                                                                                   FILED
                                                                               Feb 14 2018, 6:31 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Laurie D. Johnson                                          Alexander P. Pinegar
Alicia M. Adcock                                           Kevin S. Smith
Boje, Benner, Becker, Markovich &                          Church Church Hittle & Antrim
Hixson, LLP                                                Noblesville, Indiana
Noblesville, Indiana

James J. Shea, Sr.
Andrew S. Williams
Jeremy D. Lemon
Hunt Suedhoff Kalamaros, LLP
Fort Wayne, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Abigail Elizabeth Freeman                                  February 14, 2018
Jacks, a minor, by next friends                            Court of Appeals Case No.
Jennifer Jacks and William Scott                           80A02-1705-PL-923
Freeman, and Jennifer Jacks,                               Appeal from the Tipton Circuit
Appellants-Plaintiffs,                                     Court
                                                           The Honorable Thomas R. Lett,
        and                                                Judge

Jennifer Edwards,                                          Trial Court Cause No.
                                                           80C01-1512-PL-397
Appellant-Defendant,

        v.

Tipton Community School
Corporation,
Appellee-Defendant.




Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018                   Page 1 of 19
      Barnes, Judge.


                                               Case Summary
[1]   In this interlocutory appeal, Jennifer Edwards and Abigail Elizabeth Freeman

      Jacks (“Abigail”), a minor, by next friends, Jennifer Jacks and William Scott

      Freeman, and Jennifer Jacks (collectively, “Jacks Family”), appeal the trial

      court’s grant of summary judgment to the Tipton Community School

      Corporation (“School”). We affirm.


                                                      Issues
[2]   Edwards and the Jacks Family raise several issues, which we restate as:


                       I.       whether the trial court properly denied the
                                Jacks Family’s motion to strike; and

                       II.      whether the trial court properly granted
                                summary judgment to the School.


                                                       Facts
[3]   In August 2013, the School awarded Edwards a four-year contract to transport

      students on a school bus route in her own bus. Edwards had previously worked

      as a school-employed bus driver from 2010 through May 2013 driving a bus

      owned by a school corporation. In November 2014, Abigail was a thirteen-

      year-old student and was riding home from school on a bus driven by Edwards.

      Abigail was sitting near the rear of the bus when Edwards drove over a dip in

      the road. Abigail was allegedly thrown up and into the seat in front of her

      causing her to sustain a lacerated pancreas.

      Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 2 of 19
[4]   In December 2015, the Jacks Family filed a complaint against Edwards and the

      School. The Jacks Family alleged negligence by Edwards for operating the

      school bus “at an unreasonable rate of speed appropriate for the road

      conditions” and “failing to adequately supervise children on the bus under her

      care,” negligence by the School “by failing to provide safe school bus

      transportation” and “failing to properly train and supervise Defendant

      Edwards,” and a loss of services, expenses, and lost wages by Jennifer Jacks as

      a result of Edwards’s and the School’s negligence. Appellants’ App. Vol. II pp.

      17-18. In its answer, the School alleged in part that it was entitled to immunity

      pursuant to the Indiana Tort Claims Act, Indiana Code Section 34-13-3-3.


[5]   In October 2016, the School filed a motion for summary judgment. The School

      argued in part that Edwards was an independent contractor, not a school

      employee, and that, under the Indiana Tort Claims Act, it was immune from

      liability for Edwards’s actions. The School also argued that it was entitled to

      summary judgment on the direct liability negligence claim because: (1) it had

      no duty to train or supervise Edwards; and (2) if it did have such a duty, the

      undisputed material facts demonstrate that it did not breach that duty.


[6]   Both Edwards and the Jacks Family filed responses to the motion for summary

      judgment. The Jacks Family argued that genuine issues of material fact existed

      regarding whether Edwards was an employee or independent contractor and

      whether the School properly trained and supervised Edwards. They also

      argued that the School could not avoid liability by delegating a nondelegable



      Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 3 of 19
      duty to an independent contractor. Edwards argued that she was an employee

      of the School and that the School owed a duty of care to Abigail.


