FILED Sep 27 2023, 9:03 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES Caren L. Pollack James H. Young Pollack Law Firm, P.C. Young & Young Carmel, Indiana Indianapolis, Indiana
Gregory L. Laker Amina A. Thomas Cohen & Malad, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
New Augusta North Public September 27, 2023 Academy and Metropolitan Court of Appeals Case No. School District of Pike 23A-CT-871 Township, Appeal from the Marion Superior Appellants-Defendants, Court The Honorable Ezra H. v. Friedlander, Senior Judge Trial Court Cause No. K.G., a Minor, by her Parent 49D02-1908-CT-34744 and Next Friend Melody Ruch, Individually, Appellees-Plaintiffs.
Opinion by Judge Tavitas Judges Bailey and Kenworthy concur.
Tavitas, Judge. Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 1 of 21 Case Summary [1] New Augusta North Public Academy and the Metropolitan School District of
Pike Township (collectively, the “School”) appeal the trial court’s grant of
partial summary judgment to K.G., a minor, by her parent and next friend,
Melody Ruch (“Mother”) (collectively, “Plaintiffs”) regarding Plaintiffs’
respondeat superior claim and the trial court’s denial of the School’s motion for
partial summary judgment regarding individual claims brought by Mother. We
conclude that: (1) the trial court erred by granting summary judgment to
Plaintiffs on their respondeat superior claim because genuine issues of material
fact exist; and (2) the trial court properly denied the School’s motion for partial
summary judgment regarding Mother’s individual claims because the School
waived the notice of the tort claim issue. Accordingly, we affirm in part,
reverse in part, and remand for further proceedings.
Issues [2] The School raises two issues, which we restate as:
I. Whether the trial court properly granted Plaintiffs’ motion for partial summary judgment regarding their respondeat superior claim.
II. Whether the trial court properly denied the School’s motion for partial summary judgment regarding Mother’s individual claims due to Mother’s failure to file a proper notice of tort claim.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 2 of 21 Facts [3] K.G. was born in 2004. She was born with cerebral palsy, microcephaly,
congenital quadriplegia, optic nerve hypoplasia, and epilepsy. K.G. is
nonverbal and is limited in her communication, vision, physical movement,
and comprehension.
[4] K.G. was a student at the School from October 2015 to January 2016. Morgan
Smith was employed by the School as an instructional assistant. Smith’s duties
included caring for K.G.’s “diaper changes and other needs related to her
physical hygiene and overall wellbeing.” Appellants’ App. Vol. II p. 105.
Smith was required to “undress [K.G.], clean her genitals, perianal and anal
areas, apply medications/salves if necessary, and dress [K.G.] afterward.” Id.
Smith touched K.G. to help stretch her limbs, to move her from her chair to
other positions, and to calm or reassure her. The School did not require that
diaper changes be performed with another adult present, and Smith performed
the diaper changes and hygiene care in a private area.
[5] Between October 2015 and January 2016, Smith sexually abused K.B. by digital
penetration while changing her diaper. Around this time, K.G. started suffering
from sleeplessness and night terrors and became combative with her caregivers.
Ultimately, Mother had to place K.G. in a chronic care facility.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 3 of 21 [6] In February 2018, Smith confessed to sexually abusing K.G., and Mother learned
of the abuse on February 22, 2018. The State charged Smith in May 2018, and
Smith pleaded guilty to child molesting, a Level 3 felony, in April 2019. 1
[7] On May 14, 2019, Plaintiffs sent a notice of tort claim, which provided in part:
Pursuant to the Indiana Tort Claims Act governing notice of tort claims (I.C. § 34-l3-3-6, 8, 9, and 10), notice is hereby given of the claim of [K.G.], Individually[,] and [Mother], as Parent and Natural Guardian of [K.G.], a minor, for personal injuries received by [K.G.] at the Metropolitan School District of Pike Township, New Augusta North Public Academy.
Appellant’s App. Vol. II pp. 177-78. The notice named K.G., Mother, Smith,
and school personnel as “individuals and entities” that “may be involved.” Id.
at 178.
[8] In August 2019, Plaintiffs filed a complaint against the School and Smith.
