7th CircuitCourt of Appeals
Civil Plenary — Title IX Sexual Harassment/Deliberate Indifference
Sarah Johnson v. Northeast School Corporation
A woman who argued that her western Indiana high school inadequately responded to her alleged sexual harassment while she was a student there did not sway the 7th Circuit Court of Appeals to reverse a federal judge’s grant of summary judgment to the school on her claims.
As a student attending North Central High School in Farmersburg, Sarah Johnson in 2015 reported to the school principal that two classmates at an off-campus apartment had raped her. One of the those students had a similar allegation made against him a few months before by one of Johnson’s friends, Harley Gilliam.
Although North Central’s principal responded to Gilliam’s allegation by issuing a no–contact order between Gilliam and the alleged abuser, Garrett Froschauer, Gilliam ultimately withdrew from North Central a month later without report that she had been bullied or harassed by Froschauer.
Johnson eventually withdrew from North Central as well, and filed a complaint with the United States Department of Education Office for Civil Rights. She sued Northeast School Corporation and North Central, alleging they subjected her to discrimination on the basis of sex in violation of Title IX, 20 U.S.C. § 1681(a). She also claimed they violated state law by failing to have an anti-bullying policy
Johnson cited a declaration from the executive director of nonprofit Stop Sexual Assault in Schools, Dr. Esther Warkov, who stated that she had knowledge of North Central’s failure to enforce Title IX in the case. She additionally cited the OCR’s report detailing the findings of its Title IX investigation.
The school moved for summary judgment and the U.S. District Court for the Southern District of Indiana, Terre Haute Division, granted the motion on all claims. It additionally excluded the declaration and report.
Appealing to the 7th Circuit, Johnson argued against the district court’s decision to exclude Dr. Warkov’s declaration and the OCR report. She further argued that NESC was not entitled to summary judgment on her Title IX claim.
The 7th Circuit affirmed in Sarah Johnson v. Northeast School Corporation, 19-2870, finding any arguments that Johnson attempted to make about Dr. Warkov’s declaration and the OCR report to be undeveloped and unsupported. It therefore found her arguments waived on those issues. As to the Title XI claim, the 7th Circuit agreed with Johnson’s assertion that NESC had knowledge of her alleged harassment.
“We are skeptical, however, that the conduct Johnson describes occurring at North Central rises to the level of severe, pervasive, and objectively offensive sexual harassment. But we need not resolve these issues because, assuming the entire course of conduct in this case amounts to severe sexual harassment, NESC was not deliberately indifferent to this harassment,” Chief Judge Diane Sykes wrote for the 7th Circuit panel in an opinion issued Aug. 26 and posted to IL Aug. 27.
First, it concluded that NESC’s response to Gilliam’s allegation was not clearly unreasonable. Rather, the 7th Circuit wrote, “it was reasonable for Principal (Monty) Kirk to defer to law enforcement and DCS where the sexual assault occurred off campus and criminal charges were a possibility.”
“It’s true that Principal Kirk could have done more to investigate Gilliam’s specific claims. As Johnson suggests, he could have reached out to DCS employees to get a copy of the report and confirm the results of the investigation. But blaming NESC for failing to take the specific actions that Johnson would have preferred it to take ‘sounds in negligence, not deliberate misconduct,’” the 7th Circuit wrote.
Additionally, it concluded that Johnson cannot now claim that NESC conducted “a lackluster investigation that amounts to deliberate indifference when it was others who stifled its attempt to conduct one.”
“In sum, NESC responded to Johnson’s claims of harassment immediately after (her grandmother Leslie) Hawker informed Principal Kirk that Johnson had been raped off‐campus. Its overall response included complying with and attempting to get information from a police investigation, attempting to conduct its own Title IX investigation, issuing a no‐contact order, and responding to individual claims of harassment each time Johnson or Hawker reported them to Principal Kirk. This response is not clearly unreasonable, and therefore NESC was not deliberately indifferent to Johnson’s alleged sexual harassment,” the 7th Circuit concluded.
