Terrell v. Rowsey

647 N.E.2d 662, 10 I.E.R. Cas. (BNA) 650, 1995 Ind. App. LEXIS 207, 1995 WL 100807

• Court: Indiana Court of Appeals
• Decided: March 13, 1995
• Docket: 48A02-9408-CV-481
• Status: Published

Opinions

OPINION

FRIEDLANDER, Judge.

Richard Terrell appeals the trial court's grant of summary judgment in favor of his employer Red Giant Foods, Inc. and its employees and his supervisor, Dale Rowsey.

We affirm.

The facts most favorable to Terrell, the nonmoving party, are that Terrell was employed by Red Giant as a forklift driver. Terrell's supervisor, Rowsey, had been receiving reports from employees that Terrell was drinking on the job. On one specific occasion, a Red Giant manager informed Rowsey that Terrell had been drinking something from under a blanket in his car parked in the company lot. A few days afterward, on February 1, 1991, Rowsey observed Terrell in the same parking lot drinking in his parked car during the noon lunch break. An hour later, Rowsey walked out to the unattended car, opened an unlocked door and found a cooler underneath a blanket on the passenger floorboard. Inside the cooler were one full quart bottle of Miller Lite and

another full can of beer. Rowsey left the car and the beer. Rowsey returned to the car during the afternoon break. As Rowsey approached, he observed Terrell sitting in the car and drinking from a can in an insulated holder and from something in a brown paper bag. Rowsey knocked on Terrell's window. When Terrell opened the window Rowsey immediately smelled what he believed to be beer. Rowsey asked Terrell what he was drinking and Terrell replied he was drinking Pepsi. Terrell refused Rowsey's request to see the Pepsi container. Terrell did comply, however, with Rowsey's request to see what was under the blanket. Terrell lifted the blanket and opened the cooler beneath it, which was empty. Rowsey confronted Terrell with the fact he smelled beer, whereupon Terrell stated that he had drank a beer at home during his lunch break. Rowsey did not believe Terrell's explanation, inasmuch as he had observed Terrell in the company parking lot during lunch. Rowsey then looked through the window onto the floor behind the driver's seat. Rowsey observed a cardboard tray of the type used to hold beer lying on the floorboard. The tray was upside down and underneath it was a brown paper sack. An open bottle protruded from the sack. Rowsey opened the car door approximately six inches and reached behind the driver's seat to grab the bottle, which was empty. Rowsey recognized the bottle as the Miller Lite bottle which had earlier been full. When Rowsey asked Terrell for an explanation Terrell did not respond. Ultimately, at a February 4, 1991 disciplinary meeting, Red Giant terminated Terrell in accordance with its policy against drinking as articulated in its employee handbook. The handbook states:

"DRINKING, DRUGS AND INTOXICATION

Any employee who consumes or possesses any intoxicants, alcohol or controlled substances on company premises, or on company business, will be subject to discharge for the first offense. The Company reserves the right to require chemical screening tests of any employee at any time, if there is some cause to believe they are under the influence of alcohol or controlled substances.

Any employee who reports to work showing evidence of being under the influence of aleohol or drugs in any degree will not be permitted to work. If an employee has already started to work when the condition is discovered, the employee shall be suspended immediately and subject to further disciplinary action, up to and including discharge.

The same rules apply whenever an employee is on company grounds, during nonworking hours."

Record at 111-112.

Terrell filed a January 27, 1998 complaint in two counts against Rowsey and Red Giant. In count one, Terrell alleged that Rowsey broke and entered his car and trespassed upon his car at the express direction of Red Giant and that as a result of such defendants' tortious misconduct, Terrell suffered embarrassment, defamation and loss of quiet enjoyment of his property. In count two, Terrell alleged that Red Giant was grossly negligent in failing to supervise Rowsey.

On October 4, 1998, Rowsey and Red Giant filed a motion for summary judgment. Terrell's response to the motion consisted of a designation to Rowsey's deposition; allegations that Red Giant was responsible for Rowsey's actions and that plaintiff was entitled as against both defendants to punitive damages as a result of their actions. The trial court granted the defendants' motion for summary judgment, stating:

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III. CONCLUSIONS OF LAW

1. This court has jurisdiction over the parties and subject matter hereto.

2. Defendants' intrusion was not wrongful. "There is no absolute right to be free from invasion of privacy Rather, there exists a right to be free from unreasonable invasions of privacy, much as the right to be free from unreasonable invasions of physical security. Berrier v. Beneficial Finance, 284 F.Supp. 204, 205 (N.D.Ind.1964).