Plaintiffs alleged that Smith was acting within the scope of her employment and
that the School was vicariously liable for Smith’s conduct under respondeat
superior principles. 2 Plaintiffs alleged that K.G. suffered trauma as a result of
the School’s negligence and that Mother, individually, suffered negligent
infliction of emotional distress as a result of the sexual abuse of K.G., lost the
ability to care for K.G. in her home, and incurred economic damages for the
1 Smith was sentenced to thirteen years, all suspended to probation. 2 Plaintiffs also brought claims for negligent hiring, training, and retention. Those claims, however, are not at issue here.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 4 of 21 placement of K.G. in a chronic care facility. In paragraph 13 of the complaint,
Plaintiffs alleged that they “timely and appropriately sent [a] Tort Claim
Notice” to the School on May 14, 2019. Appellant’s App. Vol. II p. 18. In its
answer, the School admitted the allegations contained in paragraph 13 of the
complaint.
[9] In June 2020, the School filed a motion for partial summary judgment
regarding Mother’s individual claim. The School alleged that, because Mother
was neither physically present during the abuse nor physically impacted, her
claim for emotional distress could not survive. The trial court granted the
School’s motion for partial summary judgment regarding Mother’s individual
claims. On appeal, this Court affirmed the grant of summary judgment
regarding Mother’s emotional distress claim but reversed summary judgment
regarding Mother’s economic damages because the School did not seek
summary judgment regarding that claim. Our Supreme Court granted transfer
and, on December 22, 2021, the Court held:
[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child’s parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian’s emotional health.
K.G. ex rel. Ruch v. Smith, 178 N.E.3d 300, 303 (Ind. 2021). Our Supreme Court
held that summary judgment was improperly granted on both Mother’s
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 5 of 21 negligent infliction of emotional distress claim and Mother’s individual claim
for economic damages. Id. at 314.
[10] On remand, Plaintiffs filed a motion for partial summary judgment on their
respondeat superior claim. Plaintiffs argued that: (1) Smith’s molestation of
K.G. was established as a matter of law; and (2) the sexual assault arose out of
and was committed during the course of Smith’s employment with the School.
Plaintiffs also argued that Mother was entitled to summary judgment on her
individual claim for emotional distress. Plaintiffs contended that no genuine
issue of material fact existed. In support of their motion, Plaintiffs designated
the complaint, Mother’s deposition, an affidavit from K.G.’s teacher, and
documents regarding Smith’s criminal case.
[11] On April 1, 2022, the School filed a motion for leave to amend its answer and
argued that Mother’s notice of tort claim was untimely. Over Mother’s
objection, the trial court granted the School’s motion to amend. The School’s
amended answer denied the allegations of paragraph 13 of the complaint, and
the amended affirmative defenses included the following: “[Mother] failed to
give Defendants notice of her individual claim within 180 days after her alleged
loss, as required by the Indiana Tort Claims Act . . . .” Appellant’s App. Vol. II
p. 154.
[12] On April 18, 2022, Mother sent a second notice of tort claim, which provided in
part:
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 6 of 21 Pursuant to the Indiana Tort Claims Act governing notice of tort claims (I.C. § 34-13-3-6, 8, 9, and 10), notice is hereby given of the claim of [K.G.], Individually[,] and [Mother], as Parent and Natural Guardian of [K.G.], a minor, for personal injuries received by [K.G.] at the Metropolitan School District of Pike Township, New Augusta North Public Academy, and injuries and losses suffered by [Mother], individually as a result of the sexual molestation of her child. This Notice is supplementation to the Notice previously given concerning these claims on May 14, 2019, and since the decision handed down by the Indiana Supreme Court on December 23, 2021, in the case K G. [ex rel.] Ruch v. Smith, 178 N.E.3d 300 (Ind. 2021).
Appellants’ App. Vol. III pp. 3-4.
[13] The School filed a response to Plaintiffs’ motion for partial summary judgment
and a cross-motion for summary judgment as to Mother’s claims. The School
argued that Smith’s guilty plea did not bind the School and that Plaintiffs’
respondeat superior claims were a matter for the jury to decide. The School
designated no evidence in response to Plaintiffs’ motion.
