DOE v. VIGO COUNTY, INDIANA et al

Filing 67

ORDER ON SUMMARY JUDGMENT - For the foregoing reasons, the Court finds that Plaintiff Jane Doe's claims against Defendant Vigo County, Indiana, for the actions of its former employee, Gray, fail as a matter of law. Accordingly, Vigo County 's Motion for Summary Judgment is GRANTED. Dkt. 53 . There is no just reason for delay, therefore, the Court will enter partial judgment as to claims against Defendant Vigo County, Indiana (SEE ORDER). Signed by Judge Larry J. McKinney on 9/18/2017. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JANE DOE,
Plaintiff,
vs.
VIGO COUNTY, INDIANA, and
DAVID GRAY in his individual and official
capacities,
Defendants.

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No. 2:16-cv-00124-LJM-MJD

ORDER ON SUMMARY JUDGMENT
This matter is before the Court on Defendant Vigo County, Indiana’s (“Vigo
County’s”) Motion for Summary Judgment. Dkt. 53. Vigo County moves for summary
judgment as to all claims alleged against it by Jane Doe in her Amended Complaint. Dkt.
35. Doe alleges that Vigo County is vicariously liable for the torts of its employee, David
Gray, after he assaulted and raped her while she was performing community service
under Gray’s supervision at a park in Vigo County. Vigo County claims that it cannot be
held liable because Gray’s tortious behavior falls outside the scope of his employment as
a maintenance specialist with Vigo County.

For the reasons set forth below, Vigo

County’s Motion for Summary Judgment is GRANTED.

I. BACKGROUND
A. VIGO COUNTY PARKS DEPARTMENT
The facts in this matter are not in dispute. Prior to 2009, maintenance specialists
with the Vigo County Parks Department (“Parks Department”) were supervised by a
foreman who directly reported to the Assistant Superintendent. Dkt. 57-1 at 7. Beginning
in 2010, the foremen position as a level of management was eliminated due to budgetary
concerns. Dkt. 57-1 at 8. Following the cuts, the Parks Department was reorganized to
provide a team of two maintenance specialists at each of the primary locations in Vigo
County. Dkt. 57-1 at 8.
In 2009, Kara Kish was hired as the Assistant Superintendent of the Parks
Department. Dkt. 57-1 at 6. Kish was promoted to Superintendent in 2013. Dkt. 57-2 at
5. The Parks Department hired Adam Grossman as Assistant Superintendent to oversee
maintenance specialists and report to Kish. Dkt. 57-3 at 10. Grossman stated that
maintenance specialists are “given a lot of autonomy.” Dkt. 57-3 at 9.
David Gray began working for the Parks Department on July 1, 2001. Dkt. 57-5 at
12.

He was hired as a temporary employee and subsequently received a full-time

maintenance specialist position. Dkt. 57-5 at 13; Dkt. 57-1 at 9.
In the fall of 2014, Gray worked with Mark Wiggins at Prairie Creek Park. Dkt. 576 at 8, 11. When someone would come in to do community service with the Parks
Department, Wiggins was told that Gray would supervise them. Dkt. 57-6 at 13. Wiggins
let Gray handle all community service workers. Dkt. 57-6 at 14. Gray and Wiggins worked
by themselves at the park a fair amount of time and were provided a lot of autonomy.
Dkt. 57-6 at 20; Dkt. 57-3 at 9.

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B. INCIDENT
In 2014, Doe was convicted of public intoxication in Vigo County. Dkt. 57-7 at 17.
The conviction resulted in probation and the requirement that she perform thirty or forty
hours of community service. Dkt. 57-7 at 17. Doe chose to perform her community
service at the Parks Department. Dkt. 57-7 at 18-19.
On November 3, 2014, Doe, who brought her daughter with her, went to perform
community service for the Parks Department at Prairie Creek Park. Dkt. 57-7 at 25, 2930. Fearing that she would fail to get her community service hours performed by the date
ordered by the court, Doe asked Gray if she could give him fifty dollars to sign off on the
rest of her hours. Dkt. 57-7 at 30. Gray told her, “Keep your money. Why don’t you go
get some tequila and we’ll figure something out.” Dkt. 57-7 at 31. Gray then gave her
money and told her to go to the liquor store. Dkt. 57-7 at 31. Doe purchased the tequila
and returned to the park. Dkt. 57-7 at 37. Doe gave the tequila to Gray who procured
two glasses with ice and made a drink for himself; Doe also made a drink. Dkt. 57-7 at
39-40.
After making the drinks, Gray told Doe that they were going to clear off some trails.
Dkt. 57-7 at 42. Gray, Doe, and Doe’s daughter then rode on an ATV vehicle to take
Doe’s daughter to a playground. Dkt. 57-5 at 42. Doe’s daughter was dropped off at a
playground and given a walkie-talkie so that she could communicate with Doe if
necessary. Dkt. 57-7 at 43-45.
Gray and Doe got back on the ATV and rode to the restrooms, which were
approximately four or five minutes away from the playground. Dkt. 57-7 at 45-46. Gray
told Doe that they needed to first clean the restrooms before getting to the trails. Dkt. 57-