Indiana Supreme Court
Juvenile — Jurisdiction/Age for Waiver to Adult Court
D.P. v. State of Indiana; State of Indiana v. N.B.
Juvenile courts’ jurisdiction to waive minors to adult court ends when the juvenile reaches the age of 18 or 21, depending on the nature of the case, the Indiana Supreme Court ruled, reinforcing bright-line statutory jurisdiction in dismissing a pair of cases alleging child molestation.
The ruling in the consolidated cases of D.P. v. State of Indiana and State of Indiana v. N.B., 20S-JV-443, related to two cases where the state asked juvenile courts to waive minors to adult court where delinquency petitions had been filed but the alleged delinquents had turned 21.
“Decades ago, this Court declared, ‘The age of the offender is determinative of subject matter jurisdiction in the juvenile court …,’” Chief Justice Loretta Rush wrote, citing Twyman v. State, 459 N.E.2d 705, 708 (Ind. 1984). “That simple jurisdictional principle holds true today.
“… Under the plain language of the relevant statutes, a juvenile court does not have subject matter jurisdiction to waive an alleged delinquent offender into adult criminal court if the individual is no longer a ‘child,’” Rush wrote. Depending on the relevant situations and statutes, that age is either 18 or 21.
The justices’ ruling applied to a Putnam County case, D.P. v. State of Indiana, and a Madison County case, State of Indiana v. N.B. In D.P., the Indiana Court of Appeals in November affirmed the denial of a motion to dismiss a delinquency petition against a 23-year-old. Likewise, in N.B., the appellate panel reversed dismissal of a molest case on the basis that it lacked subject matter jurisdiction.
The COA panel in N.B. held that the juvenile court had jurisdiction to “entertain” delinquency petitions for those over 21 for the purpose of waiving people to adult court, but not to enter a disposition.
But Rush cited statutes she said were unambiguous regarding juvenile court jurisdiction. “(A) prerequisite to waiver is that an alleged offender is a ‘child,’ which neither D.P. nor N.B. is. In other words, not only is the language of the waiver statutes clear, those statutes also are in harmony with the jurisdictional provision regarding delinquency proceedings — making judicial statutory construction inappropriate.
“The State does not point to — nor do we find — any other statute that would confer upon the juvenile court limited subject matter jurisdiction to waive an individual who is twenty-one or older into adult criminal court. The State argues, though, that finding no subject matter jurisdiction in these cases would run afoul of legislative intent by effectively shortening the child-molesting statute of limitations for D.P., N.B., and those similarly situated.”
The unanimous court found it true that had D.P. committed the alleged offense on his 18th birthday, he could have been charged in adult court. But it likewise found that in these cases, the state could have filed charges directly in adult court, because the statute of limitations for molestation has not expired.
“What’s more, the State fails to acknowledge a competing policy argument: accepting the State’s position would lead to adults being punished many years after their youthful offenses, without any opportunity for juvenile rehabilitation,” Rush wrote. “By way of example, N.B.’s alleged victim does not turn thirty-one until either 2035 or 2036. This means that, if the juvenile court has jurisdiction over N.B. for waiver purposes, the State could file a delinquency petition against him in his late thirties for acts that allegedly occurred when he was between twelve and fifteen years old. D.P. and N.B. maintain that the legislature likely recognized this potential injustice and thus ‘closed the opportunity for juvenile proceedings when the offender turns 21-years old.’”
Civil Tort — Damages/Failure to Mitigate Jury Instruction
Patrick Humphrey v. Brian Tuck, US Xpress, Inc.
A man awarded $40,000 after a crash involving an 18-wheeler will not get a second damages trial after the Indiana Supreme Court rejected his challenge to a damages-mitigation jury instruction.
The high court granted transfer and affirmed the trial court’s ruling in Patrick Humphrey v. Brian Tuck, US Xpress, Inc., 20S-CT-548.