8. In light of Terrell's diminished privacy interest (his car was on Red Giants' [sic] property during working hours), Red Giants' [sic] rule against drinking on company property, which includes the right to require chemical screening tests, Red Giants' [sic] obligation to provide employees a safe work place, and the momentary entrance of Terrell's car with no physical contact with Terrell, Terrell cannot, as a matter of law, establish Rowsey acted in such a manner as to "outrage or cause suffering, shame or humiliation" to an employee with "ordinary sensibillity," [sic] Continental Opitcal Company v. Reed, [sic] [119 Ind.App. 648] 86 N.E.2d 306, 308 reh'g denied [119 Ind.App. 648] 88 N.E.2d 55 (Ind.Ct. of App.1949).

4. Defendant's intrusion into Terrell's car was proper because "it is well settled that an employer has a duty to use reasonable care to provide his employees with a reasonable [sic] safe working place ...," City of South Bend v. Estate of Rozwarski, 404 N.E.2d 19, 21 (Ind.Ct. of App.1980); Accord Whitebirch v. Stiller, 580 N.E.2d 262, 264 (Ind.Ct. of App.1991). IOSHA mandates that "each employer shall establish and maintain conditions which are reasonably safe and healthful for employees, and free from recognized hazards that are causing or likely to cause death or serious physical harm to employees." Ind.Code 22-8-1.1-2. Courts have construed IO-SHA's federal counterpart to require an employer to prevent foreseeable hazards caused by employees. Seq, e.g. General Dynamics Corp. v. OSHRC, 577 [599] F.2d 458 (1st Cir.1979).

5. Indiana does not recognize the tort of negligent supervision as alleged in Terrell's complaint. Gossage v. Little Caesar Enterprises, Inc., 698 F.Supp. 160, 162 (S.D.Ind.1988).

6. As an independent justification and ground for the judgment entered by this court, this court finds that Terrell's claims are barred by the exclusivity provision of the Indiana Workers Compensation Act, Indiana Code 22-8-2 et seq. The court notes that this ground for summary judgment was raised by Defendants but was never responded to either in briefing or in oral argument by Terrell Accordingly, the court finds that this is an independent ground in support of the court's judgment in favor of the defendants.

7. As further independent ground for its judgment for defendants, this court finds that Plaintiff has not contravened the material elements of the Defendants' Motion for Summary Judgment. In the Plaintiff's one-page "Response to Motion for Summary Judgment," Plaintiff designates as his evidence "The Deposition of Dale Row-sey." Such a perfunctory designation as a matter of law raises no issue for this court to consider on summary judgment, Rosi v. Business Furniture Corp., 615 N.E.2d 421, [431] 434 (Ind.1993).

JUDGMENT

For the reasons more fully set forth herein, it is ordered, adjudged and decreed that Defendants' Motion for Summary Judgment is granted on all basis [sic] presented and that Plaintiff shall take nothing by his Complaint from these defendants. Costs to Plaintiff.

s/s Richard Payne Special Judge Richard Payne

DATE: 6/16/94"

Record at 248-250. presents one issue: Terrell appeals and

Did the trial court err in granting the defendants' motion for summary judgment?

Preliminarily, we note the trial court declared Terrell's action to be precluded by the exclusivity provision of the Worker's Compensation Act. Terrell's injuries, however, are not physical and thus are not covered by the Act. In Perry v. Stitzer Buick GMC, Inc. (1994), Ind., 637 N.E.2d 1282, the supreme court held that the Act did not apply to a plaintiff who had sustained neither physical injury nor loss of physical function. Terrell alleges that he was defamed and that he suffered embarrassment and loss of quiet enjoyment of his property. Because Terrell's claims present no injuries covered by the Act, they are not foreclosed by its exclusivity provision.¹