[7]   The School then filed a reply brief and supplemental designation of evidence.

      The Jacks Family filed a motion for leave to respond to the School’s reply,

      which the trial court granted, and they also filed a motion to strike the School’s

      reply. The trial court denied the Jacks Family’s motion to strike. After a

      hearing, the trial court granted the School’s motion for summary judgment.

      The trial court certified the order for interlocutory appeal, and this court

      granted permission pursuant to Indiana Appellate Rule 14(B).


                                                    Analysis
                                              I. Motion to Strike

[8]   The Jacks Family argues that the trial court erred by denying their motion to

      strike the School’s reply brief and supplemental designation. The trial court has

      broad discretion in ruling on the admissibility of evidence. Price v. Freeland, 832

      N.E.2d 1036, 1039 (Ind. Ct. App. 2005). This discretion extends to rulings on

      motions to strike where a party argues that a filing fails to comply with the

      summary judgment rules. Id.


[9]   According to the Jacks Family, the School was not permitted to file a reply or

      supplemental designation under Indiana Trial Rule 56, which governs summary

      judgment proceedings. They also argue that the School did not request

      permission to do so and did not include newly-discovered evidence in the

      supplemental designation. Trial Rule 56 does not specifically address reply

      Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 4 of 19
       briefs. The Rule discusses the initial motion and responses to the initial

       motion. However, it also provides: “The court may permit affidavits to be

       supplemented or opposed by depositions, answers to interrogatories, or further

       affidavits.” Ind. Trial Rule 56(E).


[10]   In Spudich v. Northern Indiana Public Service Co., 745 N.E.2d 281, 285-87 (Ind. Ct.

       App. 2001), trans. denied, we addressed a similar issue. There, NIPSCO filed a

       motion for summary judgment, Spudich filed a response, and NIPSCO then

       filed a reply brief with the trial court’s permission. Spudich filed a motion to

       strike the reply, which the trial court denied. On appeal, Spudich argued that

       Trial Rule 56 did not “specifically provide for the filing of reply briefs on

       summary judgment” and that a local rule allowing reply briefs conflicted with

       Trial Rule 56. Spudich, 745 N.E.2d at 286. We noted that Trial Rule 56

       “neither expressly permits nor precludes such a reply brief.” Id. at 287. The

       Rule does, however, “provide for affidavits submitted in support or in

       opposition to summary judgment to be supplemented or opposed by

       depositions, answers to interrogatories, and further affidavits.” Id. Thus, the

       submission of additional evidence after the initial filings is contemplated by the

       Rule. We noted that the “practice of filing a reply brief on summary judgment

       was not unique” to that county and concluded that the local rule was not

       “incompatible” with Rule 56. Id. Consequently, we concluded that the local

       rule was not invalid. We also held that NIPSCO was allowed to include

       additional designations of evidence with the reply brief and arguments not

       made in its original motion. Id. at 288-89.


       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 5 of 19
[11]   Relying on Spudich, we reached the same result in Auto-Owners Ins. Co. v. Benko,

       964 N.E.2d 886, 889-90 (Ind. Ct. App. 2012), trans. denied. There, the insured

       filed a motion for summary judgment, the insurer filed a response, and the

       insured then supplemented her designation of evidence without obtaining

       permission from the trial court. The insured filed a motion to strike the

       supplemental designation, which the trial court denied. On appeal, we held,

       “[i]n the absence of any language in Trial Rule 56 explicitly prohibiting reply

       briefs and such designations and in light of these facts and circumstances, we

       cannot say the trial court erred in denying [the insured’s] motion to strike.”

       Benko, 964 N.E.2d at 890.


[12]   Based on the language of Trial Rule 56, Spudich, and Benko, we find no error by

       the trial court in allowing the School’s reply and supplemental designation.

       Trial Rule 56 does not prohibit reply briefs and specifically allows the

       designated evidence to be supplemented. The trial court did not abuse its

       discretion when it denied the Jacks Family’s motion to strike.