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7 at 46. Bedding and a blanket were on the floor of the bathroom. Dkt. 57-7 at 47. After
Doe entered the restrooms, Gray locked the door behind them and began to kiss and
place his hands on Doe, who told him that she was not comfortable with the fondling. Dkt.
57-7 at 47-48. Gray then raped Doe in the bathroom. Dkt. 57-7 at 49-51. At one point
during the rape, Gray stated, “This is how we get your community service taken care of.”
Dkt. 57-7 at 50.
Shortly thereafter, Doe’s daughter used the walkie-talkie to reach Doe. Dkt. 57-7
at 52. Gray, Doe, and Doe’s daughter then cleaned trails for approximately thirty minutes
before Gray took Doe and her daughter back to Doe’s car. Dkt. 57-7 at 53-54. Doe then
took her daughter to her boyfriend’s house so that she could go to the hospital. Dkt. 577 at 57. Doe spoke with law enforcement officers about the rape at the hospital. Dkt. 577 at 57-58.
On November 6, 2014, the State of Indiana charged Gray with: (1) Rape; (2)
Criminal Confinement; and (3) Official Misconduct. Dkt. 57-10. Gray pleaded guilty to
Criminal Confinement and Official Misconduct. Dkt. 57-11.
C. OTHER GRAY INCIDENTS
As part of their investigation into the rape, law enforcement spoke with Grossman
about Gray’s employment. Dkt. 57-3 at 31; Dkt. 57-5, Ex. 6. Grossman informed the
officers that Gray had been written up for sexual harassment involving another county
employee and was also involved in an undocumented incident approximately 2 years prior
that was sexual in nature. Dkt. 57-5, Ex. 6, ¶ 12.
Specifically, in August 2014, Gray told his female co-worker, “you look good” and
“you are stacked.” Dkt. 57-7 at 23-24. Once the female co-worker told Gray that he

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crossed the line, she stated that he “immediately corrected” his behavior and nothing
more was said at that point. Dkt. 53-5 at 7-8. Gray never touched the female co-worker
and she was not aware of him saying or doing anything else that was inappropriate. Dkt.
53-5 at 5-6. Gray received a written reprimand for sexual harassment for his comments.
Dkt. 57-7 at 24; 57-3 at 27.
D. OTHER INCIDENTS WITH VIGO COUNTY EMPLOYEES
In 2007, Ray Watts, the Vigo County Recorder, inappropriately touched another
Vigo County employee on multiple occasions. Dkt. 53-14 at 2-3. Watts pleaded guilty
to Battery and was required to submit a letter of resignation from his position with Vigo
County. Dkt. 53-14 at 3.
In December of 1996, Vigo County Jail Officer Michael Soules touched and had
sexual contact with a female inmate at the Vigo County Jail. Dkt. 53-14 at 4. Soules
pleaded guilty to Official Misconduct. Dkt. 53-14 at 4.
Larry Wilson was a Parks Department maintenance specialist who worked at
Fowler Park, but serviced all three main parks as a mechanic. Dkt. Dkt. 57-12 at 13; 572 at 38.

In later July or early August of 2011, Wilson sexually assaulted a Parks

Department gatekeeper. Dkt. 57-12 at 14-17. The employee who was assaulted claimed
that similar incidents had occurred on at least four other occasions. Dkt. 57-12 at 17.
The employee informed her Parks Department supervisor about the incident, who in turn
notified Kish. Dkt. 57-12 at 24-25.
Wilson was a part of a trio of Parks Department employees that Kish believed to
be treating female staff inappropriately. Dkt. 57-1 at 36-38. Kish allowed for these three
individuals, which included Wilson, to resign in lieu of termination. Dkt. 57-1 at 37. Kish