[14] In the cross-motion, the School also argued that Mother’s notice of tort claim
was untimely. The School alleged that Mother learned of the molestation on
February 22, 2018; Mother had 180 days to file her notice of tort claim, which
would have been August 21, 2018; but Mother did not file her notice until May
14, 2019, several months too late. Moreover, the School argued that the notice
did not identify Mother as having a claim. The School, thus, argued that it was
entitled to summary judgment on Mother’s individual claims. In support of the
cross-motion, the School designated the May 14, 2019 notice of tort claims.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 7 of 21 [15] In response to the School’s cross-motion for summary judgment, Mother
argued that the School waived the notice of tort claim argument by failing to
raise the issue earlier. Mother also argued that her notice of tort claim
substantially complied with the relevant statutes and that the notice was timely
because “K.G.’s minority and incapacity tolled her time to file a tort claim
notice under Indiana Code § 34-13-3-9.” Appellant’s App. Vol. II p. 200.
Alternatively, Mother argued that her April 18, 2022 notice of tort claim was
timely in light of the Supreme Court’s creation of a “new cause of action.” Id.
at 206. Mother designated, in part, her April 18, 2022 notice of tort claim.
[16] In April 2023, the trial court entered an order: (1) granting Plaintiffs’ motion for
partial summary judgment; (2) denying the School’s motion for partial
summary judgment; and (3) setting a pre-trial conference for the purpose of
scheduling a trial on the issue of damages. The trial court found “no just reason
for delay, and expressly enter[ed] judgment . . . .” Id. at 15; see Ind. Trial Rule
56(C). The School now appeals.
Discussion and Decision [17] The School challenges the trial court’s denial of its motion for partial summary
judgment and the trial court’s grant of partial summary judgment to Mother.
“‘When this Court reviews a grant or denial of a motion for summary
judgment, we stand in the shoes of the trial court.’” Minser v. DeKalb Cnty. Plan
Comm’n, 170 N.E.3d 1093, 1098 (Ind. Ct. App. 2021) (quoting Burton v. Benner,
140 N.E.3d 848, 851 (Ind. 2020)). “Summary judgment is appropriate ‘if the
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 8 of 21 designated evidentiary matter shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.’” Id. (quoting Murray v. Indianapolis Pub. Schs., 128 N.E.3d 450, 452 (Ind.
2019)); see also Ind. Trial Rule 56(C).
[18] The summary judgment movant invokes the burden of making a prima facie
showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. Burton, 140 N.E.3d at 851. The burden then shifts
to the non-moving party to show the existence of a genuine issue of material
fact. Id. On appellate review, we resolve “[a]ny doubt as to any facts or
inferences to be drawn therefrom . . . in favor of the non-moving party.” Id.
[19] We review the trial court’s ruling on a motion for summary judgment de novo,
and we take “care to ensure that no party is denied his day in court.” Schoettmer
v. Wright, 992 N.E.2d 702, 706 (Ind. 2013). “We limit our review to the
materials designated at the trial level.” Gunderson v. State, Ind. Dep’t of Nat. Res.,
90 N.E.3d 1171, 1175 (Ind. 2018).
I. Plaintiffs’ Respondeat Superior Claim
[20] The School argues that the trial court erred by granting summary judgment to
Plaintiffs on their respondeat superior claim. “For well over a hundred years,
Indiana has recognized the doctrine of respondeat superior—Latin for let the
‘superior make answer.’” Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 460
(Ind. 2018) (quoting BLACK’S LAW DICTIONARY 1505 (10th ed. 2014)).
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 9 of 21 “Under this doctrine, an employer is liable for employees’ tortious acts only if
those acts occurred within the scope of employment.” Id.
[21] “Whether an act falls within the scope of employment is generally a question of
fact.” Id. When, however, “the relevant facts are undisputed and would not
allow a jury to find that the tortious acts were within the scope of employment,
we may conclude as a matter of law that they were not.” Id. Our Supreme
Court explored the scope-of employment rule in Cox and explained:
The scope-of-employment rule emanates from the concept of control. More specifically, it springs from the employer’s control over its employees and their employment activities: the employer controls whom it hires, what employment duties it assigns, how it empowers employees to carry out those duties, and how it guards against harm arising from employment activities.
