declined. The police

officers asked Kay if she wanted to have Berryhill arrested, and she declined. The

emergency workers and police officers then left the Berryhills‟ home.

        Eventually, the Berryhills‟ son persuaded Berryhill to go to the hospital, and he drove

his parents, wife, and daughter to Parkview‟s emergency room, where they arrived at

approximately 3:55 p.m. Berryhill told the triage nurse that he had come because his wife

thought that he was “nuts” and wanted to commit him to the “psycho ward.” Defendant‟s Ex.

C at 316. He said that he felt OK and denied feeling any pain or weakness. Kay told the

nurse that she was “worried” and that she “needed to see that he had some kind of tests or

MRI‟s or scans or something.” Tr. at 9.1 At 4:10 p.m., Berryhill signed an “Authorization to

Treat” form, which reads in pertinent part, “I hereby authorize the healthcare providers

involved with my healthcare to perform that medical treatment and those medical procedures,

which are necessary and appropriate. I understand that the physicians caring for me are




        1
          We direct the court reporter‟s attention to Indiana Appellate Rule 28(A), which states that the title
page of each volume of the transcript “shall conform to Form #App.R. 28-1” and that the transcript‟s table of
contents “shall be a separately bound volume.”                 Ind. Appellate Rule 28(A)(7) and -(8).
Also, we direct Berryhill‟s counsel‟s attention to Indiana Appellate Rule 50(F), which says, “Because the
Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any
portion of the Transcript in the Appendix.”

                                                      3
independent healthcare providers and not employees of the facility.” Defendant‟s Ex. C at

382 (emphasis added).

        At 4:44 p.m., emergency physician Dr. Gregg Pollander entered Berryhill‟s treatment

room.2 Dr. Pollander spoke with Berryhill and spoke separately with Berryhill‟s wife and

family. Dr. Pollander documented Berryhill‟s medical history, including a stroke and cranial

surgery for subdural hematomas. Dr. Pollander also documented Berryhill‟s anger issues and

the events leading to his emergency room visit.3 Dr. Pollander ordered a CT scan and a blood

test to determine whether there was a medical cause for Berryhill‟s “anger outbursts.” Id. at

331. As Dr. Pollander expected, the tests did not reveal any medical explanation for

Berryhill‟s behavior. At approximately 5:13 p.m., Berryhill underwent a brief clinical

assessment by Ocleva Williams of Parkview Behavioral Health,4 who documented Berryhill‟s

medical and anger issues.

        At approximately 5:45 p.m., Berryhill “became very angry, aggressive, and loud,” id.

at 329, and Dr. Pollander was concerned that he might “hurt himself or others.” Tr. at 52.



        2
           In his reply brief, Berryhill asserts that Dr. Pollander is Parkview‟s agent but cites no relevant
authority for this assertion.
        3
            Dr. Pollander‟s notes indicate that Berryhill

        presented to the emergency department for evaluation of anger issues.… He has a lifelong
        problem with anger, but since his stroke in November 2004, it has accelerated. In the last day
        or days, it has accelerated even more. It is to the point that he injured his wife‟s arm slightly
        today.

Defendant‟s Ex. C at 331.
        4
            We presume that Parkview Behavioral Health is affiliated with Parkview, but the nature of that
affiliation is unclear from the record before us.


                                                        4
Dr. Pollander ordered that Berryhill be taken to a secured room and administered a “small

dose of intravenous Geodon,” a relaxant. Id. Pursuant to Dr. Pollander‟s order, two

Parkview security guards approached the “agitated” Berryhill and attempted to calm him

down and persuade him to enter the secured room voluntarily. Id. at 65. Berryhill demanded

to go home and said that he would have to be “forced into the room.” Id. at 68. The guards

placed the “combative” Berryhill in a “two man control hold,” escorted him to the secured

room, and placed him on a bed in restraints “for his safety and safety of staff.” Id. at 68, 66,

69. Berryhill was given Geodon and eventually calmed down, after which his restraints were

removed.

       At some point after Berryhill‟s outburst, Kay signed an “Application for Emergency

Detention” form that reads in relevant part as follows:

              I, the undersigned, firmly believe that the above-named person
       [Berryhill] is mentally ill, dangerous and in need of immediate restraint for the
       following reasons: Mr. Berryhill became violent with his wife earlier today.
       She stated that since his head injury in March she has seen an increase in
       anger and rage in her husband. She reports that today was the worse [sic].
       He grabbed her, hit her and was out of control. He became violent in the ER
       and was put in 4pt restraints and given Giodon [sic]. Mr. Berryhill is a
       danger to others in his current state.

             I therefore petition the Court for an order that the above-named person
       be immediately taken into custody to be examined to determine whether said
       person is mentally ill and in need of commitment for care and treatment.

