                                                                        FILED
                                                                   Jun 10 2020, 11:02 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Natalie F. Weiss                                           Eric S. Pavlack
Deputy Attorney General                                    Colin E. Flora
Indianapolis, Indiana                                      Pavlack Law, LLC
Frances Barrow                                             Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana, Indiana                                  June 10, 2020
Department of Environmental                                Court of Appeals Case No.
Management, Indiana State                                  19A-CT-587
Department of Health, et al.,                              Appeal from the Lake Superior
Appellants-Defendants,                                     Court
                                                           The Honorable Nanette K.
        v.                                                 Raduenz, Special Judge
                                                           Trial Court Cause No.
Cristobal Alvarez, C.A. by next                            45D05-1803-CT-3
friend Cristobal Alvarez, et. al.,
Appellees-Plaintiffs



May, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020                            Page 1 of 20
[1]   The State of Indiana, the Indiana Department of Environmental Management

      (“IDEM”), and the Indiana State Department of Health (“ISDH”) (collectively,

      “State Defendants”) appeal the trial court’s order denying their motion for

      judgment on the pleadings. State Defendants raise four issues for our review,

      which we restate as the following three issues:


          i.       Whether the Indiana Tort Claims Act immunizes the State

                   Defendants;


          ii.      Whether Plaintiffs’ claims are barred by the statute of limitations; and


          iii.     Whether Plaintiffs pled facts sufficient to state a claim for intentional

                   infliction of emotional distress.


      We affirm.



                              Facts and Procedural History                                   1




[2]   In the late-1960s, the City of East Chicago decided to build a large-scale public

      housing complex that became the West Calumet Housing Complex

      (“Complex”). The City built the Complex in an industrial area. The land was

      formerly occupied by the Anaconda Lead Products Company and surrounded

      by other lead smelting operations. Carrie Gosch Elementary School, which the




      1
       Given the procedural posture of this case, our recitation of the facts assumes all facts pled in the complaint
      are true. See Murray v. City of Lawrenceburg, 925 N.E.2d 728, 729 (Ind. 2010).

      Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020                                    Page 2 of 20
      City built in 1958 on land formerly occupied by U.S. Smelter and Lead

      Refinery, Inc., was located near the Complex. In the late 1990s, the City

      constructed a new building for Carrie Gosch Elementary on land behind the site

      of the original building.


[3]   In 1985, IDEM found lead contaminated soil near the Complex, and ISDH

      learned that children who lived at the Complex had high levels of lead in their

      blood. ISDH and IDEM performed further testing and sampling in 1997,

      which also revealed lead contaminated soil around the Complex and elevated

      levels of lead in the blood of children living in the Complex. However, none of

      the State Defendants notified the residents of the Complex or the parents of

      students at Carrie Gosch Elementary of the elevated lead levels.


[4]   In 1985, the Environmental Protection Agency (“EPA”) began testing the land

      on which the Complex and Carrie Gosch Elementary were built and addressing

      contamination. In 1993, the EPA entered into an administrative order of

      consent with U.S. Smelter and Lead Refinery, Inc, designating the area as a

      Superfund site 2 in need of environmental remediation. On September 3, 2014,

      the United States and the State of Indiana filed a complaint against the Atlantic

      Richfield Company (“Richfield”) and the E.I. Du Pont De Nemours and




      2
       The Hazardous Substance Superfund is a trust fund established to carry out the purposes of the
      Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). 26
      U.S.C. § 9507. The purpose of CERCLA is to hold polluters responsible for the problems caused by their
      disposal of hazardous chemicals and make the polluters “bear the costs and responsibility for remedying the
      harmful conditions they created.” In re: Tutu Water Wells CERCLA Litigation, 326 F.3d 201, 206 (3rd Cir.
      2003), cert. denied, 540 U.S. 984 (2003).

      Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020                                Page 3 of 20
      Company (“Du Pont”), two entities that either operated or were successors in

      interest to companies that operated on or around the land where the Complex

      was built. The government filed a proposed consent decree on the same day it

      filed the lawsuit. On or about October 28, 2014, the EPA reached a $26 million

      settlement with the companies to provide cleanup costs.


