                                                                               FILED
                                                                           Jun 13 2019, 8:39 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Karl L. Mulvaney                                           Curtis T. Hill, Jr.
Margaret M. Christensen                                    Attorney General of Indiana
Nana Quay-Smith                                            Monika Prekopa Talbot
Bingham Greenbaum Doll LLP                                 Deputy Attorney General
Indianapolis, Indiana                                      Indianapolis, Indiana
R.T. Green
Kellie C. Clark
Collin W. Green
Blackburn & Green
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Bryce A. Burton,                                           June 13, 2019
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           19A-CT-135
        v.                                                 Appeal from the Benton Circuit
                                                           Court
Martin Benner and                                          The Honorable Hunter J. Reece,
Indiana State Police,                                      Special Judge
Appellees-Respondents                                      Trial Court Cause No.
                                                           04C01-1612-CT-176



Baker, Judge.



Court of Appeals of Indiana | Opinion 19A-CT-135 | June 13, 2019                                   Page 1 of 5
[1]   Bryce Burton appeals the trial court’s order granting partial summary judgment

      in favor of Martin Benner, arguing that the trial court erred by finding as a

      matter of law that Benner was acting within the scope of his employment at the

      time of a vehicle accident. We agree. Therefore, we reverse and remand for

      further proceedings.


                                                       Facts
[2]   On June 4, 2015, Burton was operating a motorcycle traveling northbound on

      Meridian Road in Benton County. Benner, who is a trooper with the Indiana

      State Police, was traveling southbound on Meridian Road when he decided to

      pass the vehicle traveling in front of him. Benner moved into the northbound

      lane and observed Burton on the motorcycle traveling toward him. When the

      distance closed between Benner’s vehicle and Burton’s motorcycle, Benner

      abandoned his attempt to pass the vehicle in front of him and moved back into

      the southbound lane. In the meantime, however, Burton took evasive measures

      to avoid a head-on collision, resulting in the locking up of the motorcycle’s

      brakes. Burton lost control and left the roadway, sustaining injuries as a result.


[3]   Benner was off-duty at the time of the accident. He was driving an unmarked

      Dodge Charger owned by the Indiana State Police on the way to his son’s

      baseball game. The Indiana State Police authorizes its troopers to engage in de

      minimis use of police vehicles for personal matters but requires that they

      maintain radio contact to respond to emergency situations. Benner had worked




      Court of Appeals of Indiana | Opinion 19A-CT-135 | June 13, 2019          Page 2 of 5
      earlier in the day, but when his shift was over he had gone home, taken a

      shower, changed into street clothes, and left home to go to the baseball game.


[4]   On December 12, 2016, Burton filed a complaint against Benner, seeking

      damages for the injuries he sustained as a result of the accident. In Benner’s

      answer, he responded, among other things, that he was immune from liability

      because he had been operating the vehicle within the scope of his employment.

      On April 9, 2018, Benner filed a motion for summary judgment, arguing in

      relevant part that as a matter of law, he was operating the vehicle within the

      scope of his employment at the time of the accident. Following briefing, on

      October 22, 2018, the trial court granted partial summary judgment in favor on

      Benner on this issue.1 Burton now appeals.


                                     Discussion and Decision
[5]   Our standard of review on summary judgment is well established:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the



      1
        On October 30, 2018, Burton filed a motion to amend his complaint, stating that because summary
      judgment was granted in Benner’s favor on the issue of his employment, Burton intended to substitute the
      Indiana State Police as the defendant. The trial court ultimately granted the motion, with the result that both
      Benner and the Indiana State Police are named as defendants.

      Court of Appeals of Indiana | Opinion 19A-CT-135 | June 13, 2019                                    Page 3 of 5
              case, and 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. (internal citations omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[6]   If it is found that Benner was working within the scope of his employment with

      the Indiana State Police, he is immune from personal liability for the accident.

      Ind. Code § 34-13-3-5(b)-(c). As a general matter, usually discussed in the

      context of the respondeat superior doctrine, “‘it is well established that whether

      an employee’s actions were within the scope of employment is a question of

      fact to be determined by the factfinder.’” Knighten v. E. Chi. Hous. Auth., 45

      N.E.3d 788, 794 (Ind. 2015) (quoting Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107

      (Ind. Ct. App. 2014)).


[7]   In this case, the salient facts are undisputed. Benner is employed by the Indiana

      State Police. At the time of the accident, he was driving a police vehicle, but

      the vehicle was unmarked. Benner was wearing street clothes, was not on duty,

      and was traveling from home to his son’s baseball game when the accident

      occurred. He was authorized to use his police vehicle for personal purposes but

      was required to (and did) maintain radio contact in case of emergency

      situations. After Burton’s accident, Benner stopped to provide assistance

      although he, himself, had not been affected by the accident.


[8]   While the facts are without dispute, the inferences that can be made from and

      conclusions that can be based on those facts are anything but. One reasonable

      Court of Appeals of Indiana | Opinion 19A-CT-135 | June 13, 2019            Page 4 of 5
      factfinder could look at these facts and easily conclude that Benner was not

      acting within the scope of his employment at the time of the accident. Another

      reasonable factfinder could reach precisely the opposite conclusion. Given our

      standard of review on summary judgment and our Supreme Court’s caution

      that summary judgment should not be used to “short-circuit[] the trial process”

      where even a “minimal[]” amount of evidence raises a factual issue to be

      resolved at trial, Hughley, 15 N.E.3d at 1004-05, we can only find that the trial

      court erred by entering summary judgment in favor of Benner on this issue.


[9]   The judgment of the trial court is reversed and remanded for further

      proceedings.


      Najam, J., and Robb, J., concur.




      Court of Appeals of Indiana | Opinion 19A-CT-135 | June 13, 2019          Page 5 of 5