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noted that had Wilson been terminated, she would have documented the sexual
harassment. Dkt. 57-1 at 41.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is “not []a disfavored
procedural shortcut, but rather [is] an integral part of the Federal Rules as a whole, which
are designed to secure the just, speedy, and inexpensive determination of every action.”
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). See also
United Ass’n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th
Cir. 1990). Motions for summary judgment are governed by Federal Rule of Civil
Procedure 56(a), which provides in relevant part: The court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the
opposing party may not simply rest upon the pleadings but must instead submit
evidentiary materials showing that a fact either is or cannot be genuinely disputed. Fed.
R. Civ. P. 56(c)(1). A genuine issue of material fact exists whenever “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party
bears the burden of demonstrating that such a genuine issue of material fact
exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir.1996). It is not the duty
of the Court to scour the record in search of evidence to defeat a motion for summary

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judgment; rather, the nonmoving party bears the responsibility of identifying applicable
evidence. See Bombard v. Ft. Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996).
In evaluating a motion for summary judgment, the Court should draw all
reasonable inferences from undisputed facts in favor of the nonmoving party and should
view the disputed evidence in the light most favorable to the nonmoving party. See Estate
of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir.1996). The mere existence of a factual
dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that
might affect the outcome of the suit in light of the substantive law will preclude summary
judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94
F.3d 270, 273 (7th Cir.1996). Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.1992).
If the moving party does not have the ultimate burden of proof on a claim, it is sufficient
for the moving party to direct the court to the lack of evidence as to an element of that
claim. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n. 3 (7th Cir.1994). “If the
nonmoving party fails to establish the existence of an element essential to his case, one
on which he would bear the burden of proof at trial, summary judgment must be granted
to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir.1996).
III. DISCUSSION
Doe has asserted a total of eleven counts in her Amended Complaint. Dkt. 35.
Vigo County has moved for summary judgment as to all counts.
A. SEXUAL BATTERY
Counts I and II of the Amended Complaint are for sexual battery. Dkt. 35 at 5-6.
Count III is for battery. Dkt. 35 at 6. Vigo County claims that Doe’s sexual battery claims

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should be analyzed with the battery Claim and the remainder of Doe’s tort claims. Dkt.
54 at 5. It is true that “[t]here is simply no recognized tort action in Indiana for sexual
battery ….” Oliver by Hines v. McClung, 919 F. Supp. 1206, 1219 (N.D. Ind. 1995).
However, at least one Indiana court has recognized that sexual battery may stand alone,
but only insofar as it constitutes a battery. See Pritchett v. Heil, 756 N.E.2d 561, 566 (Ind.
Ct. App. 2001). Therefore, any sexual battery is merely a repackaging of the tort of
battery, and a “person commits the civil tort of battery if ‘(a) he acts intending to cause a
harmful or offensive contact with the person of the other or third person, or an imminent
apprehension of such contact, and (b) a harmful contact with the person of the other
directly or indirectly results.’” Lessley v. City of Madison, 654 F. Supp. 2d 877, 914-15
(S.D. Ind. 2009) (quoting Singh v. Lyday, 889 N.E.2d 342, 360 (Ind. Ct. App. 2008)).
Thus, Doe’s sexual battery claims will be consolidated with her battery claim.
B. RESPONDEAT SUPERIOR
Vigo County claims that it cannot be liable for Doe’s tort claims of battery, assault,
intentional infliction of emotional distress, negligent infliction of emotional distress, and
negligence under the respondeat superior doctrine. Dkt. 54 at 5. Vigo County argues
that Gray acted outside of the scope of his employment, which precludes recovery against
an employer.
“The general rule is that vicarious liability will be imposed upon an employer under
the doctrine of respondeat superior where the employee has inflicted harm while acting
‘within the scope of employment.’” Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008)
(quoting Sword v. NKC Hospitals Inc., 714 N.E.2d 142, 148 (Ind. 1999)). “And in order
for an employee’s act to fall ‘within the scope of employment,’ the injurious act must be