Terrell alleges that a material issue of fact remains which precludes summary judgment. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C). The burden is on the moving party to prove there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Onee the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial Midwest Commerce Banking Co. v. Livings (1998), Ind.App., 608 N.E.2d 1010. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court and liberally construe all designated evidentiary matter in favor of the nonmoving party. Rotec, Div. of Orbitron, Inc. v. Murray Equipment, Inc. (1998), Ind.App., 626 N.E.2d 588. We may sustain a summary judgment upon any theory supported by the designated materials. TR. 56(C). In his response to the motion for summary judgment, Terrell designated Row-sey's deposition to the trial court. Terrell failed to include any citations to the record other than the reference to Rowsey's deposition. Trial Rule 56(C) expressly requires a nonmoving party to identify specifically the parts of pleadings, depositions, answers to interrogatories, and admissions on which he relies. Rosi v Business Furniture Co. (1993), Ind., 615 N.E.2d 481. The nonmov-ant will not survive summary judgment merely by designating entire portions of the record, such as depositions. Id. Furthermore, Terrell attempts to utilize Rowsey's affidavit in support of his motion for summary judgment to prove that a material dispute of fact exists. Terrell, however, failed to designate Rowsey's affidavit to the trial court. We are forbidden to reverse a summary judgment unless the evidence has been specifically designated to the trial court. TR. 56(H). Terrell's argument that he satisfied the designation requirement by an oral designation to the trial court also fails, inasmuch as his brief does not include a citation to the oral designation in the record.

Since no material dispute of fact exists, our next step is to determine whether Rowsey and Red Giant are entitled to judgment as a matter of law. In his complaint, Terrell made four allegations, including:

1. Rowsey broke and entered Terrell's car at the express direction of Red Giant;

2. Rowsey trespassed upon Terrell's car at the express direction of Red Giant;

3. As a result of this tortious misconduct Terrell suffered embarrassment, defamation and loss of quiet enjoyment of his property; and

4. Red Giant was grossly negligent in failing to supervise Rowsey.

No cause of action exists in Indiana for tortious breaking and entering or negligent performance of an employment contract, and we summarily affirm the trial court's judgment with regard to Terrell's first and fourth allegations. Concerning Terrell's second allegation of trespass upon his car, no case has been decided in Indiana regarding the claim of trespass to an automobile. The Restatement (Second) of Torts (1965), § 218 states a trespasser is liable to the possessor of a chattel only when:

"(a) he dispossesses the other of the chattel, or

(b) the chattel is impaired as to its condition, quality, or value, or

(c) the possessor is deprived of the use of the chattel for a substantial time, or

(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor had a legally protected interest."

The facts are clear that Rowsey did not dispossess Terrell of his automobile and it sustained no impairment as to its condition, quality or value when Rowsey opened the door. Furthermore, Terrell suffered no bodily harm due to Rowsey's actions, and no harm came to any person or thing in which Terrell held a legally protected interest. Although Terrell might have been deprived of the use of his car when Rowsey opened the door, it was not for a substantial time, inasmuch as Terrell testified the entire episode lasted from three to five minutes and Rowsey made no attempt to utilize his automobile. Rowsey and Red Cant prevail on the trespassing to an automobile claim as a matter of law.

Although Terrell did not expressly raise an invasion of privacy claim in his complaint, both the trial court and the appellees have interpreted Terrell's complaint to include such a claim. We are mandated by TR. 8(F) to construe pleadings in such manner as "to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points." Thus, we liberally interpret Terrell's complaint to include an action for invasion of privacy.

The action for invasion of privacy relevant to the present case arises upon "the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibility." Continental Optical Co. v. Reed (1949), 119 Ind.App. 643, 86 N.E.2d 306, 308. The trial court determined that no wrongful intrusion of privacy occurred because Terrell had no absolute right to be free from an invasion of privacy, but rather a right to be free from unreasonable invasions of privacy. The trial court held that the intrusion was not unreasonable in light of the following: Terrell's diminished privacy interest while on Red Giant's property, Red Giant's rule against drinking on company property, which includes the right to require chemical screening tests, Red Giant's obligation to provide employees a safe work place, and the momentary entrance of Terrell's car with no physical contact with Terrell, We agree with the trial court that, as a matter of law, Rowsey's actions do not offend a person of ordinary sensibility. Terrell was on his employer's property and he admitted to drinking alcohol, despite Red Giant's policy against drinking. Furthermore, Rowsey acted out of responsibility for the safety of Terrell and his fellow employees and the intrusion was minimal. For the foregoing reasons we affirm the judgment of the trial court.

Judgment affirmed.

GARRARD, J., concurs. SULLIVAN, J., dissents in part and concurs in part with separate opinion.

1 . Additionally, we summarily dispose of Terrell's claims that the trial court improperly adopted the appellees' proposed findings. Despite Terrell's argument to the contrary, the standard of review in a summary judgment proceeding is not altered when the trial court enters findings. Landau v. Bailey (1994), Ind.App., 629 N.E.2d 264.