                                    II. Motion for Summary Judgment

[13]   The Jacks Family and Edwards argue that the trial court erred by granting the

       School’s motion for summary judgment. Summary judgment is appropriate

       only when the moving party shows there are no genuine issues of material fact

       for trial and the moving party is entitled to judgment as a matter of law.

       Schoettmer v. Wright, 992 N.E.2d 702, 705 (Ind. 2013); see also T.R. 56(C). Once

       that showing is made, the burden shifts to the non-moving party to rebut it.

       Schoettmer, 992 N.E.2d at 705-06. When ruling on the motion, the trial court
       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 6 of 19
       construes all evidence and resolves all doubts in favor of the non-moving party.

       Id. at 706. We review the trial court’s grant of summary judgment de novo, and

       we take “care to ensure that no party is denied his [or her] day in court.” Id.


                            A. Immunity for Edwards’s Alleged Negligence

[14]   In its motion for summary judgment, the School argued that it was immune

       from liability for Edwards’s negligence. “Government entities and their

       employees are subject to liability for torts committed by them, unless one of the

       [Indiana Tort Claims Act “ITCA”)] exceptions provides immunity.” Indiana

       Dep’t of Transp. v. Sadler, 33 N.E.3d 1187, 1191 (Ind. Ct. App. 2015). “Whether

       a government entity is immune from liability is a question of law, which we

       review de novo.” Id. “Because the ITCA is in derogation of the common law,

       we construe it narrowly against the grant of immunity.” Id. “The party seeking

       immunity has the burden of establishing that its conduct falls within one of the

       exceptions provided by the ITCA.” Id.


[15]   The ITCA provides that “[a] governmental entity or an employee acting within

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

       [t]he act or omission of anyone other than the governmental entity or the

       governmental entity’s employee.” Ind. Code § 34-13-3-3(10). This subsection’s

       immunity “applies in ‘actions seeking to impose vicarious liability by reason of

       conduct of third parties’ other than governmental employees acting within the

       scope of their employment.” King v. Ne. Sec., Inc., 790 N.E.2d 474, 481 (Ind.

       2003) (quoting Hinshaw v. Bd. of Comm’rs of Jay County, 611 N.E.2d 637, 640-41

       (Ind. 1993)). For purposes of the ITCA, an “employee” is “a person presently
       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 7 of 19
       or formerly acting on behalf of a governmental entity, whether temporarily or

       permanently or with or without compensation . . . .” I.C. § 34-6-2-38(a).

       However, the term does not include “an independent contractor.” I.C. § 34-6-

       2-38(b)(1).


[16]   The General Assembly has enacted a detailed statutory scheme regarding

       school transportation. See Indiana Code Article 20-27. Indiana Code Section

       20-27-5-2(a) provides that “[t]he governing body of a school corporation may

       provide transportation for students to and from school.” Cf. Hoagland v.

       Franklin Twp. Cmty. Sch. Corp., 27 N.E.3d 737, 738 (Ind. 2015) (finding no

       constitutional requirement for school corporations to provide transportation to

       and from school). In this statutory scheme, the General Assembly

       differentiated between “employment contracts” and “transportation contracts”

       for student bus transportation. An “employment contract” is “a contract: (1)

       between: (A) a school corporation that owns all necessary school bus

       equipment; and (B) a school bus driver; and (2) that provides that the school

       bus driver is employed in the same manner as other noninstructional personnel

       are employed by the school corporation.” I.C. § 20-27-2-4. On the other hand,

       a “transportation contract” is “a contract between a school corporation and a

       school bus driver in which the school bus driver promises to provide, in

       addition to driving services, a school bus, school bus chassis, or school bus

       body.” I.C. § 20-27-2-12. Here, Edwards had a transportation contract with




       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 8 of 19
the School.1 Although school bus drivers with an employment contract are

employed in the same manner as other noninstructional personnel, school bus

drivers with a transportation contract are not employed in this manner.