Although scope-of-employment liability is rooted in this control, it extends beyond actual or possible control, holding employers responsible for some risks inherent in the employment context. Ultimately, 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.
This means that the scope of employment—which determines whether the employer is liable—may include acts that the employer expressly forbids; that violate the employer’s rules, orders, or instructions; that the employee commits for self- gratification or self-benefit; that breach a sacred professional duty; or that are egregious, malicious, or criminal.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 10 of 21 The scope of employment extends beyond authorized acts for two key reasons. First, it is equitable to hold people responsible for some harms arising from activities that benefit them. When employees carry out assigned duties, those employment activities “further the employer’s business” to an appreciable extent, benefiting the employer. But delegating employment activities also carries an inherent risk that those activities will naturally or predictably give rise to injurious conduct. When that happens, the employer is justly held accountable since the risk accompanies the employer’s benefit.
Second, holding employers liable for those injurious acts helps prevent recurrence. Employers can take measures—like selecting employees carefully and instituting procedures that lessen employment dangers—to reduce the likelihood of tortious conduct. Since employers have some control over the risk of injurious conduct flowing from employment activities, imposing liability on employers for that conduct encourages them to take preventive action.
To be clear, the focus in determining the scope of employment “must be on how the employment relates to the context in which the commission of the wrongful act arose.” When tortious acts are so closely associated with the employment that they arise naturally or predictably from the activities an employee was hired or authorized to do, they are within the scope of employment, making the employer liable. But tortious acts are not within the scope of employment when they flow from a course of conduct that is independent of activities that serve the employer.
Id. at 461-62 (internal citations omitted).
[22] Even “criminal conduct that violates an employee’s official duties, an
employer’s express orders, or even a most sacred professional duty may Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 11 of 21 nevertheless be within the scope of employment.” Id. at 463-64. “The critical
inquiry is whether the tortious act arose naturally or predictably from the
employment context.” Id. at 464.
[23] In Cox, our Supreme Court determined that whether an officer’s on-duty sexual
assault of a citizen was within the scope of his employment was a question of
fact for the jury. It is “[b]eyond question” that “cities do not authorize their
police officers to sexually assault people.” Id. at 460. “Indeed, sexual assault is
directly opposed to police officers’ law-enforcement and community-caretaking
functions.” Id. The officer’s conduct, however, was not “so disconnected from
his employment activities that a jury could not find that the assault arose
naturally or predictably from the employment context.” Id. at 463.
Accordingly, the Court held that the trial court improperly granted summary
judgment to the City, and on remand, “the jury must decide if [the officer’s]
employment activities naturally or predictably led to ‘his taking advantage of
the opportunity’ to commit sexual assault by abusing the ‘authority and
proximity and privacy’ of his employment.” Id. at 464 (quoting West ex rel.
Norris v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997)).
[24] The Court reached a different result in Barnett v. Clark, 889 N.E.2d 281 (Ind.
2008). There, a deputy township trustee sexually assaulted a citizen applying
for public assistance, and the citizen filed a complaint against the township
trustee. The trial court granted summary judgment to the trustee on the
respondeat superior claim. In determining whether the deputy trustee’s actions
were within the scope of his employment, our Supreme Court held:
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 12 of 21 Taking the facts of the present case favorable to the plaintiff, as we must, we nevertheless conclude here that the injurious actions of the deputy trustee were not sufficiently associated with his employment duties so as to fall within the scope of the deputy’s employment by the defendant Trustee. . . . Other than perhaps a greeting handshake, the employee was not explicitly or impliedly authorized to touch or confine applicants for assistance. His alleged acts of confining, sexually touching, and raping the plaintiff were not an extension of authorized physical contact. Such acts were not incidental to nor sufficiently associated with the deputy trustee’s authorized duties. They did not further his employer’s business. And they were not motivated to any extent by his employer’s interests. The deputy trustee’s injurious acts did not fall within the scope of his employment for the defendant Trustee, and thus the Trustee is not vicariously liable under the doctrine of respondeat superior.
Id. at 286. Thus, the trial court properly granted summary judgment to the
trustee on the citizen’s claim.
