Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Once again returning to the Indiana appellate courts, a mother whose daughter with severe disabilities was sexually molested at her school secured a partial victory and partial loss at the Court of Appeals of Indiana, where this time summary judgment rulings were at issue.
The child, K.G., was born in 2004 with cerebral palsy, microcephaly, congenital quadriplegia, optic nerve hypoplasia and epilepsy. K.G. is nonverbal and has limited communication, vision, movement and comprehension.
Between October 2015 and January 2016, K.G. was a student at New Augusta Public Academy, part of the Metropolitan School District of Pike Township in Indianapolis. During that time, an instructional assistant, Morgan Smith, sexually abused K.G. while changing her diaper.
Around the same time, K.G. began suffering from sleeplessness and night terrors and became combative with her caregivers. Her mother, Melody Ruch, ultimately had to place her in a chronic care facility.
Smith confessed in February 2018 and pleaded guilty to Level 3 felony child molesting in April 2019.
The following month, Ruch, on K.G.’s behalf, sent a tort claim notice to the academy and the school district, followed by a lawsuit that August. Notably, in its answer, the plaintiffs admitted to an allegation that the May 14, 2019, tort claim notice was timely.
In June 2020, the school filed a motion for partial summary judgment on Ruch’s individual claim of negligent infliction of emotional distress. She had also raised a claim for economic damages.
The school argued that because Ruch was not physically present for the abuse nor physically impacted, her emotional distress claim could not survive.
The Marion Superior Court granted the motion for partial summary judgment as to both emotional distress and economic damages. On appeal, the Court of Appeals affirmed as to the emotional distress claim but reversed as to economic damages because the school did not seek summary judgment on that claim.
The case then went to the Indiana Supreme Court, which ruled that summary judgment was inappropriate on both claims.
On remand, Ruch moved for partial summary judgment on a respondeat superior claim against the school and on her individual claim for emotional distress.
Meanwhile, the school moved for leave to amend its answer, arguing the tort claim notice had actually been untimely. That motion was granted.
Also, the school filed a cross-motion for summary judgment arguing that Smith’s guilty plea did not bind it and that the respondeat superior claims were for the jury to decide. Additionally, the school again argued that the notice of tort claim was untimely.
The trial court ultimately granted Ruch’s motion for partial summary judgment and denied the school’s motion, then set a pretrial conference to schedule a trial on the issue of damages.
The school appealed, and addressing the case for the second time, the Court of Appeals affirmed and reversed in part Wednesday in New Augusta North Public Academy and Metropolitan School District of Pike Township v. K.G., a Minor, by her Parent and Next Friend Melody Ruch, Individually, 23A-CT-871.
Turning first to the respondeat superior claim, the COA determined the grant of Ruch’s motion for summary judgment on that issue was improper, citing Cox v. Evansville Police Dep’t, 107 N.E.3d 453 (Ind. 2018), and Stropes ex rel. Taylor v. Heritage House Childrens Center of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989).
“As in Stropes, it is ‘beyond question,’ that the sexual abuse was unauthorized and committed for Smith’s own gratification,” Judge Elizabeth Tavitas wrote. “The fact that the sexual assault was unauthorized is, however, ‘not per se determinative of the scope of employment question.’
“Rather, genuine issues of material fact exist, and is in Cox and Stropes, whether Smith was acting within the scope of her employment is a fact sensitive matter for the jury to decide,” Tavitas continued. “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.”
But the COA also concluded that the trial court properly denied the school’s motion for partial summary judgment on Ruch’s individual claims, determining that the issue of the timeliness of the tort claim notice had been waived. The appellate court distinguished the instant case from Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013).
“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 (Indiana Tort Claims Act) because the School thought it would ‘prevail on the merits’ of Mother’s individual claim,” Tavitas wrote. “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 ITCA defense by failing to present it in a timely manner,” Tavitas concluded. “Accordingly, the trial court properly denied the School’s motion for partial summary judgment regarding Mother’s individual claims.”
Please enable JavaScript to view this content.