MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                       FILED
regarded as precedent or cited before any                                         Aug 31 2020, 10:19 am

court except for the purpose of establishing                                           CLERK
                                                                                   Indiana Supreme Court
the defense of res judicata, collateral                                               Court of Appeals
                                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Craig R. Karpe                                           Robert T. Keen, Jr.
Karpe Litigation Group                                   William A. Ramsey
Indianapolis, Indiana                                    Barrett McNagny LLP
                                                         Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sarah Nickolson, et al.,                                 August 31, 2020
Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                         20A-CT-1046
        v.                                               Appeal from the DeKalb Superior
                                                         Court
Tammie Freed,                                            The Honorable Kevin P. Wallace,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         17D01-1705-CT-15



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020               Page 1 of 13
                                          Case Summary
[1]   A vehicle driven by Mataya Nickolson (“Mataya”) collided with a public

      school bus driven by Tammy Freed (“Freed”). Mataya and her parents, Sarah

      Nickolson and Terry Nickolson (at times collectively referred to as “the

      Nickolsons”), brought a negligence claim against Freed in her individual

      capacity. The trial court granted Freed summary judgment on immunity

      grounds and the Nickolsons now appeal. They present the sole restated and

      consolidated issue of whether summary judgment was improvidently granted.

      We affirm.



                            Facts and Procedural History
[2]   In 2016, Freed was employed by Hamilton Community Schools in Dekalb

      County as a school bus driver. Freed was paid on a per diem basis. Her

      primary duty was to transport students, but she had incidental duties such as

      participating in safety training, cleaning her bus, and presenting the bus for

      mandatory State of Indiana inspections. Freed’s route began within two miles

      of her residence, and she was authorized to take the bus home.


[3]   On May 11, 2016, Freed’s supervisor, John Dutton (“Dutton”), instructed her

      to drive her bus, in a clean condition, to an inspection site. Freed completed

      her morning route, and briefly stopped by her residence where she checked the

      condition of the bus and used her garage bathroom. Freed, driving the bus,

      exited her driveway onto County Road 71 at approximately 7:45 a.m.


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 2 of 13
[4]   When Freed was “partially into the road with the front of the bus,” she saw a

      vehicle approaching. (Appellee App. Vol. I, pg. 64.) Freed moved her bus into

      her lane “as far as [she] could” but then “felt the impact.” (Id. at 65.) Mataya’s

      vehicle struck the rear of the bus, at a speed estimated by an accident

      reconstructionist to be sixty-nine miles per hour. Mataya was injured and lacks

      any recollection of the accident details.


[5]   On May 5, 2017, the Nickolsons filed a complaint against Freed, individually,

      alleging that she had negligently operated the bus and caused injury to Mataya.

      The Nickolsons made no allegation that Freed had been acting outside the

      scope of her employment and did not include the school corporation as a

      defendant. Freed filed her answer and asserted as an affirmative defense that

      she had immunity afforded a governmental employee pursuant to Indiana Code

      Section 34-13-3-5 of the Indiana Tort Claims Act (“ITCA”). Freed averred that

      she had been acting within the scope of her employment with Hamilton

      Community Schools at the time of the collision.


[6]   On December 12, 2017, Freed filed a motion for summary judgment, which the

      trial court denied. Freed then unsuccessfully pursued an interlocutory appeal.

      On March 6, 2020, Freed again requested summary judgment in her favor,

      directing the trial court’s attention to a recent Indiana Supreme Court decision

      addressing government employee immunity.1 On April 16, 2020, the trial court




      1
          See Burton v. Benner, 140 N.E.3d 848 (Ind. 2020).


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 3 of 13
      granted Freed summary judgment upon the Nickolsons’ negligence claim. The

      Nickolsons appeal.



                                 Discussion and Decision
                                         Standard of Review
[7]   “The purpose of summary judgment is to terminate litigation about which there

      can be no factual dispute and which may be determined as a matter of law.”

      Bd. of Sch. Comm’rs of City of Indianapolis v. Pettigrew, 851 N.E.2d 326, 330 (Ind.

      Ct. App. 2006). We review the trial court’s grant of summary judgment under a

      well-settled standard:


              The party moving for summary judgment has the burden of
              making a prima facie showing that there is no genuine issue of
              material fact and that the moving party is entitled to judgment as
              a matter of law. Reed v. Reed, 980 N.E.2d 277, 285 (Ind. 2012).
              Once these two requirements are met by the moving party, the
              burden then shifts to the non-moving party to show the existence
              of a genuine issue by setting forth specifically designated facts.
              Id. Any doubt as to any facts or inferences to be drawn
              therefrom must be resolved in favor of the non-moving party. Id.
              Summary judgment should be granted only if the evidence
              sanctioned by Indiana Trial Rule 56(C) shows there is no genuine
              issue of material fact and that the moving party deserves
              judgment as a matter of law. Freidline v. Shelby Ins. Co., 774
              N.E.3d 37, 39 (Ind. 2002).


      Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).




      Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 4 of 13
                                                  Analysis
[8]   The Nickolsons argue that the trial court misconstrued the law and Freed is

      subject to personal liability because of the “coming and going [to work] rule.”

      Appellant’s Brief at 14. “The common law rule in this state is that travel to and

      from work is not considered activity within the scope of employment so as to

      hold the employer liable for injury caused by an employee’s negligence.”

      Dillman v. Great Dane Trailers, Inc., 649 N.E.2d 665, 667 (Ind. Ct. App. 1995).

      The Nickolsons describe Freed’s activities on the morning of the collision as her

      driving the morning route, going home to take a break, and then leaving for

      work.


[9]   When deposed, Freed testified that, with employer permission, she typically

      drove her bus home between morning and afternoon routes, and again after

      completing the afternoon route. She testified that, on the day of the accident in

      particular, she drove the bus back home, looked underneath it to check for mud

      and determine if it needed additional cleaning, decided no further cleaning was

      necessary, took a bathroom break, and then started driving to the bus inspection

      site. Dutton was also deposed, and he confirmed that Freed had been

      instructed to bring the bus, in a clean condition, in for an inspection on that

      day. He testified that he had not specifically instructed her to clean the bus at

      her home, but “it made sense to me that she do that, since it’s right on her way

      to, almost to [the town of] Butler.” (App. Vol. II, pg. 115.) He also explained

      “they took their buses home anyway” because “their routes start right where



      Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 5 of 13
       they live.” (Id.) The school corporation maintained a cleaning area but not

       garage facilities for its buses.


[10]   It is undisputed that Freed had been assigned the express duty of driving the bus

       to an inspection site. She was performing this express duty at the time of the

       accident. Because Freed was required to make the bus available for inspection,

       she was not simply “on her way” to work. The uncontroverted facts do not fit

       within the “coming and going” rule and, moreover, a plaintiff is limited in

       bringing suit against a government employee by certain provisions of the ITCA.

       The common law rule lacks application here.


[11]   The ITCA, Indiana Code section 34–13–3–1 et. Seq., governs lawsuits against

       political subdivisions and their employees. “Among other things the statute

       provides substantial immunity for conduct within the scope of the employee’s

       employment.” Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003).

       Immunity assumes negligence but then denies liability. Id.


[12]   In relevant part, Indiana Code Section 34-13-3-5 provides:


               (a) Civil actions relating to acts taken by a board, a committee, a
                   commission, an authority, or another instrumentality of a
                   governmental entity may be brought only against the board,
                   the committee, the commission, the authority, or the other
                   instrumentality of a governmental entity. A member of a
                   board, a committee, a commission, an authority, or another
                   instrumentality of a governmental entity may not be named as
                   a party in a civil suit that concerns the acts taken by a board, a
                   committee, a commission, an authority, or another
                   instrumentality of a governmental entity where the member

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 6 of 13
            was acting within the scope of the member’s employment.
            For the purposes of this subsection, a member of a board, a
            committee, a commission, an authority, or another
            instrumentality of a governmental entity is acting within the
            scope of the member’s employment when the member acts as
            a member of the board, committee, commission, authority, or
            other instrumentality.


        (b) A judgment rendered with respect to or a settlement made by
            a governmental entity bars an action by the claimant against
            an employee, including a member of a board, a committee, a
            commission, an authority, or another instrumentality of a
            governmental entity, whose conduct gave rise to the claim
            resulting in that judgment or settlement. A lawsuit alleging
            that an employee acted within the scope of the employee’s
            employment bars an action by the claimant against the
            employee personally. However, if the governmental entity
            answers that the employee acted outside the scope of the
            employee’s employment, the plaintiff may amend the
            complaint and sue the employee personally. An amendment
            to the complaint by the plaintiff under this subsection must be
            filed not later than one hundred eighty (180) days from the
            date the answer was filed and may be filed notwithstanding
            the fact that the statute of limitations has run.


        (c) A lawsuit filed against an employee personally must allege
            that an act or omission of the employee that causes a loss is:


            (1) criminal;


            (2) clearly outside the scope of the employee’s employment;


            (3) malicious;



Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 7 of 13
                   (4) willful and wanton; or


                   (5) calculated to benefit the employee personally.


               The complaint must contain a reasonable factual basis supporting
               the allegations.


[13]   In finding Freed immune from a personal lawsuit and granting her summary

       judgment, the trial court relied upon Burton, supra. Like Freed, the defendant in

       Burton raised the affirmative defense of government employee immunity for

       conduct not “clearly outside the scope of the employee’s employment.” I.C. §

       34-13-3-5(c)(2). In Burton, the Indiana Supreme Court recognized that

       “[c]ertain 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.” 140 N.E.3d at 849. One of the “handful of

       well-delineated pathways to accomplish this task” is to show that the

       employee’s act or omission was “clearly outside the scope of the employee’s

       employment.” Id. at 850 (citing I.C. § 34-13-3-5(c)).


