Indiana Court Decisions: Sept. 22-Oct. 5, 2022

7th Circuit Court of Appeals

Sept. 27

Elaine Scaife v. United States Department of Veterans Affairs and Denis R. McDonough, Secretary of Veterans Affairs

21-1152

Black woman loses appeal of judgment for VA on employment discrimination claims

A Black woman who sued the VA for alleged employment discrimination has failed to overturn the grant of summary judgment to the federal agency, with the 7th Circuit Court of Appeals agreeing with a lower court that the woman failed to prove discrimination based on her race or gender.

Elaine Scaife began working for the U.S. Department of Veterans Affairs in July 2010 at the Roudebush Veterans Affairs Medical Center in Indianapolis. She was hired as a human resources specialist and regularly received “outstanding” or “excellent” marks on her annual performance reviews.

About five or six years into the role, Scaife began working for Gavin Earp, who had transferred from a VA facility in Illinois. Earp reportedly had a reputation for mistreating women at his former post, and Scaife alleged he exhibited the same behavior in Indianapolis.

In one incident in August 2016, Earp told Scaife and another Black female employee that they needed to start routing all employment classifications for him to review. He then made a request that they be “less bureaucratic” in their classifications, meaning they should classify certain positions higher if they were told to do so. When Scaife questioned whether doing so would violate rules and regulations, Earp became “aggressive” and made her believe that she would be disciplined if she didn’t “loosen classifications.”

One month later, Scaife classified another HR specialist lower than Earp wanted, so he stormed into her office and accused her of breaking the law. Earp also yelled at Scaife, then returned to her office later to yell again.

Scaife conferred with a national VA employee who confirmed that Earp was asking her to break the law. She also contacted an Equal Employment Opportunity officer to ask about the process for addressing a hostile work environment.

Around the same time, Scaife was informed that Brian Fogg, the chief of the police service, who is a white male, had referred to her with a racial slur in a meeting. A second person confirmed that story and told Scaife that Fogg was mad because she would not classify a certain position at the level he wanted.

Scaife responded by reporting Fogg to Chari Weddle, her human resources officer and Earp’s direct supervisor. Also, in October 2016, the VA received notice that Scaife had filed an EEO charge.

Less than two weeks later, Weddle sent Scaife a formal counseling email claiming that Scaife had, for the second time, interjected her “personal opinion in place of [her] professional opinion” when discussing classifications. That included a text Scaife had sent Weddle when Earp had yelled at her for not classifying a position as he wanted.

Weddle wrote that her email did not constitute a disciplinary action, but it would be placed in Scaife’s personnel file and “may be used to determine an appropriate penalty should further administrative action be considered.”

Eventually, Scaife applied and was hired for a job as an HR specialist at a VA center in California with the same pay.

After her transfer, Scaife filed a Title VII lawsuit against the VA for a race- and gender-based hostile work environment, retaliation and constructive discharge. The Indiana Southern District Court granted summary judgment to the federal agency, and the 7th Circuit affirmed in Elaine Scaife v. United States Department of Veterans Affairs and Denis R. McDonough, Secretary of Veterans Affairs, 21-1152.

The appellate court first determined Scaife failed to provide enough evidence to support a hostile work environment based on race, gender or both.

As to race, specifically, Judge Candace Jackson-Akiwumi wrote that Scaife “is unable to show that Chief Fogg’s use of the N-word was sufficiently severe or pervasive when considering the totality of the circumstances, which is our charge in evaluating her claim.” That’s because she heard about the slur from a co-worker several months after the fact, and because Fogg did not have direct supervisory authority over her.

Similarly, on the question of gender, “Scaife fails to provide sufficient evidence that the alleged harassment was based on her gender or that the alleged harassment was severe.”

“Scaife claims that Earp, her direct supervisor, threatened her, requested that she break the law, and consistently yelled at her — all creating a hostile work environment,” Jackson-Akiwumi wrote. “Scaife, however, has failed to show that these incidents were based on gender.