Compensation for school bus drivers with a transportation contract is


         determined and fixed by the contract on a per diem basis for the
         number of days on which:


         (1)      the calendar of the school corporation provides that
                  students are to attend school;


         (2)      the driver is required by the school corporation to operate
                  the bus on school related activities; and


         (3)      inservice training is required by statute or authorized by
                  the school corporation, including the safety meeting
                  workshops required under section 9 of this chapter.


I.C. § 20-27-8-7. Additionally, school bus drivers with a transportation contract

must provide their own liability insurance, whereas the school corporation

insures school bus drivers with employment contracts. I.C. § 20-27-5-4;

Appellants’ App. Vol. II p. 112.




1
  The School notes that both Indiana Code Section 20-27-5-5(a) and Indiana Code Section 20-27-5-7 provide
that such transportation contracts are entered into under Indiana Code Article 5-22. That chapter governs
public purchasing, and it does not apply to an “employment relationship between a governmental body and
an employee of the governmental body.” I.C. § 5-22-1-3(4). However, at the time Edwards entered into the
transportation contract with the School in 2013, those statutes did not contain the language referencing
Indiana Code Article 5-22. Those statutes were amended in 2015 to add that language. See P.L. 233-2015, §
185 (eff. July 1, 2015); P.L. 233-2015, § 187 (eff. July 1, 2015). Consequently, we do not find the references
to Indiana Code Section 5-22-1-3 pertinent here.

Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018                       Page 9 of 19
[17]   Based on this statutory scheme, the School argued that Edwards was an

       independent contractor, not an employee of the School. Consequently, the

       School would be immune from liability for Edwards’s negligence under the

       ITCA. Edwards and the Jacks Family argue that we must apply the common

       law ten-factor test to determine whether Edwards was an independent

       contractor or an employee of the School. The ten factors include the following:


               (a) the extent of control which, by the agreement, the master may
               exercise over the details of the work;


               (b) whether or not the one employed is engaged in a distinct
               occupation or business;


               (c) the kind of occupation, with reference to whether, in the
               locality, the work is usually done under the direction of the
               employer or by a specialist without supervision;


               (d) the skill required in the particular occupation;


               (e) whether the employer or the workman supplies the
               instrumentalities, tools, and the place of work for the person
               doing the work;


               (f) the length of time for which the person is employed;


               (g) the method of payment, whether by the time or by the job;


               (h) whether or not the work is a part of the regular business of the
               employer;



       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 10 of 19
               (i) whether or not the parties believe they are creating the relation
               of master and servant; and


               (j) whether the principal is or is not in business.


       Mortg. Consultants, Inc. v. Mahaney, 655 N.E.2d 493, 495-96 (Ind. 1995). The

       School contends the statutory scheme makes it clear that Edwards was an

       independent contractor, not an employee, and we “need not, and indeed should

       not, look to common law to make that determination.” Appellee’s Br. p. 25.


[18]   “‘An abrogation of the common law will be implied (1) where a statute is

       enacted which undertakes to cover the entire subject treated and was clearly

       designed as a substitute for the common law; or, (2) where the two laws are so

       repugnant that both in reason may not stand.’” Caesars Riverboat Casino, LLC v.

       Kephart, 934 N.E.2d 1120, 1123 (Ind. 2010) (quoting Irvine v. Rare Feline

       Breeding Ctr., Inc., 685 N.E.2d 120, 123 (Ind. Ct. App. 1997), trans. denied). The

       General Assembly’s comprehensive statutory scheme regarding school bus

       transportation clearly differentiates between “employment contracts” and

       “transportation contracts.” The statutory scheme makes it clear that drivers

       under transportation contracts are not employees of the school corporation;

       rather, they are independent contractors. Given the clear statutory language,

       we decline to apply the ten-factor common law test to differentiate between

       employees and independent contractors. See Kosarko v. Padula, 979 N.E.2d 144,

       149 (Ind. 2012) (holding that “the comprehensive nature of the TPIS and the

       codification of two common law rules convince us that the legislature intended


       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 11 of 19
       the statute to be the exclusive source governing the award of prejudgment

       interest in cases falling within its ambit”). It is clear here that Edwards was an

       independent contractor. There are no genuine issues of material fact on this

       issue.