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incidental to the conduct authorized or it must, to an appreciable extent, further the
employer’s business.” Id. (quoting Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450,
453 (Ind. 2000)). Although an employer is not always immune from vicarious liability for
an employee’s sexual misconduct, see Stropes ex rel. Taylor v. Heritage House Childrens
Ctr. of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989), Southport Little League v. Vaughan,
734 N.E2d 261, 270-71 (Ind. Ct. App. 2000), “Indiana courts have found whether sexual
misconduct is within the scope of one’s employment to be a genuine issue of fact only in
circumstances where the employee’s job duties involved extensive physical contact with
the alleged victim, such as undressing, bathing, measuring, or fitting.” Hansen v. Bd. of
Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 612 (7th Cir. 2008) (comparing Stropes,
547 N.E.2d at 249-50, and Vaughan, 734 N.E.2d at 271, with Barnett, 889 N.E.2d at 286,
Konkle v. Henson, 672 N.E. 2d 450, 457 (Ind. Ct. App. 1996), and Doe v. Lafayette Sch.
Corp., 846 N.E.2d 691 (Ind. Ct. App. 2006), abrogated on other grounds by State Farm
Mut. Auto. Ins. Co. v. Jakupko, 856 N.E.2d 778, 782 & n. 2 (Ind. Ct. App. 2006)).
Doe does not even attempt to distinguish the rule in Hansen.

Rather, Doe

maintains that “Gray was in the service of his employer when he criminally confined and
raped” her, which is sufficient to establish vicarious liability. Dkt. 56 at 14. Doe further
argues that Gray’s supervision over community workers within the Parks Department
provided Gray the opportunity to rape Doe because she was worried about her community
service hours. Dkt. 56 at 16. But the simple fact that Gray was acting as Doe’s supervisor
at the time of the rape is not sufficient to establish that Gray was acting within the scope
of his employment, because the “injurious act must be incidental to the conduct
authorized or it must, to an appreciable extent, further the employer’s business.” Barnett,

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889 N.E.2d at 283. Doe is unable cite to any evidence to that indicate Gray’s job duties
towards Doe extended to anything other than supervision and signing off on her hours.
In fact, the two cases cited by Doe, Stropes and Vaughan, further illustrate why
her claim must fail. The court in Stropes reversed summary judgment for a children’s
center and found that an issue of fact existed as to whether a nurse’s aide acted within
the scope of his employment when he molested a fourteen-year-old mentally disabled
patient. 547 N.E.2d at 250. The court noted that the aide’s job duties included extensive
physical contact with the patient including undressing and bathing. Id. at 249. Thus, the
nurse’s aide’s molestation of the patient could be viewed by a jury as “sufficiently
associated” with the acts authorized by his employer. Id. at 250.
In Vaughan, the court affirmed a jury verdict that imposed vicarious liability for an
equipment manager’s sexual molestation of youths participating in a summer baseball
program. 734 N.E.2d at 273. The Indiana Court of Appeals noted that the equipment
managers’ duties required him to measure and fit the children thereby mandating some
form of physical contact. Id. at 266. The court held that because some of the equipment
manager’s physical interactions were authorized, it was proper to deny summary
judgment and permit a jury to decide whether the employee’s injurious actions fell within
the scope of the employment. Id. at 269-70.
Doe’s case is similar to that of Konkle, wherein the Indiana Court of Appeals
affirmed summary judgment and refused to impose vicarious liability on a church after its
minister molested children under his care. 672 N.E.2d at 457. Although the minister was
granted access to the child because of his position and sexually molested a child on
church property on numerous occasions, id. at 453, the court found that his unauthorized

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acts were “not similar to his duties as a minster,” and that he “was not engaging in
authorized acts or serving the interests of his employer” when the molestation occurred.
Id. at 457.
Finally, in Barnett, a plaintiff sought public assistance from her local trustee’s office
and a male employee told her that she would have to assist him with some bookwork
prior to receiving assistance. 889 N.E.2d at 283. The plaintiff followed the employee to
a backroom to perform the bookwork, at which point the male employee locked the
backroom and sexually assaulted her. Id. The Indiana Supreme Court affirmed summary
judgment for the trustee employer because the employee’s sexual misconduct was wholly
unrelated to his duties as an employee. Id. at 286. “Other than perhaps a greeting
handshake, the employee was not explicitly or impliedly authorized to touch or confine
applicants for assistance. His alleged acts of confining, sexually touching and raping the
plaintiff were not an extension of authorized physical contact.” Id. The court concluded
that “[s]uch acts were not incidental to nor sufficiently associated with the deputy trustee’s
authorized duties. They did not further his employer’s business. And they were not
motivated to any extent by his employer’s interests.” Id.
Like the cases in Vaughan, Konkle, and Barnett, considering all facts in favor of
Doe, the Court must conclude that Gray’s harmful acts “were not sufficiently associated
with his employment duties so as to fall within the scope of [his] employment by the
defendant[.]” Id. Gray’s job duties did not include engaging in any physical contact with
community service workers; rather, Gray merely “took care of all the [community service]
worker’s hours [and] determined what work they would do.”