[5]   On July 6, 2016, the EPA sent a flyer to Complex residents notifying them that

      high levels of lead had been found in yards in the Complex. On July 25, 2016,

      East Chicago Mayor Anthony Copeland sent a letter to residents of the

      Complex advising them that the land was contaminated with lead. The letter

      directed residents to move as soon as possible. On December 4, 2017, Cristobal

      Alvarez and over three hundred other former residents of the Complex

      (“Plaintiffs”) filed suit against the City of East Chicago, the East Chicago

      Housing Authority, the East Chicago Department of Public and Environmental

      Health, and the School City of East Chicago (collectively, “City Defendants”),

      and the State Defendants. Count III of the complaint alleges negligence. 3 It

      states the State Defendants and the East Chicago Department of Public &

      Environmental Health “owed a duty of reasonable care to the Plaintiffs,

      including without limitation the duty to warn the Plaintiffs of known risks to

      their health that had the potential to cause serious, life-altering injuries.” (App.

      Vol. III at 73.) Further, Count III alleges:




      3
          Counts I and II do not contain any allegations against State Defendants.


      Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020               Page 4 of 20
              112. These Defendants each knew that the soil and air in and
              around the Complex and Carrie Gosch Elementary School were
              contaminated with dangerous levels of lead, arsenic, and/or
              other hazardous substances.


                                                     *****


              119. These Defendants took no action to inform the Plaintiffs or
              otherwise to safeguard them from the dangerous condition.


              120. Each Defendant actually knew or should have known that
              lead and other hazardous particles have the potential to cause
              serious harm to the Plaintiffs.


              121. As a direct and proximate result of each Defendant’s
              breaches of its duties, Plaintiffs have suffered and continue to
              suffer financial, physical, mental, and emotional damages.


      (Id. at 74-75.) Count IV alleges the State Defendants committed intentional

      infliction of emotional distress. Count V alleges negligent infliction of

      emotional distress.


[6]   On July 9, 2018, State Defendants filed a motion for judgment on the pleadings.

      State Defendants argued that they were immune from suit pursuant to the

      Indiana Tort Claims Act (“ITCA”), that Plaintiffs’ suit was barred by the

      statute of limitations, and that the Plaintiffs failed to state a claim for

      intentional infliction of emotional distress. The trial court held a hearing on

      State Defendants’ motion and denied the motion. The trial court certified the

      order for interlocutory appeal, and we accepted jurisdiction on April 12, 2019.


      Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020              Page 5 of 20
                                  Discussion and Decision
[7]   Our review of a judgment on the pleadings is de novo. Loomis v. Ameritech Corp.,

      764 N.E.2d 658, 661 (Ind. Ct. App. 2002), reh’g denied, trans. denied. Such a

      motion “tests the sufficiency of the complaint to state a redressable claim” and

      should be granted “only when it is clear from the pleadings that the non-moving

      party cannot in any way succeed under the facts and allegations therein.” Circle

      Centre Dev. Co. v. Y/G Indiana, L.P., 762 N.E.2d 176, 178 (Ind. Ct. App. 2002),

      trans. denied. We look solely to the pleadings and accept all well-pleaded facts

      as true. Id. The moving party is deemed to have admitted those facts in favor

      of the non-moving party and we will draw all reasonable inferences in the non-

      moving party’s favor. Id. “When the pleadings present no material issues of

      fact and the facts shown by the pleadings clearly entitle a party to judgment, the

      entry of judgment on the pleadings is appropriate.” Book v. Hester, 695 N.E.2d

      597, 599 (Ind. Ct. App. 1998).


                                       1. Indiana Tort Claim Act
                                    A. Discretionary Function Immunity

[8]   In 1974, the Indiana General Assembly passed the ITCA, which “granted

      absolute immunity to governmental entities in a number of specific

      circumstances, and codified rules of liability for other areas of governmental

      activity.” Gary Cmty. Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224, 1227 (Ind.

      2009). The ITCA immunities are listed in Indiana Code section 34-13-3-3,

      including an immunity for the performance of discretionary functions. Ind.


      Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020         Page 6 of 20
       Code § 34-13-3-3(7) (“A governmental entity or an employee acting within the

       scope of the employee’s employment is not liable if a loss results from the

       following: . . .The performance of a discretionary function[.]”).


[9]    The Indiana Supreme Court has adopted a planning-operational test to

       determine if an act qualifies as a discretionary function under the ITCA. Jurich

       v. Ind. Dep’t. of Transp., 126 N.E.3d 846, 856 (Ind. Ct. App. 2019).


               Planning functions involve the formulation of basic policy
               characterized by official judgment, discretion, weighing of
               alternatives, and public policy choices. On the other hand,
               operational functions involve the execution or implementation of
               already formulated policy.