“… Moreover, even if Scaife could tie Earp’s conduct to her gender, Scaife failed to provide sufficient evidence that Earp’s conduct, though unprofessional, was severe or pervasive,” the judge continued. “Scaife always worked at or above the legitimate expectations of her employer, receiving an ‘Outstanding’ or ‘Excellent’ on her annual performance rating, and the record does not otherwise reflect that Earp’s conduct interfered with her work performance.”

Further, as for a hostile work environment based on race and gender together, the appellate court determined that even when considered in the aggregate, Scaife’s claims were “not enough to show that ‘the workplace was sufficiently severe or pervasive to alter the conditions of [Scaife’s] employment and create an abusive working environment.’”

Turning next to Scaife’s retaliation claim, the 7th Circuit ruled that Weddle’s counseling email “did not come with a low performance rating or even a pay cut,” so it could not constitute an adverse action on its own.

And finally, as to constructive discharge, the appellate court concluded, “Scaife cannot leave her old job for a new one with the same employer, without any apparent repercussion, and establish a constructive discharge claim absent evidence that she was forced out.”

“Here, Scaife may have received a written counseling email, but nothing in that email indicated to Scaife that her time at the VA was coming to an end,” Jackson-Akiwumi concluded. “Her job security was not in peril, nor were her job prospects: she applied for and accepted the same position, for the same pay, with a different VA facility.”

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Oct. 3

Estate of Eric Jack Logan v. City of South Bend, Indiana, and Ryan O’Neill

21-2922

7th Circuit affirms for ex-officer in fatal shooting of South Bend Black man

The family of a Black South Bend man who was fatally shot by a now-resigned white police officer found no relief from the 7th Circuit Court of Appeals after it concluded that the officer gave the man “a chance to live” before shooting.

Last year, the U.S. District Court for the Northern District of Indiana entered summary judgment for former South Bend police officer Ryan O’Neill on claims that he violated Eric Jack Logan’s rights under the Fourth and 14th amendments when he shot and killed the man. The 7th Circuit affirmed that ruling.

At the time of the incident in June 2019, O’Neill fired at Logan while responding to a report of a man breaking into vehicles in the parking lot of a local apartment complex. According to a deposition and affidavit from O’Neill — the only living eyewitness — Logan was holding a knife above his head and was advancing toward O’Neill before he threw the knife, hitting the officer in the arm.

O’Neill then fired his gun, hitting Logan in the torso. An ambulance was called but Logan died at the hospital.

After losing in the district court, Logan’s estate appealed to the 7th Circuit, which affirmed in Estate of Eric Jack Logan v. City of South Bend, Indiana, and Ryan O’Neill, 21-2922.

“The Estate does not deny that Logan had a hunting knife; ignored commands to drop the knife, stand still, or get down; advanced on O’Neill; and threw the knife at him. But the Estate contends that one of O’Neill’s multiple descriptions of these events implies that Logan threw the knife a second or so before O’Neill pulled the trigger. If that is the sequence, the Estate submits, then O’Neill was safe (Logan was no longer armed) and could not use deadly force,” wrote Judge Frank Easterbrook, joined by Judges Michael Scudder and Candace Jackson-Akiwumi.

“Moreover, the Estate contends, a jury might doubt O’Neill’s version of events because he did not activate his body camera until he had fired, and he has been convicted of ghost employment, a felony in Indiana,” Easterbrook continued. “If O’Neill is not credible, the argument goes, then a jury could find that he used unreasonable force.”

But the 7th Circuit concluded that litigation must be resolved on the evidence that exists in the case and that “(w)hen an officer who used deadly force is the only possible witness, a decedent’s estate is unlikely to succeed unless physical evidence contradicts the officer’s account.”

Here, the court said, the physical evidence of the bullet track was consistent with O’Neill’s account.

“Disbelief of the only witness is not proof that the opposite of the witness’s statements is true; disbelief would mean that the record is empty, and on an empty record the plaintiff loses, because the plaintiff has the burdens of production and persuasion,” Easterbrook wrote.

