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A federal judge has denied Butler University’s motion to dismiss a lawsuit filed by four student-athletes who allege that a former athletic trainer sexually abused them and that the university’s athletic director failed to protect them.
United States District Court of the Southern District of Indiana Judge James Sweeney issued the order Monday in Jane Does 1-4 v. Butler University, Michael Howell, Ralph Reiff, 1:23-cv-01302.
The case involves four Butler University student-athletes — whose separate actions were consolidated — who allege that former Butler athletic trainer Michael Howell abused them and that the university and its director of athletics, Ralph Reiff, failed to protect them from Howell’s abuse.
Complaints in the case were initially filed in July.
Those complaints allege sexual assault by Howell, an athletic trainer for the university from 2012 until his termination in 2022, and negligence by Reiff, Butler’s senior associate athletic director and Howell’s supervisor.
The university retained independent legal counsel to investigate the allegations under the Title IX statute.
Sweeney, in his order, first addressed Butler’s argument that the plaintiffs’ claims are within the scope of Indiana’s Medical Malpractice Act, which requires claims to pass an administrative medical review panel before coming to court.
The judge noted the university’s argument that because the plaintiffs have not first submitted their claims to that panel, the district court lacked subject matter jurisdiction.
But Sweeney — citing Fairbanks Hosp. v. Harrold, 895 N.E.2d 732 (Ind. Ct. App. 2008) — wrote that this is not a medical malpractice case, stressing that “because sexual abuse is not medical care, the derivative claim ‘the health care provider failed to stop it’ has nothing to do with whether the provider gave adequate care.”
Further, Sweeney noted that a case on exactly this pattern — following Fairbanks to conclude that a claim for negligent supervision of a sexual abuser does not sound in malpractice — was just weeks ago transferred to the Indiana Supreme Court, Indiana Dep’t of Ins. v. Doe, 211 N.E.3d 1014 (Ind. Ct. App. 2023).
“This Court follows the clear line of Indiana Court of Appeals cases — which, incidentally, seem correct in principle — unless and until the State Supreme Court rules otherwise,” he wrote.
Sweeney next turned to Butler’s contention that Indiana law only allows negligent supervision claims against employers, not employees.
If that is true, then Reiff, Howell’s supervisor and himself a Butler employee, cannot be held liable for negligent supervision of Howell, Sweeney wrote.
“That seems, on its face, an odd result: why wouldn’t a supervisor potentially be liable for negligent supervision? Surely a supervisor can supervise negligently,” the judge said.
Butler cited Branscomb v. Wal-Mart Stores E., L.P., 165 N.E.3d 982 (Ind. 2021), in its argument.
In Branscomb, the defendant employer removed a store trip-and-fall case to federal court, arguing that the plaintiff had fraudulently joined the store manager, who was not at the store when the fall happened, to defeat diversity jurisdiction.
Sweeney said he did not read Branscomb to have established any rule of general applicability.
“The Court there was ‘[l]ooking at the specific facts in this particular case, and noting the paucity of the record,’ to give a narrow response to a certified question,” he wrote.
The judge added that the Branscomb court relied on “the record” and the “allegation[s]” to make a ruling about a single manager in a single fact pattern — it did not announce a general rule against negligent supervision by employees.
“With Branscomb properly understood, the common-sense conclusion holds: no Indiana law bars negligent supervision claims against supervisors; under otherwise appropriate circumstances, a supervisory employee may be liable for negligent supervision. Ultimately, ‘negligent supervision’ is just negligence — there are no special elements just because the claim, as a convenient shorthand, specifies the allegedly negligent action in its title,” Sweeney wrote, citing Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368 (Ind. 2022).
“… The Court’s jurisdiction is not affected by the provisions of Indiana’s Medical Malpractice Act; this case does not fall within the bounds of that Act; and no rule bars the Does’ negligent supervision claims against both Reiff and the University,” the judge concluded. “Butler’s motion to dismiss is denied.”
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