[19]   Despite our conclusion that Edwards was an independent contractor and, thus,

       the School was entitled to immunity for Edwards’s alleged negligence under the

       ITCA, the Jacks Family argues that the School owed a non-delegable duty to

       the students under its care. They rely on Shand Mining, Inc. v. Clay County Board

       of Commissioners, 671 N.E.2d 477, 481 (Ind. Ct. App. 1996), trans. denied, and

       City of Vincennes v. Reuhl, 672 N.E.2d 495, 497-98 (Ind. Ct. App. 1996), trans.

       denied, which held that, despite the ITCA’s provisions, a governmental entity

       could be liable for an independent contractor’s actions based on a non-delegable

       duty analysis.


[20]   We rejected this argument in Bartholomew Cty. v. Johnson, 995 N.E.2d 666 (Ind.

       Ct. App. 2013). There, we noted:


                Generally, a principal who delegates a duty to an independent
                contractor is not liable for the negligence of that independent
                contractor in performing the duty. Bagley v. Insight
                Communications Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995).
                However, an exception to this general rule exists “where the
                principal is by law or contract charged with performing the
                specific duty.” Id. Duties that are imposed by law or contract
                are considered non-delegable because they are deemed so
                important to the community that the principal should not be
                permitted to transfer these duties to another. Id. at 587. As a
                result, although a principal may transfer the responsibility for

       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 12 of 19
               performing a duty to an independent contractor, the principal
               remains liable if the duty is negligently performed.


       Johnson, 995 N.E.2d at 675. However, we also noted:


               Immunity assumes negligence but denies liability. Thus, the
               issues of duty, breach and causation are not before the court in
               deciding whether the government entity is immune. If the court
               finds the government is not immune, the case may yet be decided
               on the basis of failure of any element of negligence. This should
               not be confused with the threshold determination of immunity.


       Id. at 672 (citing Peavler v. Bd. of Comm’rs of Monroe Cnty., 528 N.E.2d 40, 46-47

       (Ind. 1988)).


[21]   Relying on our supreme court’s opinion in Hinshaw v. Board of Commissioners of

       Jay County, 611 N.E.2d 637 (Ind. 1993), and rejecting the approach taken in

       Shand Mining and Reuhl, we concluded:


               [W]e find it telling that neither Shand Mining nor Reuhl mentions
               Hinshaw and that Indiana Code Section 34-13-3-3(10) contains no
               exceptions to its straightforward grant of immunity. Although
               the Hinshaw court was not faced with a situation involving an
               independent contractor and did not use the phrase “non-
               delegable duty,” that concept was at the heart of its discussion of
               vicarious liability. . . .


               The clear import of Hinshaw’s vicarious liability analysis is that
               Indiana Code Section 34-13-3-3(10) entitles a governmental
               entity to immunity from liability for a loss resulting from the acts
               or omissions of an independent contractor; that liability would
               arise only if the independent contractor had performed a non-
               delegable duty. Indiana Code Section 34-13-3-3(10) would be

       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 13 of 19
        useless in situations involving an independent contractor if it did
        not apply to non-delegable duties, and we “presume that the
        legislature did not enact a useless provision.” Hinshaw, 611
        N.E.2d at 638. To the extent that Shand Mining and Reuhl
        conflict with Hinshaw on this point, we respectfully disagree with
        those cases. If Hinshaw is to be abrogated, it should be done by
        our supreme court. Consequently, even assuming that a non-
        delegable duty exists in this case, we conclude that the trial court
        erred in denying the County’s summary judgment motion as to
        its immunity from liability for any of CBE’s acts or omissions
        and therefore reverse as to that issue.