       Lee by & through Estes v. Bartholomew Consol. Sch. Corp., 75 N.E.3d 518, 526 (Ind.

       Ct. App. 2017) (internal quotation marks and citations omitted). Planning

       functions are discretionary and shielded from liability under the ITCA. Id.

       However, operational functions are not shielded from liability. Id.


[10]   Whether an act is discretionary is a question of law. City of Beech Grove v. Beloat,

       50 N.E.3d 135, 138 (Ind. 2016). The governmental entity claiming discretionary

       function immunity bears the burden of demonstrating an act was a planning

       function as opposed to an operational function. Id. The planning-operational

       “test is designed to ‘insulate [ ] only those significant policy and political

       decisions which cannot be assessed by customary tort standards.’” Id. (quoting

       Peavler v. Bd. of Comm’rs of Monroe Cty., 528 N.E.2d 40, 45 (Ind. 1988)).




       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020            Page 7 of 20
[11]   State Defendants argue the decision of when and how to warn citizens of

       possible lead exposure is a discretionary function. The State Defendants note

       that unlike the placement of traffic signals, which the government is statutorily

       required to perform pursuant to Indiana Code section 9-21-4-1, there is not a

       statutory duty “to notify citizens about exposure to toxic waste[.]” (Appellants’

       Br. at 18.) While there is not an Indiana case determining whether warning

       citizens about exposure to hazardous chemicals is a discretionary function

       under the ITCA, State Defendants direct us to a decision interpreting a similar

       provision of the Federal Tort Claims Act (“FTCA”).


[12]   In Cisco v. United States, the Seventh Circuit analyzed whether an action brought

       by homeowners against the EPA regarding the EPA’s alleged failure to warn

       the homeowners that contaminated dirt had been used as residential landfill

       was barred by the discretionary function exception to the FTCA. 768 F.2d 788,

       788 (7th Cir. 1985). The Seventh Circuit held:


               In deciding not to warn Cisco about the contaminated landfill
               and in deciding not to remove the contaminated dirt from the
               landfill, the EPA made political, social and economic judgments
               pursuant to its grant of authority. Cisco may not challenge those
               judgments under the FTCA because they fall within the
               discretionary function exception of 28 U.S.C. § 2680.


       Id. at 789-90. State Defendants contend that like the EPA’s actions in Cisco, the

       State Defendants’ decision not to warn residents about high lead levels in the

       soil was a discretionary function because it required the State Defendants to

       make political, social, and economic judgments.

       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020         Page 8 of 20
[13]   However, federal courts do not apply the planning-operational test in evaluating

       discretionary function immunity under the FTCA. See Childers v. United States,

       841 F. Supp. 1001, 1019 (D. Mont. 1993) (noting the United States Supreme

       Court’s rejection of the planning-operational test), judgment aff’d, 40 F.3d 973

       (9th Cir. 1995), cert. denied, 514 U.S. 1095 (1995). In addition, the FTCA is

       interpreted more broadly in favor of immunity than the ITCA. Compare Robb v.

       United States, 80 F.3d 884, 887 (4th Cir. 1996) (“The FTCA, as a waiver of

       sovereign immunity, is strictly construed, and all ambiguities are resolved in

       favor of the sovereign.”), with Beloat, 50 N.E.3d at 138 (“Moreover, this Court

       has cautioned that discretionary immunity must be narrowly construed because

       it is an exception to the general rule of liability.” (internal quotation marks

       omitted)). Under the ITCA, the governmental entity bears the burden of

       demonstrating the applicability of discretionary function immunity. Beloat, 50

       N.E.3d at 138. Whereas under the FTCA, the plaintiff bears the burden of

       proving the government entity’s conduct does not fall within the discretionary

       function immunity. Pieper v. United States, 713 Fed. Appx. 137, 139 (4th Cir.

       2017). Therefore, we are not persuaded by the State Defendants’ analogy to the

       FTCA.


[14]   State Defendants also argue “the nature of State Defendants’ conduct, the effect

       on governmental operations and the capacity of the court to evaluate the

       propriety of the government’s action shows that the alleged failure to warn

       Plaintiffs of the contamination is a discretionary function.” (Appellants’ Br. at

       23.) State Defendants contend the decision to warn the public about

       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020           Page 9 of 20
       contamination involves weighing budget concerns and assessing priorities.