Further, the appellate court rejected the estate’s argument that O’Neill’s statement — “He threw a knife at me, so I shot him” — admitted to a temporal sequence of knife first, shot second. The court noted that the use of force must end “after a suspect has been subdued” but that Logan was “still on his feet and advancing” when he was shot.

Relatedly, the 7th Circuit wrote that the use of force remains reasonable after a suspect employs a weapon, has not surrendered and thus remains dangerous. It declined to align with the estate’s assertion that because O’Neill fired only two shots, he believed he was safe.

“O’Neill knew that he had hit Logan with his second shot, which induced Logan to surrender. The idea that police officers must keep shooting a suspect in order to establish their right to have fired in the first place is perverse,” Easterbrook wrote. “Such a principle would induce officers to empty their magazines — making sure that the suspect dies — instead of using the least force necessary to end the hazard. O’Neill left Logan with a chance to live and should not be penalized for doing so.

“The fact that many shootings by police eliminate an important source of evidence is troubling, but litigation remains tied to the record,” the court concluded. “This record compels a decision for O’Neill.”

Court of Appeals of Indiana

Sept. 28

Jerry Dixon v. Shiel Sexton Company, Inc.

22A-CT-847

COA: Contractor not liable for worker’s slip and fall

A construction worker who slipped and fell while trying to step from a ladder onto a scaffolding platform was unable to regain his footing before the Court of Appeals of Indiana, which found the contractor’s focus on safety did not indicate a duty of care.

Jerry Dixon filed a complaint for injuries he sustained in a fall from a scaffolding platform at a construction site. Although his employer, subcontractor Biancofiori Masonry Inc., had erected the scaffolding, Dixon alleged his injuries were caused by the negligence of the general contractor on the project, Shiel Sexton Company Inc.

The Marion Superior Court granted Sexton’s motion for summary judgment and the Court of Appeals affirmed on Sept. 28 in Jerry Dixon v. Shiel Sexton Company, Inc., 22A-CT-847.

Dixon had argued that Shiel Sexton exceeded its designated responsibilities and actually assumed a duty of care for his safety. He pointed to the contractor’s conduct, which included utilizing safety managers and giving them the authority to address safety violations, requiring subcontractors to adhere to safety rules and conducting weekly inspections as indicative of its duty of care.

The Court of Appeals found that while Shiel Sexton was responsible for promoting safety by supervising all safety precautions and programs, the subcontractor agreement with BMI stated the subcontractor had the “sole responsibility” for the safety of its workers and would be liable for “each hazardous condition … .”

“Based on our review of the record,” Judge Elaine Brown wrote for the court, “we conclude the designated evidence establishes that Sexton’s actions regarding safety at the Project fell within the scope of its contractual obligations to the Owner, and it did not assume a duty of care with respect to the safety of BMI employees through its actions to supervise or ensure compliance with general safety requirements imposed by contract.”

In the Matter of Z.D., a Child Alleged to be in Need of Services J.O. (Father) v. Indiana Department of Child Services

22A-JC-875

Father who tried to attend online CHINS hearing in person secures COA reversal

A Marion County father who mistakenly tried to attend a child in need of services hearing in person instead of online shouldn’t have been denied a new factfinding hearing, the Court of Appeals of Indiana has ruled.

Father J.O. and mother K.D. are the parents of child Z.D., who was born in May 2017. In November 2021, when Z.D. and her half-siblings were living with their mother, the Department of Child Services filed a petition alleging the children were CHINS.

DCS claimed that K.D. was abusing drugs and that “[J.O’s] whereabouts are currently unknown.” It also alleged J.O. “cannot keep his child safe while in the care and custody of Mother.”

An initial hearing was held on Nov. 4. K.D. was present, but J.O. had not been served with a summons and was not present, so the hearing was continued until Dec. 2. On that date, the father still had not been served and was not present, so the hearing was continued until Dec. 9.

J.O. was finally served on Dec. 3, but he did not appear on Dec. 9. The Marion Superior Court set another hearing for Dec. 16 and J.O. again failed to appear, so the court set the factfinding hearing for Feb. 24, 2022.

