                                                             FILED
                                                         Mar 03 2020, 9:22 am

                                                             CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court




                          IN THE

  Indiana Supreme Court
            Supreme Court Case No. 19S-CT-549

                    Bryce A. Burton,
                           Appellant,

                              –v–

    Martin Benner and Indiana State Police,
                           Appellees.


      Argued: November 26, 2019 | Decided: March 3, 2020

              Appeal from the Benton Circuit Court
                     No. 04C01-1612-CT-176
          The Honorable Hunter J. Reece, Special Judge

    On Petition to Transfer from the Indiana Court of Appeals
                        No. 19A-CT-135



                   Opinion by Justice David
Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
David, Justice.

   Certain negligent acts or omissions on the part of a government
employee have the potential to remove the shield of respondeat superior
and expose the employee to personal liability. Under the Indiana Tort
Claims Act, there are only a handful of well-delineated pathways to
accomplish this task. One of those paths is to show that the employee’s act
or omission was “clearly outside the scope of the employee’s
employment.” Ind. Code § 34-13-3-5(c)(2).

   Here, Bryce Burton attempted to sue Indiana State Trooper Martin
Benner in his personal capacity after the two were involved in an accident
in rural Benton County. At the time of the accident, Trooper Benner was
off duty but was operating his state issued police commission as allowed
under State Police policy. Arguing he was acting within the scope of his
employment at the time of the accident, Benner sought summary
judgment on whether he could be held personally liable for any damages
that flowed from the incident. The trial court awarded summary judgment
in favor of Benner because though off duty, Benner was otherwise in
substantial compliance with State Police policy in operating his
commission and was therefore not clearly outside the scope of his
employment. The Court of Appeals reversed, opining that reasonable
minds could disagree whether the trooper was outside the scope of his
employment and summary judgment was thus inappropriate.

   We granted transfer and now find that, although there is some evidence
that Trooper Benner was not in strict compliance with State Police policy
at the time of the accident, this was not enough to place him “clearly
outside” the scope of his employment. Accordingly, we affirm the
judgment of the trial court.


Facts and Procedural History
   As of 2015, Indiana State Trooper Martin Benner had been employed by
the Indiana State Police for eighteen years. As part of his employment, the
State Police issued Benner an unmarked 2012 Dodge Charger—commonly
referred to as the trooper’s “commission.” Troopers that operate State


Indiana Supreme Court | Case No. 19S-CT-00549 | March 3, 2020      Page 2 of 9
Police commissions are subject to a Standard Operating Procedure that
establishes guidelines for the operation of the vehicle when the officer is
on- or off-duty and during both emergency and non-emergency driving
situations. Under the policy, employees that operate a commission are
required, among other things, to maintain radio contact at all times (even
while off-duty), to not violate any traffic law unless necessary in
performance of official duties, and to respond to emergency situations if
they are “assigned or made aware of a nearby situation.” (Appellant’s
App. Vol. 2 at 37-39.) The policy also authorizes employees to exercise de
minimis use of their commission for limited and reasonable personal
transportation.

   On June 4, 2015, Trooper Benner completed his road patrol duties for
the day, went home to take a shower, and re-entered his commission to
drive to his son’s baseball game. Now in street clothes, Benner was
traveling southbound on Meridian Road south of State Road 352 in Benton
County when he decided to pass the vehicle in front of him after
northbound traffic cleared. As he departed the southbound lane, he
noticed a motorcycle in the northbound lane approaching him from
approximately 139 yards away. Benner quickly slowed his vehicle and
moved back into his own lane, but not before the oncoming motorcycle
locked its brakes, swerved from side to side, rolled over, and ejected both
the operator—Plaintiff Bryce Burton—and Burton’s passenger.

   Burton filed suit against Benner alleging the trooper was negligent in
operating his vehicle and seeking damages for the injuries he sustained in
the accident. Benner moved for summary judgment, arguing that he was
acting within the scope of employment while driving his commission and
was thus immune from personal liability under Indiana Code chapter 34-
13-3 (Tort Claims Against Governmental Entities and Public Employees).
Benner also alleged that Burton was contributorily negligent so as to bar




Indiana Supreme Court | Case No. 19S-CT-00549 | March 3, 2020       Page 3 of 9
recovery under the common law.1 The trial court granted partial summary
judgment on the first issue in Trooper Benner’s favor, finding that he was
not “clearly outside” the scope of his employment when the incident
occurred.2 After the Indiana State Police was added as a defendant, Benner
sought and obtained dismissal of the suit against him in his personal
capacity. Burton appealed.