Johnson, 995 N.E.2d at 678-79 (footnotes omitted) (internal citation omitted).

Consequently, we concluded that, where a governmental entity has immunity

from the acts or omissions of an independent contractor, the non-delegable duty

analysis is inapplicable.2 We find Johnson persuasive here and, likewise,

conclude that the non-delegable duty argument fails.3 The trial court properly

granted the School’s motion for summary judgment regarding the Jacks

Family’s claim regarding Edwards’s alleged negligence.




2
  The Jacks Family also relies upon Seiwert v. Spencer-Owen Comm. Sch. Corp., 497 F.Supp.2d 942, 956 (S.D.
Ind. 2007), which denied a school’s motion for summary judgment regarding a claim of negligent supervision
of a bus driver. Relying on Shand Mining, the court concluded that, even if the bus driver was an independent
contractor, the school could still be liable under a non-delegable duty analysis. However, we have concluded
that Shand Mining is unpersuasive here.
3
  The Jacks Family also argues that it believed Edwards to be an employee of the School rather than an
independent contractor. They cite no authority, however, that their belief concerning the relationship
between the School and Edwards was controlling. Consequently, this argument is waived for failure to make
a cogent argument. See Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018                    Page 14 of 19
                              B. Liability for School’s Alleged Negligence

[22]   The Jacks Family and Edwards also alleged that the School was negligent for

       failing to properly train and supervise Edwards. We noted in Johnson that a

       governmental entity was not entitled to immunity if the loss “results from its

       own negligence. . . .” Johnson, 995 N.E.2d at 679. This argument concerns the

       School’s alleged direct negligence.


[23]   Prevailing on a negligence claim requires fulfillment of three elements: 1) duty

       owed to plaintiff by the defendant; 2) breach of duty by allowing conduct to fall

       below the applicable standard of care; and 3) compensable injury proximately

       caused by defendant’s breach of duty. Ryan v. TCI Architects/Engineers/

       Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). In the School’s motion for

       summary judgment, it argued that it did not owe a duty to supervise or train

       Edwards. The School also argued that, even if it had duties to train or supervise

       Edwards, it did not breach its duties. We need not address the duty argument

       because, even if the School had a duty to supervise and train Edwards, there is

       no genuine issue of material fact demonstrating that the School breached its

       duty.


[24]   In its motion for summary judgment, the School designated evidence that

       Edwards had obtained her CDL and had taken the annual safety course

       administered by the Indiana State Police; that Edwards’s CDL had never been

       revoked or suspended, that Edwards had never been cited by the School for

       misconduct or received any verbal or written warnings regarding her

       performance; that the assistant superintendent had never considered
       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 15 of 19
       disciplinary action against Edwards; that no one had ever brought concerns

       regarding Edwards’s driving to the assistant superintendent’s attention; that the

       assistant superintendent had never received any complaints from students or

       parents regarding Edwards’s ability as a bus driver; and that the assistant

       superintendent never had a reason to question Edwards’s abilities as a bus

       driver. Consequently, the School argued that the plaintiffs could not “point to

       any evidence establishing a genuine issue of material fact on whether the School

       breached such a duty.” Appellants’ App. Vol. II pp. 31-32.


[25]   In response, the Jacks Family designated evidence that the School had failed to

       maintain certain records regarding the bus drivers and, thus, failed to properly

       supervise its drivers. They argue on appeal that genuine issues of material fact

       exist regarding whether the School “maintained accurate records of its drivers

       and busses, including their CDL licenses, their physical exams, inspection

       records for driver owned buses, verification of insurance coverage, verification

       that drivers have completed evacuation reports, and title records reflecting

       ownership of driver owned buses.” Jacks Family Appellant’s Br. p. 41. They

       also argue that the School failed to keep a record of whether Edwards attended

       a meeting at the beginning of the school year to review the Transportation

       Handbook and bus transportation policies and, thus, failed to properly train

       Edwards.