       State Defendants maintain that, if they are overaggressive in warning about

       environmental dangers, it could “cause havoc[.]” (Id. at 25.) However, the

       complaint does not allege any conscious balancing of risks and benefits by the

       State Defendants; nor does it allege the State Defendants engaged in a decision-

       making process. Rather, the complaint alleges negligent passivity. (See App.

       Vol. III at 74 (“These Defendants took no action to inform the Plaintiffs or

       otherwise to safeguard them from the dangerous condition.”).)


[15]   Discretionary function immunity does not protect a governmental entity from

       liability “when no policy-oriented decision-making process has been

       undertaken.” Boyland v. Hedge, 58 N.E.3d 928, 934 (Ind. Ct. App. 2016).

       Therefore, we cannot say as a matter of law, based solely on the pleadings, that

       warning citizens of possible lead exposure is a planning function. The trial

       court did not err in denying State Defendants’ motion for judgment on the

       pleadings regarding discretionary function immunity. See Birge v. Town of

       Linden, 57 N.E.3d 839, 845 (Ind. Ct. App. 2016) (holding town not entitled to

       dismissal based on discretionary function immunity under the ITCA).


                                        B. Vicarious Liability Immunity

[16]   The ITCA also grants governmental entities immunity for acts or omissions “of

       anyone other than the governmental entity or the governmental entity’s

       employee.” Ind. Code § 34-13-3-3(10). State Defendants argue they cannot be

       held liable where the duty to notify the Plaintiffs of the presence of toxic

       chemicals in the soil fell to the City Defendants. However, the complaint
       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020          Page 10 of 20
       alleges both the City Defendants and the State Defendants were aware that

       Complex residents and students at Carrie Gosch Elementary were being

       exposed to toxic substances, yet none of the defendants warned the Plaintiffs or

       took steps to reduce exposure. Even though the complaint alleges tortious

       conduct by both the State Defendants and the City Defendants, the Plaintiffs

       allege the State Defendants are liable for their own actions. Therefore, the State

       Defendants are not entitled to judgment on the pleadings on the ground of

       vicarious liability immunity. See Gary Cmty. Sch. Corp. v. Boyd, 890 N.E.2d 794,

       801 (Ind. Ct. App. 2008) (holding school corporation not immune because the

       complaint alleged negligence on the part of the school corporation not a third

       party), trans. denied.


                                          2. Statute of Limitations
                                                 A. Under Statute

[17]   The State Defendants argue that 109 of the 315 plaintiffs (those who turned 18

       years old before December 4, 2015) are barred from filing this lawsuit. Indiana

       Code section 34-11-2-4 provides that a personal injury action must be

       commenced within two years of when the cause of action accrues. “Under the

       discovery rule, a cause of action accrues and the statute of limitations begins to

       run when the plaintiff knew or, in the exercise of ordinary diligence, could have

       discovered that an injury had been sustained as a result of the tortious act of

       another.” DiMaggio v. Rosario, 52 N.E.3d 896, 905 (Ind. Ct. App. 2016), reh’g

       denied, trans. denied. “For a cause of action to accrue, it is not necessary that the

       full extent of the damage be known or even ascertainable but only that some

       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020           Page 11 of 20
       ascertainable damage has occurred.” Doe v. United Methodist Church, 673

       N.E.2d 839, 842 (Ind. Ct. App. 1996), trans. denied. Statutes of limitation “are

       practical and pragmatic devices to spare the courts from litigation of stale

       claims, and the citizen from being put to his defense after memories have faded,

       witnesses have died or disappeared, and evidence has been lost.” Perryman v.

       Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006).


[18]   State Defendants argue Complex residents knew or should have known about

       elevated lead levels and exposure more than two years before the Plaintiffs

       sued.4 State Defendants contend that the designation of the area as a Superfund

       site should have alerted the Plaintiffs to contamination and possible exposure to

       toxic substances. We will dismiss a complaint at the pleading stage as barred

       by the statute of limitations only if the complaint states facts that, on their face,

       indicate the complaint was filed after the statute of limitations period expired.

