                                                                            FILED
                                                                       Oct 17 2019, 10:13 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEE
David C. Kolbe                                             WHITKO COMMUNITY SCHOOL
Warsaw, Indiana                                            CORPORATION
                                                           David A. Izzo
                                                           Carmel, Indiana
                                                           ATTORNEY FOR APPELLEE
                                                           TOWN OF SOUTH WHITLEY,
                                                           INDIANA
                                                           Robert T. Keen, Jr.
                                                           Barrett McNagny LLP
                                                           Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Courtney Weikart, Ruth                                     October 17, 2019
Weikart, and Kevin Weikart,                                Court of Appeals Case No.
Appellants-Plaintiffs,                                     19A-CT-1224
                                                           Appeal from the Whitley Circuit
        v.                                                 Court
                                                           The Honorable Matthew J.
Whitko Community School                                    Rentschler, Judge
Corporation and Town of South                              Trial Court Cause No.
Whitley, Indiana,                                          92C01-1901-CT-8
Appellees-Defendants



Baker, Judge.

Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019                            Page 1 of 9
[1]   Courtney, Ruth, and Kevin Weikart filed a lawsuit against the Whitko

      Community School Corporation (the School) and the Town of South Whitley,

      Indiana (the Town), after a school resource officer allegedly failed to report

      Courtney’s allegation that she had twice been gang raped. The Appellees filed

      a motion to dismiss for failure to state a claim, which the trial court granted,

      finding as a matter of law that there is no civil cause of action based upon a

      failure to report. The Weikarts appeal, arguing that their complaint makes a

      prima facie case for breach of a special duty by a police officer. Finding no

      error, we affirm.


                                                      Facts
[2]   According to the Weikarts’ complaint, in 2017, Matthew Gilbert was employed

      by the Town as a police officer and by the School as a school resource officer.

      Courtney was a student at the School, and Kevin and Ruth are her parents. In

      2017, Courtney “was twice gang raped and reported each event to Officer

      Gilbert.” Appellants’ App. Vol. II p. 8. Officer Gilbert told Courtney and Ruth

      that he had notified the Kosciusko and Whitley County Sheriff’s Departments

      about the alleged assaults and was “working on it.” Id. But in fact, Officer

      Gilbert did not report the alleged assaults to the Sheriff’s Departments.


[3]   At some point, Officer Gilbert’s failure to report the alleged assaults was

      discovered and he was charged with Class B misdemeanor failure to make a




      Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019        Page 2 of 9
      report.1 Regional media reported on the criminal charge,2 and as a result, the

      Weikarts “were subject to public disclosure of the events and suffered great

      emotional stress.” Id. Courtney, in particular, has suffered nightmares,

      emotional trauma, fear, anger, and post-traumatic stress disorder, and has

      required medication and psychiatric therapy as a result.


[4]   On January 7, 2019, the Weikarts sued the Appellees. In addition to the above-

      described facts, the complaint also contains the following allegation: “Officer

      Gilbert obtained information from [Courtney] with regard to drug activity. The

      public exposure of the gang rape[s] also resulted in the likelihood of exposure of

      the information she provided to Officer Gilbert regarding drug activity, and the

      persons there engaged, which has potentially placed her well being in danger

      and greatly compounded her emotional trauma and stress.” Id. at 8-9. With

      regard to the legal claim, the complaint alleges that “Officer Gilbert was

      carrying out his employer-conferred duties, which he willfully abused such that

      Defendants are liable pursuant to the doctrine of respondeat superior.” Id. at 9.




      1
       Indiana Code section 31-33-5-1 requires individuals “who ha[ve] reason to believe that a child is a victim of
      child abuse or neglect” to report their suspicions to the Department of Child Services (DCS) or a local law
      enforcement agency. Indiana Code section 31-33-5-2(b), in turn, requires that an individual who is an
      employee of a public institution, agency, or school to report their suspicions either to DCS or the local law
      enforcement agency and to their employer. The failure to make a report as required by those statutes is a
      Class B misdemeanor. I.C. § 31-33-22-1.
      2
        It does not appear that the media reporting included Courtney’s name, but somehow, her involvement in
      the situation became publicly known.

      Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019                               Page 3 of 9
[5]   On March 26, 2019, the Town filed a Trial Rule 12(B)(6) motion to dismiss the

      complaint; the School later joined the motion. On May 1, 2019, the trial court

      granted the motion to dismiss. In relevant part, it found as follows:


              1.       Plaintiffs’ claim is predicated on a police officer’s failure to
                       report events allegedly relayed to him by the then-minor-
                       child Plaintiff. Plaintiffs seek to have Officer Gilbert’s
                       employers held responsible for ensuing damage via the
                       legal doctrine of respondent [sic] superior.


              2.       Indiana’s caselaw consistently holds that there is no civil
                       cause of action based upon this failure to report. This
                       Court is bound to follow precedent.


                                                        ***


              4.       Here, Plaintiffs claim in their Response that their action is
                       one for “failure to execute law enforcement duties.” The
                       attempt to distinguish their case as something more than
                       failure to report is unconvincing.


              5.       This Court finds that Plaintiffs’ claim cannot be
                       sufficiently divorced from the failure to report so as to
                       constitute an independent and cognizable cause of action.


      Appealed Order p. 1-2 (internal citations omitted). The Weikarts now appeal.


                                    Discussion and Decision
[6]   The Weikarts argue that the trial court erred by granting the Appellees’ motion

      to dismiss for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). A

      Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which

      Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019                Page 4 of 9
      relief can be granted tests the legal sufficiency of a claim rather than the

      supporting facts. Gasbi, LLC v. Sanders, 120 N.E.3d 614, 617 (Ind. Ct. App.

      2019), trans. denied. In considering the trial court’s ruling on the motion to

      dismiss, we view the complaint in the light most favorable to the non-movant

      and draw every reasonable inference in favor of that party. Id. Dismissal is

      proper if it is apparent that the facts alleged in the complaint are incapable of

      supporting relief as a matter of law under any set of circumstances. Id. In

      making this determination, we look only to the complaint and may not resort to

      any other evidence in the record. Id.


[7]   The Weikarts concede that there is no private civil cause of action against a

      person who fails to report child abuse or neglect. E.g., Sprunger v. Egli, 44

      N.E.3d 690, 693 (Ind. Ct. App. 2015). They argue, however, that their

      complaint is not based on Officer Gilbert’s failure to make a report; instead,

      they insist that it is based upon his “breach of special duty” as a law

      enforcement officer. Appellants’ Br. p. 9.


[8]   Initially, we note that this is the first time the Weikarts have raised this

      argument. Neither their complaint nor their response to the Appellees’ motion

      to dismiss includes a claim that Officer Gilbert breached a special duty.

      Therefore, they have waived this argument. E.g., Pardue v. Smith, 875 N.E.2d

      285, 289-90 (Ind. Ct. App. 2007) (noting that appellants may not change their

      theory on appeal).




      Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019           Page 5 of 9
[9]   Waiver notwithstanding, the heart of this argument is the Weikarts’ new claim

      that Officer Gilbert “owed a duty, special to Courtney, to carry out his police

      duties and to protect her informant activities from public disclosure.”