[25] Finally, our Supreme Court considered a case similar to the instant case in
Stropes ex rel. Taylor v. Heritage House Childrens Center of Shelbyville, Inc., 547
N.E.2d 244 (Ind. 1989). There, a disabled child unable to care for himself was
placed at the Heritage House Children’s Center (“Center”), where a nurse’s
aide, Robert Griffin, sexually assaulted the child while changing the child’s
clothing and bedding. Griffin’s duties included feeding, bathing, and changing
the bedding and clothing of residents. A complaint was filed against Griffin
and the Center, and the trial court granted summary judgment to the Center.
[26] On appeal, our Supreme Court considered whether Griffin’s actions were
outside the scope of his employment for purposes of respondeat superior Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 13 of 21 liability. Some of Griffin’s acts were “unquestionably within the scope of his
employment,” like changing the bedding on the child’s bed, undressing the
child, and touching the child’s genitals to bathe him. Stropes, 547 N.E.2d at
249. It was “beyond question,” however, that the sexual abuse was
unauthorized and committed for Griffin’s own gratification. Id. The Court
noted:
The fact that this was a sexual assault is not per se determinative of the scope of employment question. A blanket rule holding all sexual attacks outside the scope of employment as a matter of law because they satisfy the perpetrators’ personal desires would draw an unprincipled distinction between such assaults and other types of crimes which employees may commit in response to other personal motivations, such as anger or financial pressures. Rather, the nature of the wrongful act should be a consideration in the assessment of whether and to what extent Griffin’s acts fell within the scope of his employment such that Heritage should be held accountable.
Rape and sexual abuse constitute arguably the most egregious instances of wrongful acts which an employee could commit on the job and lend themselves to arguably the most instinctive conclusion that such acts could never be within the scope of one’s employment, yet other courts have recognized that the resolution of the question does not turn on the type of act committed or on the perpetrator’s emotional baggage accompanying the attack. Rather, these courts indicate that the focus must be on how the employment relates to the context in which the commission of the wrongful act arose.
Id. at 249.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 14 of 21 [27] The Court held that a jury might find Griffin “acted to an appreciable extent to
further his master’s business” and “that his actions were, ‘at least for a time,
authorized by his employer, related to the service for which he was employed,
and motivated to an extent by [his employer’s] interests.’” Id. at 250 (quoting
Gomez v. Adams, 462 N.E.2d 212, 224-25 (Ind. Ct. App. 1984)). On the other
hand, a jury might find that Griffin’s acts were “so ‘divorced in time, place and
purpose’ from his employment duties as to preclude the imposition of liability
on his employer.” Id. (quoting Gomez, 462 N.E.2d at 223). Accordingly, “[t]he
nature of the acts were, at the very least, sufficiently associated with Griffin’s
authorized duties to escape dismissal on summary judgment.” Id. Thus, the
Supreme Court reversed summary judgment for the Center.
[28] We find Cox and Stropes persuasive here. As in Stropes, Smith’s duties as part of
her employment for the School included caring for K.G.’s “diaper changes and
other needs related to her physical hygiene and overall wellbeing.” Appellants’
App. Vol. II p. 105. Smith was required to “undress [K.G.], clean her genitals,
perianal and anal areas, apply medications/salves if necessary, and dress [K.G.]
afterward.” Id. Smith touched K.G. to help stretch her limbs, to move her
from her chair to other positions, and to calm or reassure her. Smith sexually
abused K.G. while Smith was changing K.G.’s diaper.
[29] As in Stropes, it is “beyond question,” that the sexual abuse was unauthorized
and committed for Smith’s own gratification. Stropes, 547 N.E.2d at 249. The
fact that the sexual assault was unauthorized is, however, “not per se
determinative of the scope of employment question.” Id. Rather, genuine
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 15 of 21 issues of material fact exist, and as in Cox and Stropes, whether Smith was acting
within the scope of her employment is a fact sensitive matter for the jury to
decide. We conclude that the trial court erred by granting summary judgment
to Plaintiffs on the respondeat superior issue, and we remand for a trial on the
issue.
II. Notice of Tort Claim
[30] Next, the School argues that the trial court erred by denying its motion for
partial summary judgment regarding Mother’s individual claims. The School
argues that it is entitled to summary judgment because Mother failed to file a
timely notice of tort claim. Mother, however, contends in part that the School
waived the issue of compliance with the ITCA by failing to raise the issue as an
affirmative defense until years into the litigation and that the law of the case
doctrine bars the School from raising the issue. 3 We agree with Mother.