       Chenore v. Plantz, 56 N.E.3d 123, 126 (Ind. Ct. App. 2016). However, when the

       complaint states facts indicating the plaintiffs may prevail on a claim

       notwithstanding the statute of limitations, the question of when the plaintiffs



       4
         In their reply brief, the State Defendants ask us to rely on the truth of certain statements made in the
       consent decree and attachments to the decree entered in United States v. Atlantic Richfield Co., 2:14-cv-312
       (N.D. Ind. 2014). The Plaintiffs have moved to strike these portions of the State Defendants’ reply brief.
       However, our inquiry is focused on whether the complaint states any set of facts under which the Plaintiffs
       could succeed. See Columbus Specialty Surgery Ctr. v. Se. Indiana Health Org., Inc., 22 N.E.3d 665, 669 (Ind. Ct.
       App. 2014) (“the motion for judgment on the pleadings should be granted only where it is clear from the face
       of the complaint that under no circumstances could relief be granted”). The State Defendants’ citations to
       facts stated in the consent decree are not relevant to this inquiry. Therefore, we do not rely upon the facts
       stated in the consent decree and cited in the State Defendants’ reply brief to resolve this appeal, and by
       separate order, we deny the Plaintiffs’ motion to strike as moot. See Holland v. Ind. Farm Bureau Ins., 110
       N.E.3d 369, 371 n.2 (Ind. Ct. App. 2018) (denying motion to strike as moot due to the disposition of the
       appeal).

       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020                                   Page 12 of 20
       discovered or should have discovered their harm becomes a factual dispute and

       the claims should not be dismissed. Id. For a claim to accrue, the plaintiff must

       be “informed of a reasonable possibility, if not a probability that an injury was

       sustained as a result of the tortious act of another[.]” Reed v. City of Evansville,

       956 N.E.2d 684, 691 (Ind. Ct. App. 2011) (internal quotation marks omitted),

       trans. denied. Further, “a person’s mere suspicion or speculation as to causation

       of an injury is insufficient to trigger accrual.” Id. (internal quotation marks

       omitted).


[19]   Plaintiffs maintain that they did not realize there was a reasonable probability

       of harm until Mayor Copeland sent the July 2016 letter advising the Complex

       residents to move. In their complaint, the Plaintiffs state:


               71. Prior to the letter, each Plaintiff did not know that he or she
               had been exposed to hazardous levels of lead or other toxins at
               the Complex.


               72. Prior to the letter, each Plaintiff did not know that he or she
               had been injured by his or her exposure to hazardous levels of
               lead or other toxins at the Complex.


                                                      *****


               77. As the July 6, 2016 EPA flyer acknowledged, “Lead is a
               naturally occurring heavy metal. It is commonly found at low
               levels in soil. Low levels of lead can be found in the air, water,
               food and dust in cities because of the widespread use of lead in
               man-made products. The federal government regulates the
               amount of lead in the air, water and soil. The levels of lead at the


       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020              Page 13 of 20
               West Calumet Housing Complex are much higher than normal
               levels because of past industrial operations at the property.”


               78. The mere knowledge of lead in the soil meant nothing absent
               an understanding that the levels were dangerous to human health
               and wellbeing.


       (App. Vol. III at 68-69.) Therefore, the complaint alleges the Plaintiffs did not

       recognize that living at the Complex was dangerous because of the high level of

       lead contamination until July 2016.


[20]   In Rolan v. Atlantic Richfield Co., residents of the West Calumet Housing

       Complex filed suit against Richfield and Du Pont. No. 1:16-CV-357-TLS, 2017

       WL 3191791, at *1 (N.D. Ind. July 26, 2017). One of the defendants moved to

       dismiss the suit on the ground that it was barred by the statute of limitations. Id.

       at *11. However, the district court denied the company’s motion. Id. at *12.

       The court stated, “Although the Plaintiffs knew as early as 2012 that the

       Defendants’ conduct was the reason for the clean-up, they did not know or

       have reason to suspect that the Defendants’ conduct had harmed them in any

       tangible way.” Id. According to the allegations in the Rolan complaint, the

       summer of 2016 was the first time a government entity advised the Complex

       residents to relocate. Id. The court further stated that determining whether the

       plaintiffs knew or should have known that their claims accrued more than two

       years prior to filing suit is a “factually intensive endeavor” inappropriate for a

       motion to dismiss. Id.




       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020          Page 14 of 20
[21]   State Defendants attempt to distinguish Rolan by arguing the Plaintiffs in the

       case at bar did not have to understand the full extent of their harm for their

       claim to accrue. However, the EPA flyer quoted in the present complaint notes

       a low level of lead exposure is unavoidable and not cause for alarm. Therefore,

       we hold the facts stated in the complaint do not demonstrate it is untimely. See

       Chenore, 56 N.E.3d at 126 (holding complaint should not be dismissed pursuant

       to Trial Rule 12(B)(6) because Plaintiff alleged facts that statute of limitations

       period was equitably tolled).