On Dec. 22, a DCS attorney sent J.O. a letter about the upcoming hearing saying they had requested that the father be defaulted if he didn’t show up. The letter gave the address of the courthouse but also stated at the end that the hearing would occur virtually.

Eight days before the hearing, DCS’s attorney sent J.O. the letter again.

The hearing was held as scheduled. K.D. appeared via Webex and admitted that her daughter is a CHINS. Father did not appear via Webex, and the court proceeded without him, ultimately determining K.D. was a CHINS.

After the hearing ended, “the bailiff notified the Court that [Father] had appeared in person.” The court then set another hearing for March 3 “to address [Father’s] portion of this matter.”

At that hearing, J.O. explained that he had received the letter about the hearing but went to the courthouse instead of appearing virtually because he read only the first part of the letter.

The court confirmed its CHINS finding but appointed J.O. an attorney for the dispositional hearing. At that hearing, the court declined to hold an evidentiary hearing, denied J.O.’s request for a contested fact finding hearing, reaffirmed the CHINS adjudication and ordered the father to participate in the “Father’s Engagement” program.

On appeal, J.O. argued that DCS did not present sufficient evidence about him at the factfinding hearing to support the CHINS adjudication and that after the hearing — once the trial court learned he had appeared at the courthouse — it erred by not “conducting an evidentiary hearing on Father’s attendance at the fact-finding hearing to determine if Father was entitled to a contested CHINS fact-finding hearing.”

While the COA found the trial court didn’t err in the CHINS determination given the lack of information it had about the father, the appellate court also concluded the record makes clear the trial court should’ve granted J.O. a new factfinding hearing.

“As an initial matter, we disagree with DCS that Father invited any error by failing to read the pre-hearing letter in its entirety. It is true that the letter said the hearing would ‘occur’ virtually via Webex and provided instructions on how to appear virtually. But nothing in the letter indicated that Father was required to appear virtually or was prohibited from appearing in person,” Judge Nancy Vaidik wrote. “To the contrary, the first paragraph of the letter — the part Father read — said Father would be defaulted if he failed to ‘appear at the next court hearing’ and then gave the physical location of the hearing … without mentioning virtual proceedings. There was no reason to include the physical address of the court if appearing in person wasn’t at least an option.

“… A parent can forfeit that right by failing to appear, but that is not what happened here,” Vaidik continued. “Father testified that he arrived at the courthouse at 10:38 a.m. on February 24 — a few minutes late but while the fact-finding hearing was still in progress — and neither the trial court nor DCS disputed that assertion. The court emphasized that it was not told about Father’s presence until after the hearing ended, but that fact should not be held against Father.

“Nothing in the record suggests that Father was not present at the courthouse while the fact-finding hearing was being held. On this record, Father’s in-person appearance at the courthouse was sufficient to preserve his constitutional right to a contested fact-finding hearing.”

Vaidik further noted that if a “lay person” tries to attend a virtual conference in-person, courts should be careful in concluding it was intentional.

“Courts and lawyers are well aware that many proceedings that used to be held in person are now being held remotely. Not all lay people are,” she wrote. “There may come a time when that changes, but we aren’t there yet. Until then, when a party’s first appearance in a case is made in person when it should have been virtual, the court should be hesitant to treat that appearance as defiant or otherwise improper.”

The case is In the Matter of Z.D., a Child Alleged to be in Need of Services J.O. (Father) v. Indiana Department of Child Services, 22A-JC-875.

Matthew Hayko v. State of Indiana

21A-CR-2407

Appellate court splits in first impression ‘he said, she said’ child molesting case

Court of Appeals of Indiana judges parted ways on an issue of first impression in a “he said, she said” child molestation case, with the majority finding that a man was not given a fair opportunity to challenge the “she said” part of the evidence.

However, a dissenting judge expressed concern about how the decision could potentially confuse character evidence regarding child victims.

In the case of Matthew Hayko v. State of Indiana, 21A-CR-2407, Matthew Hayko was convicted of Level 4 felony child molesting and was sentenced to eight years, with two years suspended to probation.

At his trial, during voir dire, the potential jurors were asked about witness credibility, their opinions about the truthfulness of children as witnesses, and their perceptions about how children would react to discussing sexual topics.