[31] The Indiana Tort Claims Act’s (“ITCA”) notice of tort claim “requirement is
intended to ensure that government entities have the opportunity to investigate
the incident giving rise to the claim and prepare a defense.” Schoettmer, 992
N.E.2d at 706 (citing Galbreath v. City of Indianapolis, 253 Ind. 472, 477, 255
N.E.2d 225, 228 (1970)). “Like any statute in derogation of the common law,
3 Mother also argues that: (1) Mother’s May 14, 2019 tort claim was timely because her claim is derivative of K.G.’s timely claim and substantially complied with the ITCA; (2) res judicata precludes the School from raising the issue; and (3) Mother’s April 18, 2022 notice of tort claim was timely because the Supreme Court created a new cause of action. Given our resolution of Mother’s waiver argument, we need not address these issues.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 16 of 21 the ITCA ‘must be strictly construed against limitations on the claimant’s right
to bring suit.’” Id. (quoting City of Indianapolis v. Buschman, 988 N.E.2d 791,
794 (Ind. 2013)). “[S]o long as its essential purpose has been satisfied, [the
ITCA] should not function as ‘a trap for the unwary.’” Id. (quoting Galbreath,
253 Ind. at 480, 255 N.E.2d at 229). “‘The question of compliance is not a
question of fact for the jury but ultimately a legal determination to be made by
the court.’” Murphy v. Ind. State Univ., 153 N.E.3d 311, 317 (Ind. Ct. App.
2020) (quoting Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468, 471 (Ind.
1988)).
[32] The ITCA bars tort claims against political subdivisions unless the plaintiffs file
a notice of tort claim within 180 days “after the loss occurred.” 4 Ind. Code §
34-13-3-8(a); Lyons v. Richmond Cmty. Sch. Corp., 19 N.E.3d 254, 259 (Ind.
2014). Indiana Code Section 34-13-3-9, however provides: “If a person is
incapacitated and cannot give notice as required in section 6 or 8 of this
chapter, the person’s claim is barred unless notice is filed within one hundred
eighty (180) days after the incapacity is removed.”
[33] The parties agree that the May 14, 2019 notice was sufficient as to K.G.’s
claims because of her incapacity. See I.C. § 34-13-3-9; see, e.g., City of
Indianapolis v. Hicks, 932 N.E.2d 227, 235 (Ind. Ct. App. 2010) (“Hicks’s
daughter’s status as a minor makes her incapacitated and postpones the
4 On July 1, 2018, Indiana Code Chapter 34-13-3.5 went into effect and governs civil actions against public schools. Neither Plaintiffs nor the School, however, argue that it is applicable here.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 17 of 21 deadline for filing a notice of tort claim until after her minority ends.”), trans.
denied. The parties also agree that Mother did not learn of the sexual abuse
until February 22, 2018, and that the discovery rule applies. See Lyons, 19
N.E.3d at 262 (“When the discovery rule applies, the time for filing does not
begin to run until the plaintiff knows or in the exercise of ordinary diligence
should know of the tort.”). One hundred and eighty days after the discovery of
the sexual abuse was August 21, 2018. The first notice of tort claim, however,
was not filed until May 14, 2019. After the Supreme Court’s December 22,
2021 opinion on Mother’s individual claims, Mother sent a second notice of
tort claim on April 18, 2022. The School argues that Mother’s notices of tort
claim related to her individual claims were untimely.
[34] Mother argues that the School waived compliance with the ITCA by: (1)
admitting in its answer that Plaintiffs’ notice of tort claim was timely and
proper; (2) failing to file an affirmative defense regarding the ITCA; (3) failing
to raise the issue in its first motion for summary judgment; and (4) failing to
amend its answer until the Supreme Court had already addressed the propriety
of Mother’s claims.
[35] In October 2019, the School initially admitted that Plaintiffs’ notice of tort
claim was timely and appropriate. The School then filed a motion for partial
summary judgment regarding Mother’s negligent infliction of emotional distress
claim, and the issue was decided by our Supreme Court in December 2021.
