BECKER v. CITY OF EVANSVILLE et al

Filing 206

ORDER ON 198 DEFENDANTS' OBJECTION TO COURT'S PRELIMINARY INSTRUCTION NO. 3 - For the reasons explained in the Entry on Defendants' Motion for Summary Judgment 105 , the Court overrules Defendants' Objection to the Court's Preliminary Instruction No. 3 198 . SEE ORDER. Signed by Judge Tanya Walton Pratt on 11/23/2016.(JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
JAMIE BECKER,
Plaintiff,
v.
CITY OF EVANSVILLE, and
ZACHARY ELFREICH,
Defendants.

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Case No. 3:12-cv-00182-TWP-MPB

ORDER ON DEFENDANTS’ OBJECTION TO COURT’S
PRELIMINARY INSTRUCTION NO. 3
This matter is before the Court on Defendants the City of Evansville’s and Zachary
Elfreich’s (collectively “Defendants”) Objection to Court’s Preliminary Instruction No. 3 (Filing
No. 198). Preliminary Instruction No. 3 is the parties’ joint issue instruction, which states in part,
“Mr. Becker claims that Officer Elfreich was negligent, that he committed a battery while arresting
him, and that Officer Elfreich used excessive force in violation of his constitutional rights.”
Defendants object to this language in the issue instruction, asserting that this is an incorrect
statement of law. Defendants propose that the sentence be amended to read, “Mr. Becker claims
that Officer Elfreich used excessive force in violation of his state law and constitutional rights.”
They argue that:
There is no claim recognized under Indiana law for negligence in the use of
force by a police officer. The Supreme Court in Wilson v. Isaacs, 929 N.E.2d 200
(Ind. 2010) held, “if an officer uses an unreasonable or excessive force, the officer
may commit the tort of assault and battery.” Plaintiff has asserted a battery claim
against the Defendants. Any claim for negligence against either Defendant is
foreclosed based on the statutory immunity under I.C. 34-13-3-3(8) and Wilson.
State law claims for negligence and battery are also foreclosed against
Officer Elfreich because the Supreme Court in Wilson affirmed summary judgment

on the state law claims in favor of the officer based on I.C. 34-13-3-5(b) which
states “[a] lawsuit alleging that an employee acted within the scope of the
employee’s employment bars an action by the claimant against the employee
personally.” . . . Plaintiff concedes that Officer Elfreich was acting within the scope
of his employment with the City. . . . Thus, no state law battery or negligence claim
can stand against Officer Elfreich.
(Filing No. 198 at 1–2).
In response, Plaintiff asserts that Preliminary Instruction No. 3, the Issue Instruction, is a
preliminary instruction informing the jury of the parties’ contentions in general, and correctly sets
forth Plaintiff’s claims in Counts I, II, and III of the Amended Complaint, as it is renumbered for
trial. Plaintiff further asserts that the issue of whether the state law claims of Count I (Battery) and
Count II (Negligence) were committed is one that the jury must determine. Plaintiff also explains
that this issue could have been raised in a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) and can still be raised at the conclusion of the evidence and addressed in the final jury
instructions.
The language in the Court’s proposed Preliminary Instruction No. 3 is taken directly from
the parties’ Joint Issue Instruction (see Filing No. 183-1 at 1). The Court notes that Defendants
did not previously object to the inclusion of the language “Mr. Becker claims that Officer Elfreich
was negligent, that he committed a battery while arresting him, and that Officer Elfreich used
excessive force in violation of his constitutional rights.”
The Court further notes that although Defendants did not raise an objection to these issues
in a motion to dismiss, Defendants previously raised these same arguments during the summary
judgment proceedings. After reviewing the summary judgment filings, the summary judgment
Order, the decision in Wilson v. Isaacs, and the cited statutory provisions, the Court continues to
hold to the summary judgment ruling regarding Plaintiff Jamie Becker’s claims for negligence,
battery, and excessive force. The procedural posture with which this matter goes to trial includes
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Plaintiff’s claims for negligence and battery and those claims are properly set forth in the parties’
Joint Issue Instruction. For the reasons explained in the Entry on Defendants’ Motion for Summary
Judgment (Filing No. 105 at 73–77), the Court overrules Defendants’ Objection to the Court’s
Preliminary Instruction No. 3 (Filing No. 198).
SO ORDERED.
Date: 11/23/2016
DISTRIBUTION:
Steven L. Whitehead
[e-mail]
Michael C. Keating
KEATING & LAPLANTE
[e-mail]
Jason Michael Spindler
SPINDLER LAW
[e-mail]
Keith W. Vonderahe
ZIEMER STAYMAN WEITZEL & SHOULDERS
[e-mail]
Robert L. Burkart
ZIEMER STAYMAN WEITZEL & SHOULDERS
[e-mail]
Jean Marie Blanton
ZIEMER STAYMAN WEITZEL & SHOULDERS
[e-mail]

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