Dkt. 56 at 4.

Gray’s

confinement and sexual assault of Doe were not done in furtherance of Vigo County’s

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interest and were in no way authorized by Vigo County. Because Gray’s actions fell
outside of the scope of his employment, Vigo County cannot be held vicariously liable
under the doctrine of respondeat superior. Thus, the claims against Vigo County for
sexual battery (Counts I and II), battery (Count III), assault (Count IV), constitutional
deprivations under 42 U.S.C. § 1983, (Count V), intentional infliction of emotional distress
(Count IX), negligent infliction of emotional distress (Count X), and negligence (count XI),
are hereby DISMISSED.
C. CRIMINAL CONFINEMENT
Doe also seeks to recover under Indiana Code Section 34-24-3-1, “which allows
monetary recovery for the crime of criminal confinement.” Fioretti v. Aztar Ind. Gaming
Co., LLC, 790 N.E.2d 587, 588 (Ind. Ct. App. 2003). A plaintiff may recover for criminal
confinement if she has suffered a pecuniary loss as a result of the violation of that statute.
See Ind. Code § 34-24-3-1.
Vigo County argues that the Indiana legislature has not explicitly stated that a
municipality can be liable for an employee’s or agent’s criminal confinement and therefore
Doe is without a remedy against it as a matter of law. Dkt. 54 at 9-10. Moreover, Vigo
County claims that Doe must establish that she suffered a pecuniary loss to recover under
under Indiana Code § 34-24-3-1. Dkt. 54 at 9-10.
“[N]either the State nor any other governmental entity is subject to criminal
provisions of Indiana statutes without the legislation making that result absolutely clear.”
Brownsburg Cmty. Sch. Corp. v. Natare Corp., 824 N.E.2d 336, 341 (Ind. 2005). Doe
claims that the Indiana Tort Claims Act (“ITCA”) specifically states that a governmental
entity or its employee may be liable for false arrest or false imprisonment. Dkt. 56 at 17.

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Indeed, “ITCA provides that neither a governmental entity nor a government employee
acting within the scope of his employment is liable if a loss results from the adoption and
enforcement of a law, ‘unless the act of enforcement constitutes false arrest or false
imprisonment.’” McConnell v. McKillip, 573 F. Supp. 2d 1090, 1103 (S.D. Ind. 2008)
(citing Ind. Code § 34-13-3-3(8)). Doe claims that this exception renders her criminal
confinement claim viable, because it bears similar elements to a false imprisonment
claim. Dkt. 56 at 17-18. But Doe does not allege that Gray’s actions were undertaken
while enforcing a law. See Ind. Code § 34-13-3-3. More importantly, ITCA makes clear
that, in order for liability to attach, an employee must be “acting within the scope of the
employee’s employment.” Ind. Code § 34-13-3-3. See also McConnell, 573 F. Supp. 2d
at 1103-04 (“Indiana Courts have made clear that the ITCA goes so far as to protect
officers from liability for both tortious and even criminal acts where the purpose of the
employee’s conduct was to further the employer’s business.” (citing Indiana cases)).
Having already found that Gray was not acting within the scope of his employment, infra
pt. III, B, the false imprisonment exception found in ITCA is not applicable to his actions
and Doe’s criminal confinement claim (Count VI) must fail as a matter of law.

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D. MONELL CLAIM
Doe has also asserted a Monell claim, which subjects a local governing body to
monetary damages under 42 U.S.C. § 1983 “if the unconstitutional act complained of is
caused by (1) an official policy adopted and promulgated by its officers; (2) a
governmental practice or custom that, although not officially authorized, is widespread
and well settled; or (3) an official with final policy-making authority.” Thomas v. Cook Cty.
Sheriff’s Dep’t., 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell v. N.Y. City Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978)). A plaintiff must demonstrate that the governmental
entity was “deliberately indifferent as to [the] known or obvious consequences.” Gable v.
City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002). “The central question is always
whether an official policy, however expressed…, caused the constitutional deprivation.”
Glisson v. Ind. Dep’t of Corrs., 849 F.3d 372, 379 (7th Cir. 2017).
Doe claims that Vigo County has long maintained a custom of indifference and
tolerance of sexual harassment, which resulted in Doe’s injury. Dkt. 56 at 20. In support,
Gray cites four separate incidents of sexual assault by male Vigo County employees,
dating back to December 1996. Dkt. 56 at 20-23. Doe claims that “[o]ver the course of
twenty years, Vigo County employees have sexually victimized multiple victims while
those men were working as Vigo County employees. Vigo County repeatedly overlooked
sexual harassment and/or assault perpetrated by male employees.” Dkt. 56 at 24-25.
The evidence, however, suggests otherwise. All of the employees who engaged
in these inappropriate actions, which includes Gray, a maintenance specialist, a jail
officer, and a county recorder, were terminated, reprimanded, or forced to resign. See
infra, pt. I, C & D. Doe must set forth “evidence that there is a true municipal policy at