Our Supreme Court held that Mother’s negligent infliction of emotional distress
claim was viable. The School did not seek to raise an ITCA defense until April
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 18 of 21 2022, two and one-half years after admitting that Plaintiffs’ notice of tort claim
was timely and appropriate. The School claimed that it did not raise the ITCA
defense initially because it “knew that the law as it existed at the time of the
filing of their Answer was such that they would prevail on the merits as to any
individual claim of [Mother’s].” Appellees’ App. Vol. II p. 8.
[36] Our Supreme Court addressed the failure of a government entity to raise an
ITCA defense in its original answer in Schoettmer, 992 N.E.2d 702. The
government entity there sought to amend its answer three months after its
initial answer, and our Supreme Court found that the trial court did not abuse
its discretion by allowing the amendment. The Court noted that an ITCA
notice defense is waived if not “asserted in a responsive pleading.” Schoettmer,
992 N.E.2d at 706 (quoting Thompson v. City of Aurora, 263 Ind. 187, 190, 325
N.E.2d 839, 841 (1975)). “An answer is a responsive pleading, and our trial
rules permit a party to amend his pleading by leave of court, which should be
granted ‘when justice so requires.’” Id. (quoting Ind. Trial Rule 15(A)); see also
Ind. Trial Rule 15(C) (noting that “the amendment relates back to the date of
the original pleading”). Our Supreme Court held that, “[a]bsent prejudice to
the non-moving party, . . . such amendments ‘should be liberally allowed.’”
Schoettmer, 992 N.E.2d at 706 (quoting Templin v. Fobes, 617 N.E.2d 541, 543
(Ind. 1993)).
[37] The circumstances here are much different than in Schoettmer. Here, the School
waited years before changing its position on the ITCA defense; in fact, our
Supreme Court had already ruled on the viability of Mother’s individual claim
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 19 of 21 and created a new rule regarding negligent infliction of emotional distress
claims. Mother is clearly prejudiced by the School’s delayed assertion of an
ITCA defense.
[38] Judicial estoppel principles are also relevant here. “Judicial estoppel ‘prevents a
party from asserting a position in a legal proceeding inconsistent with one
previously asserted.’” PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 957 (Ind.
2005) (quoting Meridian Ins. Co. v. Zepeda, 734 N.E.2d 1126, 1133 (Ind. Ct. App.
2000)), abrogated on other grounds by Helms v. Carmel High Sch. Vocational Bldg.
Trades Corp., 854 N.E.2d 345 (Ind. 2006). “A party may properly plead
alternative and contradictory theories, but judicial estoppel precludes a party
from repudiating assertions in the party’s own pleadings.” Id. “The purpose of
judicial estoppel is to protect the integrity of the judicial process rather than to
protect litigants from allegedly improper conduct by their adversaries.” Smith v.
State, 765 N.E.2d 578, 583 (Ind. 2002). “It does so by preventing a party and its
counsel from playing fast and loose with the courts.” Id.
[39] The School allowed this litigation to proceed through summary judgment
proceedings, appellate proceedings in this Court, and appellate proceedings in
our Supreme Court regarding Mother’s individual claim before raising the issue
of the ITCA because the School thought it would “prevail on the merits” of
Mother’s individual claim. Appellees’ App. Vol. II p. 8. Although a party is
generally permitted to amend its pleadings, under the circumstances here, the
School was “playing fast and loose with the courts” by its delay in raising the
ITCA defense. We conclude that, unlike in Schoettmer, the School waived its
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 20 of 21 ITCA defense by failing to present it in a timely manner. Accordingly, the trial
court properly denied the School’s motion for partial summary judgment
regarding Mother’s individual claims.
Conclusion [40] The trial court erred by granting Plaintiffs’ motion for partial summary
judgment regarding Plaintiffs’ respondeat superior claim. The trial court,
however, properly denied the School’s motion for partial summary judgment
regarding Mother’s individual claims. Accordingly, we affirm in part, reverse
in part, and remand for further proceedings.
[41] Affirmed in part, reversed in part, and remanded.
Bailey, J., and Kenworthy, J., concur.
Court of Appeals of Indiana | Opinion 23A-CT-871 | September 27, 2023 Page 21 of 21