                                               B. Issue Preclusion

[22]   State Defendants also contend the doctrine of issue preclusion prohibits the 109

       plaintiffs from suing because Complex residents attempted to intervene in

       United States v. Atlantic Richfield Company, but their motion to intervene was

       denied. 324 F.R.D. 187, 2018 WL 798188 (N.D. Ind. 2018).


               The doctrine of res judicata prevents the repetitious litigation of
               that which is essentially the same dispute. The principle of res
               judicata is divided into two branches: claim preclusion and issue
               preclusion. Claim preclusion applies where a final judgment on
               the merits has been rendered which acts as a complete bar to a
               subsequent action on the same issue or claim between those
               parties and their privies.


       French v. French, 821 N.E.2d 891, 896 (Ind. Ct. App. 2005) (internal citations

       omitted), reh’g denied.


[23]   Similarly, issue preclusion, also known as collateral estoppel, “bars the

       subsequent litigation of a fact or issue that was necessarily adjudicated in a

       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020          Page 15 of 20
       former lawsuit if the same fact or issue is presented in [a] subsequent lawsuit.”

       Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 696 (Ind. Ct. App. 2013), trans.

       denied. However, the “former adjudication is conclusive only as to those issues

       that were actually litigated and determined therein. Thus, issue preclusion does

       not extend to matters that were not expressly adjudicated and can be inferred

       only by argument.” Id. (internal citation omitted). We consider the following

       factors in deciding whether issue preclusion should apply: “(1) privity, (2) the

       defendant’s incentive to litigate the prior action, and (3) the ability of the

       plaintiff to have joined the prior action.” Id.


[24]   In United States v. Atlantic Richfield Company, the United States and the State of

       Indiana filed a complaint in federal court in 2014 against Richfield and Du

       Pont, and the governments filed a proposed consent decree on the same day.

       324 F.R.D. at 190. After a hearing in the fall of 2014, the court approved the

       consent decree, entered judgment, and closed the case. Id. On November 1,

       2016, Complex residents filed a motion to intervene because of the lack of

       progress made by the EPA in cleaning up the area. Id. The court noted that the

       residents filed suit more than two years after the lawsuit against the two

       companies had been closed. Id. at 192. Further, the residents were put on

       notice that their rights might be impaired as a result of the lawsuit because the

       EPA mailed notices to Complex residents before filing suit, held public

       meetings, and filed documents regarding contamination of the Complex in

       court. Id. Also, the court noted that the original litigating parties in the lawsuit

       would be prejudiced if the court allowed the residents to intervene and that

       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020           Page 16 of 20
       allowing the residents to intervene would be impractical. Id. at 193. Therefore,

       the court denied the Complex residents’ motion to intervene. Id. at 195.


[25]   We note the considerations in determining whether to allow intervention in a

       federal lawsuit are different from those determining whether the statute of

       limitations bars suit. In deciding whether to allow intervention pursuant to

       Federal Rule of Civil Procedure 24(a), the court considers whether:


                 (1) the application is timely; (2) the applicants have an interest
                 relating to the property or transaction that is the subject of the
                 action; (3) the disposition of the action may impair or impede the
                 applicants’ ability to protect that interest; and (4) no existing
                 party adequately represents the applicant’s interest.


       Id. at 191. Thus, intervention in a federal lawsuit requires a more complex

       balancing of factors than determining whether suit is barred by a statute of

       limitations, which simply involves determining when the plaintiff knew or

       should have known about the harm. See id. (Whether to allow intervention is

       not “a binary inquiry. Instead . . . it involves digesting various bits of

       information and arriving at a reasonable conclusion[.]”) Consequently, the

       statute of limitations issue was not “expressly adjudicated” in United States v.

       Atlantic Richfield Company and the doctrine of issue preclusion does not bar the

       Plaintiffs’ suit. See Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 704-05

       (Ind. Ct. App. 2005) (holding issue preclusion did not bar litigation of unjust

       enrichment claim by plaintiff that was not a party in previous lawsuit), trans.

       denied.