During the state’s case-in-chief, Tammy Lampert, the executive director of a children’s advocacy center, testified over objection about delayed disclosure and children’s reactions to molestations.

For his part, Hayko asked to present testimony from witnesses regarding their opinion character of V1, his daughter.

In the offer to prove, the three witnesses testified independently about their interactions with the child and their opinion that she was untruthful.

The Spencer Circuit Court, however, concluded Hayko had not laid a proper foundation for that testimony and thus declined to admit it.

On appeal, Hayko argued in part that the trial court’s conflation of the foundational requirements for reputational testimony under Indiana Evidence Rule 608, as to his proffered opinion testimony under that rule, denied him the right to present a defense.

Parting ways in what it declared to be a case of first impression, the Court of Appeals agreed that the trial court misinterpreted Rule 608.

“This case alleged violations of no greater position of trust than that of a parent to his child, and Hayko’s conviction turned on the jury’s credibility determination in this ‘he said, she said’ case,” Senior Judge John Baker wrote. “Finding that the court misinterpreted the Rule and thus did not allow Hayko the fair opportunity to challenge the ‘she said’ part of the evidence with his proffered witnesses, we reverse and remand for a new trial” on the issue of the admissibility of the proffered opinion testimony under Rule 608(a).

Finding no caselaw that sets out the foundational requirements for admissibility of opinion testimony, the majority concluded that the court’s discussion covered only the requirements for reputational evidence.

“The opinion testimony clearly was relevant to the issue of V1’s credibility,” Baker wrote for the majority, joined by Judge L. Mark Bailey.

“Witnesses were allowed to contradict Hayko’s version of the incident leading to the allegations,” the majority held, “but because of the court’s ruling, Hayko was left to defend his version without available opinion testimony about V1’s character for truthfulness or untruthfulness.”

Further, the majority opined that, as it pertains to Rule 608, the admission of opinion testimony should not be limited in the way reputation evidence is limited. It concluded that a witness’s testimony about their perception of a victim’s character for truthfulness at the time the accusations are made is “particularly helpful.”

“These are two distinct types of evidence under the Rule and the foundation for the testimony as opinion testimony had been met in this instance,” Baker wrote. “For these reasons, we conclude that the court abused its discretion by ruling that the testimony was inadmissible.”

To that point, the appellate majority found the trial court’s error was not harmless, noting that Hayko’s conviction turned on the jury’s witness credibility assessment. As such, the error affected the essential fairness of the trial.

However, the COA agreed with the trial court’s admission of Hayko’s statement to police that he didn’t want to call the child a “liar,” noting that the issue is likely to recur in the new trial.

“The trial court did not abuse its discretion by admitting the statement in evidence as it was not a custodial statement made without the benefit of Miranda warnings,” the majority wrote.

As for the state’s characterization of Hayko’s statement as an admission, the majority observed that attorneys “are permitted to characterize the evidence, discuss the law, and attempt to persuade the jury to a particular verdict.”

“On retrial, the court will be in the best position to determine whether the closing arguments stay within those parameters should Hayko choose to challenge the State’s characterization of the evidence,” it wrote.

Judge Elizabeth Tavitas concurred in part and dissented in part in 12-page separate opinion. She agreed with the majority as to the admission of Hayko’s statement to police but split from the conclusion that the trial court erred by excluding the proffered opinion testimony. .

“Because admission of such opinion testimony has the potential to be problematic, we should give trial courts wide leeway when deciding to admit or exclude such evidence,” Tavitas opined. “Here, the trial court decided to exclude the opinion of character testimony proffered by Hayko, a decision that was well within the trial court’s discretion in such matters.”

The dissenting judge noted that Hayko sought to admit testimony from three witnesses regarding their opinion of the victim’s character for veracity, rather than the victim’s reputation for veracity.

“In the present case, I am unable to conclude that the trial court abused its considerable discretion by excluding the evidence of Hayko’s character witnesses,” the dissenting judge concluded. “All three character witnesses had some contact with the victim, usually at family gatherings, a few times per year.