   In a unanimous opinion, the Court of Appeals reversed. Burton v.
Benner, 127 N.E.3d 1198, 1200 (Ind. Ct. App. 2019). While the “salient facts
[were] undisputed,” the Court of Appeals found “the inferences that can
be made from and conclusions that can be based on those facts are
anything but.” Id. Thus, the Court of Appeals concluded summary
judgment in favor of Trooper Benner was inappropriate because
reasonable factfinders could disagree on whether Benner was acting
outside the scope of his employment at the time of the accident. Id.

  The State sought transfer, which we granted, thereby vacating the
Court of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   When this Court reviews a grant or denial of a motion for summary
judgment, we “stand in the shoes of the trial court.” Murray v. Indianapolis
Public Schools, 128 N.E.3d 450, 452 (Ind. 2019) (quoting Campbell
Hausfeld/Scott Fetzer Company v. Johnson, 109 N.E.3d 953, 955-56 (Ind.
2018)). We ask, “whether there is a genuine issue of material fact, and
whether the moving party is entitled to judgment as a matter of law.”




1See Mangold ex rel. Mangold v. Indiana Dep’t of Natural Resources, 756 N.E.2d 970, 977 (Ind.
2001) (Shepard, C.J., concurring and delivering the Court’s opinion in Part III) (explaining
claims brought against government entities under the Indiana Tort Claims Act are subject to
the common law theory of contributory negligence which bars a plaintiff’s recovery if the
plaintiff was even slightly negligent).
2The trial court denied summary judgment on Benner’s contributory negligence theory.
Accordingly, Burton sought—and was granted—leave to amend his complaint to add the
Indiana State Police as a defendant.



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Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)
(citation omitted). The party moving for summary judgment bears the
burden of making a prima facie showing that there is no issue of material
fact and that it is entitled to judgment as a matter of law. Id. The burden
then shifts to the non-moving party to show the existence of a genuine
issue. Id. On appellate review, we resolve “[a]ny doubt as to any facts or
inferences to be drawn therefrom … in favor of the non-moving party.” Id.

   Summary judgment is appropriate if the designated evidence “shows
that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).


Discussion and Decision
   Because Trooper Benner raised an affirmative defense that he was
immune from personal liability under the Indiana Tort Claims Act
(“ITCA”), the issue in this case is whether Benner was acting “clearly
outside” the scope of his employment at the time of the accident such that
he could be held personally liable for the injuries sustained by Burton. The
State urges us to affirm the trial court’s order granting summary judgment
in favor of Benner on this issue, while Burton argues there is a genuine
issue of material fact that should be decided by a jury.

   The ITCA “governs lawsuits against political subdivisions and their
employees.” Bushong v. Williams, 790 N.E.2d 467, 472 (Ind. 2003); Ind.
Code § 34-13-3-1 et seq. The statute sets forth certain parameters to
determine liability for negligent acts or omissions on the part of
government employees and “provides substantial immunity for conduct
within the scope of the employee’s employment.” Id. “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) (citation omitted). Relevant to the present
case, “A lawsuit filed against an employee personally must allege that an
act or omission of the employee that causes a loss is … clearly outside the



Indiana Supreme Court | Case No. 19S-CT-00549 | March 3, 2020          Page 5 of 9
scope of the employee’s employment.” Ind. Code § 34-13-3-5(c)(2)
(emphasis added).3

   Generally speaking, “whether an employee’s actions were within the
scope of employment is a question of fact to be determined by the
factfinder.” Knighten v. East Chicago Housing Authority, 45 N.E.3d 788, 794
(Ind. 2015) (citation omitted). When the facts are undisputed and “would
not allow a jury to find that the tortious acts were within the scope of
employment,” however, a court may conclude as a matter of law that the
acts were not in the scope of employment. Cox v. Evansville, 107 N.E.3d
453, 460 (Ind. 2018).

   Under the doctrine of respondeat superior, an employee’s act or
omission falls within the scope of employment if the injurious behavior is
incidental to authorized conduct or furthers the employer’s business to an
appreciable extent. Knighten, 45 N.E.3d at 792 (citation omitted).
Conversely, “an employee’s act is not within the scope of employment
when it occurs within an independent course of conduct not intended by
the employee to serve any purpose of the employer.” Id. (quoting Barnett
v. Clark, 889 N.E.2d 281, 284 (Ind. 2008)). But “an employee's wrongful act
may still fall within the scope of his employment if his purpose was, to an
appreciable extent, to further his employer's business, even if the act was
predominantly motivated by an intention to benefit the employee
himself.” Id. Ultimately, we have found that “the scope of employment
encompasses the activities that the employer delegates to employees or
authorizes employees to do, plus employees’ acts that naturally or
predictably arise from those activities.” Cox, 107 N.E.3d at 461.