              I affirm under penalties for perjury that the foregoing representations
       are true.

       Dated this 25th day of August, 2007.

Plaintiff‟s Ex. 3 at 379 (emphases added). The italicized words are handwritten.


                                               5
       Also at some point after Berryhill‟s outburst, Dr. Pollander signed a medical statement

that reads in relevant part as follows:

              I, the undersigned, under the penalties for perjury, hereby state that I am
       a licensed physician in the State of Indiana and am of the opinion that
       Raymond D. Berryhill may be mentally ill and dangerous and is in need of
       immediate restraint in Parkview Behavioral Health… for the following
       reasons:

       Patient, Raymond Berry [sic], was brought to the ER because his wife was
       afraid he would hurt her. He had become violent towards her earlier today.
       Once he was calmed down she encouraged him to come to [the] ER. In [the]
       ER he became violent and was put in four-point restraints and given Geodon.
       This [patient] is a danger to others and need[s] to be admitted to PBH for a
       thorough evaluation. This [patient] is dangerous due to a head injury.

             This statement is based on an examination of the patient/information
       given me about the patient.

       Dated this 25 day of August, 2007.

Id. at 380 (emphases added). Again, the italicized words are handwritten.

       At 8:05 p.m., Judge David Avery issued a verbal order for Berryhill to be taken to

Parkview Behavioral Health and held for seventy-two hours for an examination. At 9:11

p.m., a police officer transported Berryhill to Parkview Behavioral Health. On August 26,

2007, Berryhill was examined by psychiatrist Dr. Gladys Beale, who recommended that he be

detained at least one more day for observation. On August 27, 2007, Dr. Beale determined

that Berryhill was “calm” and “in a good enough state emotionally in judgment to be able to

be discharged.” Tr. at 84-85.

       In August 2009, Berryhill filed a notice of claim against Parkview, in which he

alleged that he “was held against [his] will, kidnapped, abused, improper restraints and given


                                               6
a shot all against [his] will on 8-25-07.” Appellant‟s App. at 32. Berryhill later named

additional defendants, including Dr. Pollander, all of whom were dropped from the case. A

small claims bench trial was held in November 2010, at which Berryhill did not appear for

medical reasons. On November 22, 2010, the trial court issued a judgment in favor of

Parkview. On December 20, 2010, Berryhill filed a motion to correct error. On July 22,

2011, the trial court issued an amended judgment that reads in pertinent part as follows:

       1.   The Plaintiff became agitated and apparently was suffering from head
            pain on August 25, 2007. On that date he was involved in an altercation
            with his spouse and was eventually transferred to Parkview Hospital by a
            family member.

       2.   After arriving at the hospital the Plaintiff once again became violent and
            had to be subdued by hospital security. On that day the Plaintiff‟s spouse
            Kay Berryhill, signed an Application for Emergency Detention.

       3.   The Plaintiff argues that the Defendant [sic] attempted to leave the
            hospital on his own before he was forcibly subdued. There was very little
            evidence submitted by either party regarding this attempt to leave the
            hospital.

       4.   Under I.C. § 12-26-2-6 in order for the Plaintiff to recover they [sic]
            would have to show that the Defendant acted with malice, bad faith or
            negligence in this action. The Court finds that the Plaintiff failed to carry
            the burden of proving any malice, bad faith or negligence and therefore,
            the Plaintiff cannot recover.

Id. at 23. Berryhill now appeals.

                                 Discussion and Decision

       Our standard of review in small claims cases is well settled:

               [S]mall claims court judgments are “subject to review as prescribed by
       relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Pursuant
       to Trial Rule 52(A), the clearly erroneous standard applies to appellate review
       of facts determined in a bench trial with due regard given to the opportunity of

                                               7
        the trial court to assess witness credibility. This deferential standard of review
        is particularly important in small claims actions, where trials are designed to
        speedily dispense justice by applying substantive law between the parties in an
        informal setting. We also note that the parties in a small claims court bear the
        same burdens of proof as they would in a regular civil action on the same
        issues. Ind. Small Claims Rule 4(A). It is incumbent upon the party who bears
        the burden of proof to demonstrate that it is entitled to the recovery sought.
        We consider evidence in the light most favorable to the judgment, together
        with all reasonable inferences to be drawn therefrom. We will reverse a
        judgment only if the evidence leads to but one conclusion and the trial court
        reached the opposite conclusion.

               However, we note that this deferential standard does not apply to the
        substantive rules of law, which are reviewed de novo just as they are in appeals
        from a court of general jurisdiction.

Hastetter v. Fetter Props., LLC, 873 N.E.2d 679, 682-83 (Ind. Ct. App. 2007) (some citations

omitted).