Plaintiff Patrick Humphrey sued U.S. Xpress Inc. and its employee, Brian Tuck, after Tuck’s tractor-trailer sideswiped Humphrey’s rental car. Humphrey later discovered a sliver of glass in his eye, and a subsequent MRI revealed a tumor that a doctor warned could cause blindness.
Humphrey continued to experience symptoms, including a hormonal imbalance. However, he waited more than a year to begin injections that improved his condition.
When Humphrey filed suit, he alleged the accident with Tuck caused a pre-existing tumor to swell. He raised claims of negligence, negligence per se and respondeat superior, while Tuck and US Xpress admitted fault.
That left the question of damages, which the defendants claimed Humphrey failed to mitigate. Over Humphrey’s objection, the Jackson Superior Court gave a jury instruction proffered by the defendants: “A plaintiff must use reasonable care to minimize his damages after he is injured. The Plaintiff may not recover for any item of damage that he could have avoided through the use of reasonable care. The Defendant has the burden of proving by the greater weight of evidence that the plaintiff failed to sue reasonable care to minimize his damages. Do not consider failure to minimize damages as fault. Rather you may consider failure to minimize damages to reduce the amount of damages that the plaintiff claims.”
The jury ultimately awarded Humphrey $40,000 in damages, and the trial court denied his subsequent motion to correct error. The Indiana Court of Appeals, however, previously reversed and remanded for a new damages trial, agreeing with Humphrey than the mitigation instruction was not supported by evidence.
But in reinstating the trial court’s entry of judgment on the $40,000 verdict, the Supreme Court noted that “the party seeking an instruction need only produce some evidence – a ‘scintilla’ – of each element of the underlying claim or defense.”
“We agree with Tuck and U.S. Xpress that there was sufficient evidence to support instructing the jury on their defense of failure to mitigate damages,” Justice Geoffrey Slaughter wrote for the court. “As to Humphrey’s vision, he testified that he had no vision problems before the accident. Since the accident, he complains of vision problems that, he says, limit his ability to drive a vehicle; make it harder for him to see at night, especially if it is raining; and affect his ability to read signs and see peripherally.
“Yet even with these vision issues, Humphrey has not worn corrective eyeglasses or contacts – despite having a prescription for glasses that he never filled,” Slaughter continued. “For the past year, he did not return to the optometrist to get a new prescription, despite acknowledging that new glasses ‘may’ help his vision. … Under our minimal standard for instructing the jury, this is enough evidence to allow a lay jury to consider whether Humphrey’s vision would have improved had he either filled an existing prescription for eyeglasses or obtained a new prescription.”
The justices found a similar failure to mitigate Humphrey’s complaint of a hormonal imbalance, including his delay in beginning treatment.
Relying on Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006), the justices thus held that “it was up to the jury to determine whether, and to what extent, Humphrey was injured due to the defendants’ negligence and, likewise, whether, and to what extent, Humphrey failed to mitigate his own damages.”
“For these reasons, the trial court did not abuse its discretion in giving the failure-to-mitigate instruction,” Slaughter concluded. “Thus, we affirm its judgment, including its denial of Humphrey’s motion to correct error.”
IndianaCourt of Appeals
Miscellaneous — Medical Malpractice/Motion to Compel Arbitration
The Estate of Sandra King by Special Administrator Marie Briggs v. Aperion Care d/b/a Aperion Care Tolleston Park and Steve Robertson, Insurance Commissioner for the Indiana Department of Insurance
The Indiana Court of Appeals has reversed the denial of an estate’s motion to compel arbitration against a nursing facility after concluding that the Indiana Medical Malpractice Act does not apply in the case.
At the end of her life, Sandra King was a resident at nursing facility Aperion Care Tolleston Park in Gary. As part of the admission process, King signed an arbitration agreement with Aperion stating that all claims against the facility were to be resolved exclusively by arbitration.