[14]   The plaintiff Bryce Burton attempted to sue Indiana State Trooper Martin

       Benner (“Trooper Benner”) in his personal capacity after the two were involved

       in an accident in rural Benton County. See id. At the time of the accident,

       Trooper Benner was off duty and headed to his son’s ballgame but was

       operating his state issued police commission as allowed under State Police

       policy. See id. Arguing that he was acting within the scope of his employment

       at the time of the accident, Benner sought summary judgment on whether he

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 8 of 13
       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. Id. 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. Id. at 851.

       The Indiana Supreme Court granted transfer and found that, despite “some

       evidence that Trooper Benner was not in strict compliance with State Police

       policy at the time of the accident,” such was insufficient to place him “clearly

       outside” the scope of his employment. Id. Accordingly, the grant of summary

       judgment to Trooper Brenner was affirmed. Id.


[15]   In reaching its decision, the Court discussed the availability of Trooper

       Benner’s affirmative defense under the ITCA:


               The ITCA “governs lawsuits against political subdivisions and
               their employees.” Bushong v. Williamson, 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

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 9 of 13
        an employee personally must allege that an act or omission of the
        employee that causes a loss is ... clearly outside the scope of the
        employee’s employment.” Ind. Code § 34-13-3-5(c)(2) (emphasis
        added.)


        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.


140 N.E.3d at 852.



Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 10 of 13
[16]   The Court acknowledged the absence of a “precise formula” for acting “outside

       the scope of employment” but observed that Trooper Benner’s “conduct [was]

       of the same general nature as that authorized, or incidental to the conduct

       authorized by the State Police.” Id. at 853. There existed no genuine issue of

       material fact precluding summary judgment. Id.


[17]   The Nickolsons argue that Burton is factually distinguishable in that Trooper

       Benner had “ongoing” duties pursuant to a “written policy promulgated by the

       Indiana State Police.” Appellant’s Brief at 21. But it is uncontroverted that

       Freed was acting in accordance with her employer’s instruction to get her bus to

       an inspection site; statutory immunity for a government employee is not limited

       to acts performed pursuant to written directives. The Nickolsons failed to

       allege that Freed was acting clearly outside the scope of her employment and,

       once Freed designated materials to show that she was acting in the scope of her

       employment, failed to designate any evidence to the contrary.


[18]   Finally, the Nickolsons argue that summary judgment is inappropriate because

       of a factual dispute. Specifically, the Nickolsons claim that Freed’s credibility

       regarding her cell phone usage has been called into question. According to the

       Nickolsons, “[Freed’s] cellular phone records showed she did send a text during

       the period she claimed to be home cleaning her bus. Moreover, the text appears

       to have occurred on or about the exact time of her collision with Mataya.”

       Appellant’s Brief at 18.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 11 of 13
[19]   When deposed, Freed denied using her cell phone at the time of the accident;

       she stated that it was in her purse. This testimony was uncontroverted.

       However, Freed did not report having sent a text message at 7:44 a.m., as

       reflected in AT&T records.2 A fact is material if its resolution would affect the

       outcome of the case. Hughley v. State, 15 N.E.3d 1000, 2003 (Ind. 2014). An

       issue is genuine if a trier of fact is required to resolve the parties’ differing

       accounts of the truth or if the undisputed material facts support conflicting

       reasonable inferences. Id.


[20]   The Indiana State Police Report indicated that the accident between Mataya’s

       vehicle and Freed’s bus occurred at 7:45 a.m. Freed’s cell phone usage at 7:44

       a.m. has temporal proximity, but no alleged connection to the accident. The

       Nickolsons did not aver in their Complaint that Freed was engaging in willful

       and wanton behavior. In response to Freed’s testimony that her phone was in

       her purse at the time of the accident, the Nickolsons designated no evidence

       tending to show that Freed was then using her phone. They do not argue that

       phone usage was a contributing factor to the accident. The suggested relevance

       is that Freed was taking a break instead of cleaning her bus as directed.




       2
         At her deposition, Freed was asked if she made calls when she was at home and she responded that she had
       not. Freed was then asked, “didn’t do anything,” and she responded “no.” (App. Vol. II, pg. 75.) The
       telephone records indicated use of the cell phone for an upload and download (possibly consistent with an
       internet search) and a text message.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020              Page 12 of 13
[21]   Assuming its relevance here, Burton offers guidance on the imposition of

       personal liability when an employee is not fully compliant with employer

       policies:


               To the extent Burton argues Trooper Benner’s violation of traffic
               laws exposed him to personal liability under the ITCA, we
               disagree. 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.


       140 N.E.3d at 853. Here, the record discloses nothing taking Freed clearly

       outside the scope of her employment at the time of the accident.



                                               Conclusion
[22]   Because Freed was not acting clearly outside the scope of her employment at

       the time of the collision, she is entitled to government employee immunity.

       The trial court properly granted summary judgment.


[23]   Affirmed.


       Vaidik, J., and Baker, Sr. J., concur.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020   Page 13 of 13