        The gist of Berryhill‟s claim against Parkview is false imprisonment, which has been

defined as “the unlawful restraint upon one‟s freedom of movement or the deprivation of

one‟s liberty without consent.” Earles v. Perkins, 788 N.E.2d 1260, 1265 (Ind. Ct. App.

2003).5 Berryhill argues that the trial court erred in finding that “[t]here was very little

evidence submitted by either party” regarding his alleged attempt to leave the hospital before

he was restrained by the security guards. Appellant‟s App. at 23. We agree with Berryhill on

this point. Kay testified that Berryhill “was going to leave” the hospital, Tr. at 10, as did one




        5
          At trial, Kay testified that Berryhill suffered injuries and incurred medical expenses as a result of the
security guards‟ actions, but on appeal Berryhill does not claim that the guards committed battery or used
excessive force.


                                                        8
of the security guards,6 and Berryhill swore out an affidavit to this effect.7 Parkview did not

offer any contrary evidence.8 As such, the evidence is undisputed that Berryhill attempted to

leave the hospital but was restrained by Parkview‟s security guards.

        The question then becomes whether Berryhill was unlawfully restrained.9 After

Berryhill‟s outburst in the emergency room, Kay signed an application for detention pursuant

to Indiana Code Section 12-26-5-1, which says:

                (a) An individual may be detained in a facility for not more than
        seventy-two (72) hours under this chapter, excluding Saturdays, Sundays, and
        legal holidays, if a written application for detention is filed with the facility.
        The individual may not be detained in a state institution unless the detention is
        instituted by the state institution.
                (b) An application under subsection (a) must contain both of the
        following:
                (1) A statement of the applicant‟s belief that the individual is:
                       (A) mentally ill and either dangerous or gravely disabled;[10] and




        6
          See Tr. at 74 (“Q: …. [D]o you have any personal knowledge that after the tests [Berryhill] wanted
to leave and started to leave the hospital? A: Yes. Q: And at that point you were told to secure him? A:
Correct.”).
        7
           See Plaintiff‟s Ex. 2 (“I thought I checked myself in I could check my self [sic] out.… I walked out
of the treatment room where two security guards grabbed me one on each side. „I said I just want to go home.‟
 I repeatedly said „I just want to go home.‟”).
        8
           Dr. Pollander testified that he did not “know one way or the other” whether Berryhill had asked to
leave the hospital. Tr. at 58.
        9
           To the extent Parkview suggests that the restraint was not unlawful because Berryhill signed a
treatment authorization form and the security guards restrained him pursuant to Dr. Pollander‟s order, we agree
with Berryhill that “[a] consent for voluntary treatment does not forfeit the patient‟s right to end the treatment
and leave.” Appellant‟s Reply Br. at 7.

                                                        9
                      (B) in need of immediate restraint.
               (2) A statement by at least one (1) physician that, based on:
                      (A) an examination; or
                      (B) information given the physician;
        the individual may be mentally ill and either dangerous or gravely disabled.

        Indiana Code Section 12-26-2-6 provides:

                (a) A person who without malice, bad faith, or negligence acts
        according to this article and:
                (1) participates in proceedings for the detention or commitment of an
                individual; or
                (2) assists in the detention, care, and treatment of an individual alleged
                or adjudged to have a mental illness;
        is immune from any civil or criminal liability that might otherwise be imposed
        as a result of the person‟s actions.
                (b) The immunity provided by this section does not permit a person to
        do either of the following:
                (1) Physically abuse an individual.
                (2) Deprive an individual of a personal or civil right except according
                to this article.

In its amended judgment, the trial court determined that Parkview was entitled to immunity

from Berryhill‟s false imprisonment claim pursuant to Indiana Code Section 12-26-2-6

because Berryhill failed to establish that Parkview (through its employees, the security


        10
           For purposes of Indiana Code Article 12-26, “mental illness” means “a psychiatric disorder that:
(A) substantially disturbs an individual‟s thinking, feeling, or behavior; and (B) impairs the individual‟s ability
to function. The term includes mental retardation, alcoholism, and addiction to narcotics or dangerous drugs.”
 Ind. Code § 12-7-2-130. “Dangerous” means “a condition in which an individual as a result of mental illness,
presents a substantial risk that the individual will harm the individual or others. “ Ind. Code § 12-7-2-53.
“Gravely disabled” means

        a condition in which an individual, as a result of mental illness, is in danger of coming to
        harm because the individual:
                (1) is unable to provide for that individual‟s food, clothing, shelter, or other essential
                human needs; or
                (2) has a substantial impairment or an obvious deterioration of that individual‟s
                judgment, reasoning, or behavior that results in the individual‟s inability to function
                independently.

Ind. Code § 12-7-2-96.

                                                       10
guards) acted with malice, bad faith, or negligence, presumably while “act[ing] according to”

Indiana Code Article 12-26 and “assist[ing] in the detention, care, and treatment” of

Berryhill.

