Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: JAMES S. STEPHENSON G. JAYSON MARKSBERRY Stephenson Morow & Semler Indianapolis, Indiana

ATTORNEY FOR APPELLEE: ROBERT E. SHIVE Bator Redman Bruner Shive & Ludwig, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANNE ELIZABETH KEENEY, Appellant-Defendant, vs. ROBERT O. CARUTHERS, JR., Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 10A05-0512-CV-699

APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Daniel Donahue, Judge Cause No. 10C01-0408-CT-516

January 31, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Anne Elizabeth Keeney appeals the denial of her motion for summary judgment against Robert Caruthers, Jr. She argues the suit against her as a probation officer should be dismissed because Caruthers failed to comply with the notice provisions of the Indiana Tort Claims Act, and the suit against her as an individual should be dismissed because she was acting within the scope of her employment. Keeney's communications with Kentucky probation officers were within the scope of her employment, barring a suit against her in her individual capacity. Caruthers' failure to provide notice to Keeney's employer bars the claim against Keeney in her official capacity. We reverse and remand. FACTS AND PROCEDURAL HISTORY Keeney is a probation officer in Clark County, Indiana. Caruthers was a

probationer under Keeney's supervision in August and September of 2003. In September 2003, Caruthers requested his probation be transferred to the Louisville, Kentucky, department of probation and parole. The transfer of probation was complete on

November 18, 2003. That same day, Keeney called Sabrina Farris, Caruthers' new probation officer, and told Farris that "she had gotten through a good resource that he was still dealing in controlled substances across the State line." (App. at 61.) 1 Based on this information, Kentucky probation and police officers searched Caruthers' residence and found a loaded .22-caliber pistol. Caruthers was charged under Kentucky law with

1

The source was another of Keeney's probationers.

2

possession of a handgun by a convicted felon. His Indiana probation was revoked and, on May 6, 2004, he was ordered to serve his previously suspended sentence. On August 10, 2004, Caruthers, pro se, filed a verified complaint against Keeney "individually and in her official capacity." (Id. at 5.) He alleged Keeney's statement to Farris was defamatory and requested damages. Keeney filed a motion for summary judgment in October 2004, which motion was denied in a minute entry on June 20, 2005. We granted Keeney's motion to accept her interlocutory appeal. DISCUSSION AND DECISION When reviewing a grant or denial of summary judgment, we apply the same standard as does the trial court. Rogier v. Am. Testing & Eng'g Corp., 734 N.E.2d 606, 613 (Ind. Ct. App. 2000), trans. denied 753 N.E.2d 8 (Ind. 2001). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). If the movant designates evidence to support a prima facie showing that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law, the "adverse party may not rest upon the mere allegations or denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." T.R. 56(E). We do not weigh the evidence; rather, we consider the facts in the light most favorable to the nonmovant. Rogier, 734 N.E.2d at 613. 1. Official Capacity

Caruthers sued Keeney "individually and in her official capacity" as a probation officer. (App. at 5.) The Indiana Tort Claims Act provides that a "governmental entity 3

or an employee acting within the scope of the employee's employment is not liable" for losses occurring in certain circumstances. Ind. Code

Download Anne Elizabeth Keeney v. Robert O. Caruthers, Jr..pdf

Indiana Law