“All three witnesses would have testified that, in their opinion, the victim had a character for untruthfulness,” she continued. “None of the proposed character witnesses, however, had seen the victim in the two years before trial due to a protective order.

“… Even if the victim happened to be a fibber as a young child, does this mean that she would lie, under oath, as a more mature teenager?” Tavitas continued. “I fear that allowing such character evidence in this case could open a Pandora’s box of minimally relevant and potentially confusing character evidence, especially regarding child victims.”

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Sept. 30

Kelly Lyons v. Harold Parker

22A-JP-675

2nd time around, COA affirms modification of custody in father’s favor

After overturning a previous modification order because the mother was unrepresented, the Court of Appeals of Indiana has affirmed the trial court’s second order giving the father primary custody of his two girls.

The Putnam Superior Court modified custody in favor of Harold Parker, the father, in February 2021.

Reports from teachers and the guardian ad litem indicated that while living their mother, Kelly Lyons, Parker and Lyons’ girls were struggling academically and appeared at school unbathed and in dirty clothes.

Lyons was granted parenting time and ordered to pay $83 per week in child support. Lyons appealed and the Court of Appeals reversed in August 2021. At issue was the mother’s lack of counsel.

Specifically, Lyons had asked for a continuance of the modification hearing, saying she wanted a find a new attorney. However, the trial court denied her motion and the mother had to appear pro se.

On remand, a special judge was selected and a new modification hearing took place in February 2022.

The outcome was the same, with the father being granted primary custody while the mother was given parenting time and ordered to pay child support, including $1,386 in arrearages.

Again the mother appealed, but this time, the appellate court affirmed in Kelly Lyons v. Harold Parker, 22A-JP-675.

The Court of Appeals found the evidence that the girls were thriving under the care of their father supported the trial court’s decision to modify custody. Also, the trial court did not abuse it discretion in the calculation of the arrearages.

Finally, Lyons had contended that the trial court abused its discretion by requiring that her midweek parenting time visits with the girls take place in Greencastle, where they lived with their father. She argued the trial court could not include such a provision without finding the parenting time might endanger the girls’ health or significantly impair their emotional development.

The Court of Appeals countered that the mother failed to show the trial court restricted her parenting time when, in fact, she was granted slightly more than the four-hour-per-week limit for midweek visits.Instead, the trial court’s midweek parenting time condition did not run afoul of state statutes or require a showing of endangerment.

“Parenting time and travel limitations are two separate issues, erroneously commingled here by Mother,” Judge Robert Altice wrote for the appellate court. “And the record establishes that the distance between the parents had been an ongoing issue in this case regarding midweek parenting time, causing Mother to seek modification of Father’s midweek parenting time in January 2020. Mother has failed to establish that the trial court abused its discretion by requiring her to exercise her midweek parenting time in Greencastle.”

Jennifer R. Holmgren v. State of Indiana

21A-CR-2756

COA remands after finding teacher’s aide’s 6th Amendment rights violated in child molesting case

A former teacher’s assistant sentenced to more than 40 years on child molesting charges could win a partial resentencing after she presented an issue of first impression to the Court of Appeals of Indiana, which held her Sixth Amendment rights were violated.

Jennifer Holmgren, who was employed as a paraprofessional at an elementary school with the Tippecanoe County School Corporation, was convicted of Level 1 felony child molesting, Level 4 felony child molesting and Class A misdemeanor inappropriate communication with a child.

The Tippecanoe Superior Court sentenced her to an aggregate of 47 years in the Department of Correction, with five years suspended to probation.

On appeal, Holmgren argued that her Sixth Amendment rights were violated when she was classified as a credit restricted felon and when she was sentenced under Indiana Code § 35-50-2-4(c) based upon a fact found by the trial court, not the jury — specifically, that the victim was under the age of 12.

The Court of Appeals partially affirmed, first rejecting Holmgren’s argument regarding her status as a credit restricted felon. The COA found Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny were inapplicable.