       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020             Page 17 of 20
                       3. Intentional Infliction of Emotional Distress
[26]   To establish a claim of intentional infliction of emotional distress, a plaintiff

       must prove by a preponderance of the evidence “that the defendant: (1)

       engage[d] in extreme and outrageous conduct (2) which intentionally or

       recklessly (3) cause[d] (4) severe emotional distress to another.” Westminster

       Presbyterian Church of Muncie v. Cheng, 992 N.E.2d 859, 870 (Ind. Ct. App.

       2013), trans. denied. “It is the intent to harm one emotionally that forms the

       basis for the tort.” Bradley v. Hall, 720 N.E.2d 747, 752 (Ind. Ct. App. 1999).

       The conduct must be particularly deplorable to meet the extreme and

       outrageous requirement.


               Conduct is extreme and outrageous: ‘only where the conduct has
               been so outrageous in character, and so extreme in degree, as to
               go beyond all possible bounds of decency, and to be regarded as
               atrocious, and utterly intolerable in a civilized community.
               Generally, the case is one in which the recitation of the facts to
               an average member of the community would arouse his
               resentment against the actor, and lead him to exclaim,
               ‘Outrageous!’’


       Conwell v. Beatty, 667 N.E.2d 768, 777 (Ind. Ct. App. 1996) (quoting Restatement

       (Second) of Torts § 46 cmt. d (1965)), reh’g denied. If reasonable persons can differ

       regarding the extremity and outrageousness of certain conduct, then the matter

       should be left to a jury’s determination. See Bradley, 720 N.E.2d at 753

       (reversing grant of summary judgment because “[r]easonable persons may differ

       on the questions of whether Hall’s conduct was extreme and outrageous and, if

       so, whether that conduct caused Bradley to suffer severe emotional distress”).

       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020           Page 18 of 20
[27]   State Defendants argue Plaintiffs fail to allege facts sufficient to state a claim for

       intentional infliction of emotional distress because the alleged conduct of State

       Defendants was not extreme and outrageous. However, as the Plaintiffs note in

       their brief, a civilized society should not be expected to tolerate “a government

       standing silent while knowingly exposing its most-vulnerable citizens to toxic

       substances when reasonable alternatives [exist].” (Appellees’ Br. at 54.) A

       reasonable person could conclude that such conduct, if true, is extreme and

       outrageous. See Mitchell v. Stevenson, 677 N.E.2d 551, 564 (Ind. Ct. App. 1997)

       (holding widow’s disinterring deceased husband’s remains and removing his

       headstone right before husband’s daughter, sister, and mother visited the grave

       and after widow agreed husband’s daughter would assume primary

       responsibility for maintaining the grave constituted extreme and outrageous

       conduct), trans. denied.


[28]   State Defendants also contend Plaintiffs fail to state a claim for intentional

       infliction of emotional distress because the complaint does not allege any

       intentional action by an individual State actor. Rather, the complaint ascribes

       intent to the State Defendants. However, the case is at the pleading stage, and

       the Plaintiffs have not yet been able to conduct discovery. Discovery will allow

       the Plaintiffs to determine what, if any, individual State employees acted

       intentionally to cause Plaintiffs emotional distress. Additionally, we have

       allowed intentional infliction of emotional distress claims to proceed against

       governmental entities before. See Johnson ex rel. Ind. Dept. of Child Services v.

       Marion Co. Coroner’s Office, 971 N.E.2d 151, 162-63 (Ind. Ct. App. 2012)


       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020            Page 19 of 20
       (holding coroner’s office not entitled to summary judgment because genuine

       issue of material fact existed regarding whether the manner of removing a dead

       body amounted to extreme and outrageous conduct), trans denied. Therefore,

       the trial court did not err in denying the State Defendants’ motion for judgment

       on the pleadings regarding intentional infliction of emotional distress.



                                                 Conclusion
[29]   State Defendants are not entitled to judgment on the pleadings pursuant to the

       ITCA. It is not clear from the face of the complaint that warning the Plaintiffs

       about exposure to dangerous levels of lead was a discretionary function.

       Further, while the Plaintiffs sue both State Defendants and City Defendants,

       the complaint alleges State Defendants are liable for their own acts.

       Additionally, it is not clear from the face of the complaint that the Plaintiffs

       brought the lawsuit outside the statute of limitations period or that their claims

       are barred by issue preclusion. Also, Plaintiffs recite sufficient facts to state a

       claim for intentional infliction of emotional distress. Therefore, we affirm the

       trial court’s denial of State Defendants’ motion for judgment on the pleadings.


[30]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-587 | June 10, 2020           Page 20 of 20