        Berryhill does not challenge the legality of the detention itself.11 Rather, Berryhill

contends that he was illegally restrained before he was detained pursuant to Indiana Code

Section 12-26-5-1. More specifically, Berryhill argues that he could not have been detained

before the application for detention was filed, which did not occur until after he was

restrained by the security guards.12 In other words, Berryhill argues that a person cannot be

considered detained for purposes of Indiana Code Section 12-26-5-1 until after an application

is filed. Similarly, Berryhill contends that Parkview is not entitled to immunity pursuant to

Indiana Code Section 12-26-2-6 because he was restrained before he was detained for

purposes of Indiana Code Section 12-26-5-1. We disagree.

        We have said that our objective when construing a statute

        is to ascertain and give effect to the legislative intent and to interpret the
        statute in such a manner as to prevent absurdity and to advance public
        convenience. In so doing, we must be mindful of the purpose of the statute, as
        well as the effect of such an interpretation. We presume that our legislature
        intended its language be applied in a logical manner consistent with the
        underlying goals and policy of the statute.


        11
            Berryhill‟s counsel conceded as much when questioning Kay at trial. See Tr. at 43 (“Q: …
[Y]ou‟re not challenging that commitment proceedings [sic] as such, what you‟re concerned with and
[Berryhill‟s] concerned with is the restraining of him and not letting him leave the hospital. He voluntarily
checked in and he wanted to leave. Instead of letting him leave they restrained him, that‟s the gist of your
complaint, is that correct? A: That‟s correct.”).
        12
            The record is silent regarding whether the application was filed with Parkview, where the
application was completed, or Parkview Behavioral Health, where Berryhill was transported. Because the
parties do not distinguish these facilities for purposes of either the detention statutes in general or Berryhill‟s
detention in particular, neither do we.

                                                        11
KPMG, Peat Marwick, LLP v. Carmel Fin. Corp., 784 N.E.2d 1057, 1060 (Ind. Ct. App.

2003) (citations omitted). We have also said that

       [s]tatutes relating to the same general subject matter are in pari materia and
       should be construed together so as to produce a harmonious statutory scheme.
       Courts are not bound to adopt a construction that would lead to manifest
       absurdity in order that the strict letter of the statute may be adhered to. They
       will rather look to the intention of the legislature, as gathered from the import
       of the whole act, and will carry out such intention as thus obtained.

Homestead Fin. Corp. v. Southwood Manor LP, 956 N.E.2d 183, 184-85 (Ind. Ct. App.

2011) (citation omitted). Moreover, “[i]t can be just as important to recognize what a statute

does not say as to recognize what it does say.” Town of Dyer v. Town of St. John, 919 N.E.2d

1196, 1202 (Ind. Ct. App. 2010). The construction of a statute is a pure question of law.

Pannell v. Penfold, 848 N.E.2d 1130, 1132 (Ind. Ct. App. 2006), trans. denied.

       Reduced to its essence, Indiana Code Section 12-26-5-1(a) says that “[a]n individual

may be detained in a facility for not more than seventy-two (72) hours … if a written

application for detention is filed with the facility.” (Emphasis added.) Notably, the statute

does not say that an individual may not be detained until after a written application for

detention is filed. Indeed, the statute does not specify when the written application must be

filed. In this case, the application for detention was based primarily on the very behavior that

led to Berryhill being restrained by Parkview‟s security guards. We cannot conclude that the

legislature intended to leave healthcare facilities and their employees powerless to detain

individuals who are mentally ill and either dangerous or gravely disabled before an

application for detention is filed. As such, without deciding precisely when Berryhill was

detained for purposes of Indiana Code Section 12-26-5-1, we conclude that the security

                                              12
guards “act[ed] according to” Indiana Code Article 12-26, which governs the voluntary and

involuntary treatment of mentally ill individuals, and “assist[ed] in the detention, care, and

treatment of an individual alleged … to have a mental illness” for purposes of Indiana Code

Section 12-26-2-6(a). There is no evidence that the guards acted with malice, bad faith, or

negligence (or physically abused Berryhill or deprived him of a personal or civil right except

according to Indiana Code Article 12-26), and therefore we conclude that Parkview is

entitled to immunity from Berryhill‟s false imprisonment claim. Accordingly, we affirm the

trial court‟s judgment in favor of Parkview.13

        Affirmed.

MAY, J., and BROWN, J., concur.




        13
            Given our resolution of this case, we need not address Parkview‟s arguments regarding the
applicability of Indiana Code Section 12-26-5-3, which says, “An individual detained under this chapter may
be examined and given emergency treatment necessary to do the following: (1) Preserve the health and safety
of the individual. (2) Protect other persons and property.”

                                                    13