      Appellants’ Br. p. 11. In support of their argument, they direct our attention to

      Estate of Tanasijevich v. City of Hammond, 178 Ind. App. 669, 383 N.E.2d 1081

      (1978). In that case, the plaintiff’s real estate was vandalized after he provided

      law enforcement with information about local gang activity. This Court

      considered the question of duty, observing that the police owed the plaintiff a

      duty to prevent the criminal acts to his property but finding that “this duty is a

      [g]eneral duty which the police owe to all members of the public,” which does

      not give rise to liability. Id. at 673, 338 N.E.2d at 1083. The Court then turned

      to whether the police owed the plaintiff a “special duty” in that case:


              Only when a [s]pecial duty is owed to an individual by the police
              will the employing governmental unit be held liable for damages
              to that individual which flow from the breach of duty. To be a
              [s]pecial duty, a duty must be particularized as to an individual.
              In particular circumstances a governmental unit or its subservient
              police force can, by its conduct, narrow an obligation which it
              owes to the general public into a Special duty to an individual.


      Id. at 673, 338 N.E.2d at 1084 (internal citations omitted). Ultimately, the

      Tanasijevich Court held that “subsequent to a citizen’s collaboration with police

      in the investigation of criminal activities, a [s]pecial duty to protect that

      individual from criminal retaliation may arise if that danger appears reasonably

      likely to occur.” Id. at 674, 383 N.E.2d at 1084.



      Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019            Page 6 of 9
[10]   We find Tanasijevich readily distinguishable from the case before us because

       there are no factual allegations here tending to suggest a special relationship

       between Courtney and Officer Gilbert. The complaint does not allege that

       Officer Gilbert solicited Courtney to be an “informant.” Appellant’s Br. p. 10,

       11. Instead, it merely states that he “obtained information” from her “with

       regard to drug activity.” Appellants’ App. Vol. II p. 8. 3 Unlike in Tanasijevich,

       therefore, none of Officer Gilbert’s alleged actions narrowed his general public

       duty into a specific one owed to Courtney.


[11]   The Weikarts concede that there is no private right of action stemming from a

       failure to report. And even if they had not waived their argument related to a

       “special duty,” they have failed to show as a matter of law that such a duty

       existed in this case. Consequently, the trial court did not err by granting the

       Appellees’ motion to dismiss.


[12]   The judgment of the trial court is affirmed.


       Kirsch, J., concurs.
       Crone, J., concurs with a separate opinion.




       3
         We also note that even if Courtney was acting as some kind of informant, it is not at all clear from the
       complaint how that relates to Officer Gilbert’s obligation to report the alleged rapes. Similarly, the complaint
       does not allege that the Town or the School failed to protect Courtney from any adverse consequences of her
       alleged status as an informant.

       Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019                                Page 7 of 9
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Courtney Weikart, Ruth                                     Court of Appeals Case No.
       Weikart, and Kevin Weikart,                                19A-CT-1224

       Appellants-Plaintiffs,

               v.

       Whitko Community School
       Corporation and Town of South
       Whitley, Indiana,
       Appellees-Defendants



       Crone, Judge, concurring.


[13]   I concur because the Weikarts have stipulated that there is no private civil cause

       of action against a person who fails to report child abuse and because they have

       waived their “special duty” argument by raising it for the first time on appeal. I

       do so reluctantly, however, because the Indiana Supreme Court has not

       definitively held that the child abuse reporting statutes do not confer a private

       civil cause of action, and the school resource officer’s egregious violations of

       those statutes in the context of his special relationship with C.W. call out for a

       Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019                   Page 8 of 9
       remedy for the injuries to her person and reputation as promised by Article 1,

       Section 12 of the Indiana Constitution.


[14]   This child was victimized by two horrible sexual assaults, and when Officer

       Gilbert failed to help her, she was victimized once again by the publicity

       surrounding his arrest. I have great respect for law enforcement officers, and

       they are often faced with difficult split-second decisions that can have life-or-

       death consequences for which they should not and do not incur civil liability.

       This was not one of those situations.


[15]   I apologize to this child and her family for being neither learned enough nor

       wise enough to think of an adequate remedy for them given the current state of

       our law, which leaves the constitutional promise of a remedy unfulfilled. It is

       not right, and I hope one day it will change.




       Court of Appeals of Indiana | Opinion 19A-CT-1224 | October 17, 2019        Page 9 of 9