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issue, not a random event.” Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005).
Citing only four separate incidents in a period of over twenty years is not evidence of a
“widespread custom or practice” of overlooking sexual assaults by Vigo County,
particularly in light of the fact that each incident was addressed by Vigo County or the
criminal justice system. Thomas, 604 F.3d at 303. Accordingly, Doe’s Monell claim
(Count VII) fails as a matter of law.
E. NEGLIGENTION RETENTION
Indiana recognizes a claim against employers for the negligent hiring, supervision,
or retention of an employee. See Hanson, 551 F.3d at 609 (citing Levinson v. Citizens
Nat’l Bank of Evansville, 644 N.E.2d 1264, 1269 (Ind. Ct. App. 1994)). “Indiana has
adopted the Restatement (Second) of Torts § 317 as the standard with regard to this tort,
under which a court must determine if the employer exercised reasonable care in hiring,
supervising, or retaining an employee.”

Id. (citing Konkle, 672 N.E.2d at 454-55).

Moreover, “[t]here are general rules and concepts surrounding the imposition of a duty of
care that must also be satisfied.” Clark v. Aris, Inc., 890 N.E.2d 760, 763 (Ind. Ct. App.
2008), trans. denied. The Court must determine whether to impose a duty of care and
consider the following factors: “(1) the relationship between the parties, (2) the reasonable
foreseeability of harm to the person injured, and (3) public policy concerns.” Sandage v.
Bd. of Comm’rs of Vanderburgh Cty., 897 N.E.2d 507, 512 (Ind. Ct. App. 2008) (citing
Clark, 890 N.E.2d at 763). The imposition of this duty is “limited to those instances where
a reasonably foreseeable victim is injured by a reasonably foreseeable harm” and
whether “the challenged conduct should have been foreseen by the actor who engaged

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in it.” Clark, 890 N.E.2d at 764 (emphasis in original) (quoting Webb v. Jarvis, 575 N.E.2d
992, 995 (Ind. 1991)).
Doe claims that Vigo County knew that Gray “had repeatedly sexually harassed at
least one co-worker and was aware of one other undocumented incident of a sexual
nature.” 1 Dkt. 56 at 26-27. But neither of these incidents would make it “reasonably
foreseeable” that Gray would rape Doe. The first incident involved no physical contact
and was a verbal assault on a co-worker that was immediately remedied by Gray following
a written reprimand. Dkt. 53-5 at 10-11. The other incident cited by Doe was not
documented and it is unclear as to what exactly occurred aside from it being “sexual in
nature.” 2 Dkt. 57-3 at 33-34. Neither of these incidents would make it reasonably
foreseeable that Gray would confine and rape Doe. And because it was not reasonably
foreseeable that Doe would suffer a foreseeable injury, her claim for negligent retention
of Gray (Count VIII) must fail.

1

Doe also claims that the other maintenance specialist’s “habit of sexually assaulting and
sexually harassing women” should also be considered for Gray’s actions, but fails to
provide any legal support for this proposition. Dkt. 56 at 26.
2 Doe’s attorney questioned Grossman about the other “incident,” dkt. 57-5, Ex. 6, ¶ 12,
but did not question him as to the specifics of the incident. See dkt. 57-3 at 33-34.
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IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff Jane Doe’s claims against
Defendant Vigo County, Indiana, for the actions of its former employee, Gray, fail as a
matter of law. Accordingly, Vigo County’s Motion for Summary Judgment is GRANTED.
Dkt. 53. There is no just reason for delay, therefore, the Court will enter partial judgment
as to claims against Defendant Vigo County, Indiana.
SO ORDERED this 18th day of September, 2017.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Scott Leroy Barnhart
ATTORNEY AT LAW
[e-mail]
Brooke Smith
KEFFER BARNHART LLP
[e-mail]
Caren L. Pollack
POLLACK LAW FIRM, P.C.
[e-mail]
David P. Friedrich
WILKINSON GOELLER MODESITT WILKINSON AND DRUMMY
[e-mail]

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