   Viewing this lawsuit through the ITCA, the question becomes whether
Trooper Benner was “clearly outside” the scope of his employment when
the accident occurred. The State urges that Trooper Benner was within the




3Indiana Code section 34-13-3-5(c) also authorizes a lawsuit to be filed against an employee
personally if the plaintiff alleges the employee’s act or omission is criminal, malicious, willful
and wanton, or calculated to benefit the employee personally. Those circumstances have not
been alleged in the present suit.



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scope of employment because, even though he was off duty, he was
required by State Police policy to maintain radio contact, respond to
emergencies, carry a firearm, and conform to a certain dress code. This,
the State argues, furthers State Police business by providing an increased,
more visible presence on the roads. Additionally, the State believes that if
Benner’s acts arguably fell within the scope of his employment, then by
definition the acts cannot be “clearly outside” the scope of his
employment.

  Burton, on the other hand, argues that Benner’s actions had no causal
connection to his employment and any minimal compliance with State
Police policy should not immunize the trooper from personal liability.
Unlike cases where police misconduct occurred while officers were on
duty, see Cox, 107 N.E.3d at 463-64, Burton urges this Court to find that no
nexus of employment existed in this case because there was a complete
divorce in time and activity between the end of Benner’s shift and the
accident. For the reasons expressed below, we agree with the State that
Benner’s involvement in the accident was not “clearly outside” the scope
of his employment.

   The undisputed evidence in this case indicates Trooper Benner
complied with the vast majority of State Police procedures for operating
his police commission while off duty. His “conduct [was] of the same
general nature as that authorized, or incidental to the conduct authorized”
by the State Police, Bushong, 790 N.E.3d at 473 (quoting Celebration
Fireworks, 727 N.E.2d at 453), and included maintaining radio contact and
conforming to a dress code. Additionally, as the trial court observed,
Benner’s presence on the road and his ability to respond to nearby
emergency situations undoubtably provided a benefit to the State Police
through increased police presence on the roads. This ability to suddenly
become available for official duties certainly “furthers his employer’s
business.” Id. (citation omitted). Compare with Cox, 107 N.E.3d at 462
(“[T]ortious acts are not within the scope of employment when they flow
from a course of conduct that is independent of activities that serve the
employer”).




Indiana Supreme Court | Case No. 19S-CT-00549 | March 3, 2020       Page 7 of 9
    To the extent Burton argues Trooper Benner’s violation of traffic laws
exposed him to personal liability under the ITCA, we disagree.4 True,
State Police policy expressly prohibits violation of traffic laws, but in our
view, the violation in this case did not move Benner “clearly outside” the
scope of his employment. Recall that the scope of employment “may
include acts that the employer expressly forbids” or “that violate the
employer’s rules, orders, or instruction.” Cox, 107 N.E.3d at 461. While
State Police policy forbids speeding in non-emergency situations,
speeding could “naturally or predictably arise” from driving a
commission even while off duty. See id. at 461-62. The “clearly outside”
standard set forth in Indiana Code section 34-13-3-5(c)(2) represents a high
bar and, in this case, we are not convinced that bar has been cleared.

   To be sure, there is no precise formula to determine whether an act is
“clearly outside” the scope of employment. There could certainly be
circumstances that would oblige such a finding, but given the evidence
presented in this case, we cannot say Trooper Benner was acting clearly
outside the scope of his employment.


Conclusion
   We find that there is no genuine issue of material fact as to whether
Trooper Benner was acting “clearly outside” the scope of his employment.
As such, the trial court properly granted Benner’s motion for summary
judgment on this issue.

    The judgment of the trial court is affirmed.




4 The speed limit in the area of the accident was fifty-five miles per hour. Although conflicting
testimony estimated Benner’s speed at between sixty-two and sixty-five miles per hour before
he began to brake, there is no dispute he was operating his commission beyond the speed
limit while he attempted to pass the other vehicle.



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Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.



ATTORNEYS FOR APPELLANT
Karl L. Mulvaney
Margaret M. Christensen
Nana Quay-Smith
Bingham Greenbaum Doll, LLP
Indianapolis, Indiana

R.T. Green
Kellie C. Clark
Collin W. Green
Blackburn & Green
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana




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