In a matter of first impression, however, the appellate court agreed that Holmgren’s Sixth Amendment rights were violated when she was sentenced to 40 years on Count II — Level 1 felony child molesting — under I.C. 35-50-2-4(c) based upon a fact not found by the jury.

“We conclude that, because the jury here was not presented with the determination of whether B.E. was under the age of twelve when he was molested, the trial court could not sentence Holmgren under Indiana Code Section 35-50-2-4(c) without violating Holmgren’s Sixth Amendment rights,” Judge Elizabeth Tavitas wrote.

“Our Supreme Court has held: ‘Where we find an irregularity in a trial court’s sentencing decision, we have the option to remand to the trial court for a clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at the appellate level,’” Tavitas continued, quoting Baber v. State, 842 N.E.2d 343, 345 (Ind. 2006), cert. denied, 549 U.S. 855, 127 S. Ct. 128 (2006).

“We elect the first option here. Accordingly, we reverse and remand for a new sentencing hearing regarding Count II in which the State: (1) may elect to prove before a jury that B.E. was molested when he was under the age of twelve; or (2) have Holmgren resentenced for Count II pursuant to Indiana Code Section 35-50-2-4(b).”

The case is Jennifer R. Holmgren v. State of Indiana, 21A-CR-2756.

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Oct. 4

Carla Tinsley-Williamson, as Guardian of Ethan M. Tinsley v. A.R. Mays Construction, Inc., American Multi-Cinema, Inc., and Largo Theater Construction, Inc.

21A-CT-2230

Movie theater contractor not liable for construction worker’s on-the-job injuries, COA affirms

The guardian of a man who was injured while working on a movie theater construction project has failed to convince the Court of Appeals of Indiana that a subcontractor for AMC Theatres owed the man a duty of care.

In 2018, Ethan Tinsley fell from a 22-foot, unsecured scaffolding while installing a sound system for a new American Multi-Cinema Entertainment, or AMC, theater in Plainfield. Tinsley, who was unequipped with protective gear at the time, suffered serious injuries from the fall.

Tinsley was an employee of Everything Cinema, who had been hired by AMC as an independent contractor to install the sound systems for the Plainfield theater project.

AMC also had other contracts running at the same time, including an agreement with LTCI Ltd., who in turn hired A.R. Mays Construction Inc.

Carla Tinsley-Williamson sued A.R. Mays on Tinsley’s behalf, alleging that A.R. Mays’ contractual duties of care under the LTCI-A.R. Mays contract extended to Tinsley as an employee of Everything Cinema. As such, she argued that A.R. Mays acted negligently when it did not protect Tinsley under those duties.

A.R. Mays moved for partial summary judgment on the issue of its purported contractual duties of care to Tinsley. The Hendricks Superior Court granted A.R. Mays’ motion and certified its order for interlocutory appeal.

The Court of Appeals affirmed in Carla Tinsley-Williamson, as Guardian of Ethan M. Tinsley v. A.R. Mays Construction, Inc., American Multi-Cinema, Inc., and Largo Theater Construction, Inc., 21A-CT-2230.

The appellate court found that A.R. Mays owed no duties of care to Tinsley under its contract with LTCI. It noted that Tinsley’s reliance on Ryan v. TCI Architects/Eng’rs/Cont’rs, Inc., 72 N.E.3d 908 (Ind. 2017), was misplaced.

“Nothing in the designated evidence demonstrates that Everything Cinema, Tinsley’s employer, was a subcontractor or even a sub-subcontractor of A.R. Mays,” Judge Paul Mathias wrote. “To the contrary, the designated evidence makes clear that Everything Cinema was an independent contractor to AMC, and A.R. Mays had no contractual relationship to Everything Cinema directly or through an intermediate subcontractor.

“Therefore,” Mathias continued, “A.R. Mays’s contractual duties of care under the LTCI-A.R. Mays contract were not applicable to the employees of Everything Cinema.”

The COA thus agreed with the trial court that A.R. Mays’ designated evidence affirmatively negated an element of Tinsley’s negligence claim, namely, whether A.R. Mays owed Tinsley a duty of care.