[26]   Edwards argued that the School failed to demonstrate “what training it

       specifically provided to Ms. Edwards” and failed to demonstrate “how it

       properly supervised Ms. Edwards.” Appellants’ App. Vol. III p. 148. On

       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 16 of 19
       appeal, Edwards argues that the School must “affirmatively negate the claims

       that it negligently trained or supervised Edwards . . . .” Edwards’s Appellant’s

       Br. p. 29.


[27]   In response, the School argued that whether it kept records regarding Edwards’s

       training was irrelevant. The designated evidence showed that Edwards

       completed all training required by the State of Indiana, that the School verified

       that Edwards completed the training, and that the School did not maintain

       separate copies of the records because “the State keeps these records on-line and

       [the assistant superintendent] can access those records anytime he wishes,

       making it unnecessarily redundant for the School to keep its own copies of such

       records.” Appellants’ App. Vol. IV p. 2. Further, regarding the School’s

       supervision of Edwards, the School designated evidence that it annually

       evaluated her, had never received any complaints regarding her performance,

       and never received any information that her performance was inadequate.

       Consequently, the School argued that, if it had a duty to supervise or train

       Edwards, the undisputed evidence demonstrated that it did so. According to

       the School, it demonstrated “the affirmative steps it took to annually review

       Edwards’s performance under her contract and to confirm Edwards had

       satisfied the myriad of state requirements put in place by the General Assembly

       to insure bus drivers are adequately trained in proper safety and that their buses

       are safe to operate on Indiana’s roads.” Id. at 5.


[28]   In support of their arguments on appeal, the Jacks Family and Edwards rely on

       Simpson v. OP Property Management, LLC, 939 N.E.2d 1098 (Ind. Ct. App. 2010).

       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 17 of 19
       In Simpson, a driver was injured when a school bus collided with her vehicle.

       She filed a complaint against the school bus driver, the school corporation, and

       others. The school bus driver and the school corporation were granted

       summary judgment by the trial court, and this court reversed on appeal. One of

       the allegations in the driver’s complaint was that the school was negligent “in

       failing to properly hire school bus drivers” and “in failing to properly train and

       teach school bus drivers proper procedures for preventing accidents.” Simpson,

       939 N.E.2d at 1102. This court concluded, in part, that a genuine issue of

       material fact existed regarding whether the school bus driver’s conduct was

       negligent and, “because we cannot say how, if at all, [the school bus driver’s]

       conduct was negligent, we also cannot rule out the possibility that the School

       District was negligent in training and hiring him.” Id. at 1105.


[29]   Simpson made no discussion of evidence designated in the case, and we do not

       find Simpson persuasive here. In summary judgment proceedings, the initial

       burden is on the movant—the School—to demonstrate the absence of any

       genuine issue of material fact. Arthur v. MacAllister Mach. Co., 83 N.E.3d 783,

       786 (Ind. Ct. App. 2017). The burden then shifted to the non-movant—the

       Jacks Family and Edwards—to come forward with contrary evidence showing

       an issue for the trier of fact. Id. Here, the School designated evidence that

       Edwards received the required training, that it annually evaluated her

       performance, and that it had never received any complaints about her

       performance. The burden then shifted to the Jacks Family and Edwards to

       come forward with contrary evidence showing a genuine issue of material fact.


       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 18 of 19
       They responded only with evidence that the School failed to keep certain

       records. The School responded by designating evidence that the records were

       maintained online by the State and that it was unnecessary for it to retain

       physical copies of the records. The Jacks Family and Edwards simply failed to

       designate any relevant, material evidence that the School failed to properly train

       or supervise Edwards. We conclude that there is no evidence designated

       showing a genuine issue of material fact that the School failed to properly train

       or supervise Edwards. The trial court properly granted summary judgment to

       the School on this claim.


                                                   Conclusion
[30]   The trial court properly denied the Jacks Family’s motion to strike and properly

       granted the School’s motion for summary judgment. We affirm.


[31]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 80A02-1705-PL-923 | February 14, 2018   Page 19 of 19