“We affirm the trial court’s entry of partial summary judgment for A.R. Mays,” it concluded.

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Oct. 5

Keller J. Mellowitz, on behalf of himself and all others similarly situated v. Ball State University and Board of Trustees of Ball State University and State of Indiana

22A-PL-337

Ball State student may proceed in COVID breach-of-contract class action against university

A student’s class-action lawsuit filed against Ball State University for COVID-related closures can proceed, the Court of Appeals of Indiana has ruled. The appellate court determined that a statute prohibiting such lawsuits impermissibly conflicts with the Indiana Trial Rules.

In May 2020, college student Keller Mellowitz filed a putative class action complaint against Ball State and its board of trustees in response to closures and remote instruction prompted by the COVID-19 pandemic. Specifically, Mellowitz asserted claims for breach of contract and unjust enrichment based on Ball State’s retention of tuition and fees after it canceled in-person classes and closed campus facilities.

After the complaint was filed, however, the Indiana General Assembly enacted Public Law 166-2021, part of which was later codified as Indiana Code Chapter 34-12-5. Among the changes was Indiana Code § 34-12-5-7, known as Section 7, which bars class actions against postsecondary educational institutions for claims of breach of contract and unjust enrichment arising from COVID-19.

When Ball State filed a motion for relief based on Section 7, the Marion Superior Court ordered Mellowitz to file an amended complaint eliminating his class allegations.

Mellowitz appealed, arguing that Section 7 is a procedural statute that impermissibly conflicts with Indiana Trial Rule 23, which governs class-action procedures. As such, he argued that Section 7 is a nullity.

The Court of Appeals agreed, reversing the trial court’s decision in the interlocutory appeal of Keller J. Mellowitz, on behalf of himself and all others similarly situated v. Ball State University and Board of Trustees of Ball State University and State of Indiana, 22A-PL-337.

In its decision, the COA noted that Trial Rule 23 is a “purely procedural rule,” and that the right to bring a class action is a “purely procedural right.”

“Section 7 is a purely procedural statute, in that it does not affect a plaintiff’s existing substantive right to sue a postsecondary educational institution for breach of contract or unjust enrichment,” Judge Terry Crone wrote. “Instead of furthering judicial administrative objectives, however, it frustrates them by encouraging a multiplicity of lawsuits from similarly situated plaintiffs.”

The appellate panel further dismissed Ball State’s suggestion that mandating judicial inefficiency predominantly furthers public policy objectives by protecting Indiana’s postsecondary educational institutions “from widespread legal liability arising out of their efforts to combat and mitigate the spread of COVID-19.”

“We find this reasoning unpersuasive because, as already mentioned, Section 7 does not abrogate the existing substantive right to sue those institutions for breach of contract or unjust enrichment, so it does not reduce the institutions’ potential legal liability in the slightest,” Crone wrote.

Finally, the COA concluded that the conflict between the rule and the statute “could not be more stark”, in that Trial Rule 23 says a claimant “may” bring a class action, while Section 7 says a claimant “may not.”

“Ball State and the State attempt to harmonize the two by noting that Trial Rule 23(D)(4) allows a court to require that pleadings be amended to eliminate class allegations. But Section 7’s blanket prohibition of class actions effectively dictates that a pleading with class allegations may not be filed in the first place,” Crone wrote.

“In sum, both Trial Rule 23 and Section 7 ‘could not apply in a given situation,’” he concluded. “Accordingly, we conclude that Section 7 is a nullity, and therefore we reverse and remand for further proceedings consistent with this decision.”

The Ball State decision comes after the COA in March affirmed the denial of motions to dismiss COVID breach-of-contract lawsuits brought by students against Indiana University and Purdue University in the case of The Trustees of Indiana University v. Justin Spiegel; The Trustees of Purdue University v. Elijah Seslar, Zachary Church, Jordan Klebenow, and Luke McNally, 21A-CT-175.

There, students similarly alleged breaches of contract when their respective schools moved to online learning because of the COVID-19 pandemic.

Indiana Supreme Court justices were recently divided in declining to grant transfer to that consolidated case.•