Before her death, King developed numerous ailments while living at Aperion, which prompted her estate to file a proposed complaint with the Indiana Department of Insurance alleging medical malpractice. It specifically cited the nursing care that King received while she was a resident at Aperion.
The estate subsequently filed a motion to compel arbitration after learning of the signed arbitration agreement, but the trial court denied the motion on grounds that it was “not yet ripe for arbitration.” It denied the motion because the estate’s claims “must first proceed through the review process set forth in the Indiana Medical Malpractice Act.”
In agreeing with the estate that the trial court’s decision was wrong, the Indiana Court of Appeals reversed that decision in The Estate of Sandra King by Special Adminstrator Marie Briggs v. Aperion Care d/b/a Aperion Care Tolleston Park and Steve Robertson, Insurance Commissioner for the Indiana Department of Insurance, 19A-MI-3037.
“The Estate claims that the trial court erred in determining that the matter was not ripe for arbitration because the parties had yet to complete the review panel process required by the Act. In making this argument, the Estate claims that the Act does not apply in this case because the Arbitration Agreement provided the exclusive avenue for resolution of its claims. We agree,” Chief Judge Cale Bradford wrote for the appellate court.
“Given that the parties agreed that the exclusive means for resolving any claims was arbitration and our precedent stating that when construing arbitration agreements, ‘every doubt is to be resolved in favor of arbitration,’ we conclude that the Facility relinquished its right to avail itself of the Act,” the appellate court wrote.
It additionally noted that the parties could have agreed as a condition precedent to arbitration that the arbitration of any issue falling under the Act must be presented to a review panel prior to being submitted to arbitration. However, the appellate court observed that no such condition precedent is contained in the arbitration agreement.
It therefore reversed and remanded the matter to the Lake Superior Court with the instruction to enter an order granting the estate’s motion to compel.
Civil Plenary — Personal Injury from Ram/Jury Instructions
Darlene Perkins v. Kathy Fillio
A woman injured after being head-butted by a ram could not convince the Indiana Court of Appeals that the trial court erred in giving certain final instructions during her unsuccessful jury trial.
While assisting Kathy Fillio’s brother in aiding one of Fillio’s ill goats, Darlene Perkins was head-butted by a ram on Fillio’s property and broke her arm. Perkins later sued Fillio for “carelessly and negligently” maintaining her premises as to create an “unreasonably dangerous environment”, despite Fillio having no knowledge that Perkins was even on her property to begin with.
The Washington Circuit Court ruled in favor of Fillio, finding a lack of evidence indicating Fillio knew Perkins would be on her property or inside the area where she kept the ram and other sheep. It also ruled Fillio owed Perkins no duty of care.
Previously, the Indiana Court of Appeals reversed the grant of summary judgment and remanded for further proceedings, holding that genuine issues of material fact existed regarding whether rams are dangerous as a class of animal. And if so, whether Fillio took reasonable precautions under the circumstances to prevent the ram from causing injury to invitees.
A jury ultimately returned a verdict in favor of Fillio, prompting Perkins to file the instant appeal in Darlene Perkins v. Kathy Fillio, 20A-PL-00099.
Specifically, Perkins argued whether the trial court committed reversible error when it gave a jury instruction modeled after Model Civil Jury Instruction 1929; erred by instructing the jury about the duty to maintain a proper lookout; and whether a mistrial was necessary because Fillio flagrantly violated a motion in limine.
The Indiana Court of Appeals affirmed the jury verdict, first finding no error in giving Final Instruction #30, a modified version of Indiana Model Civil Jury Instruction 1929 on the “Duty to Invitee.”
“The issue decided on appeal following summary judgment was whether rams were dangerous as a class of animal, and this court held that there was a genuine dispute of fact regarding whether they were. Perkins’ status on the land was not necessary to that determination, and therefore, we hold her status on the land was not established as law of the case,” Judge Melissa May wrote for the appellate court.
It further found that the trial court did not err in leaving the question of Perkins’ status to the jury because the status turned on factual questions. Additionally, it noted that Perkins failed at trial to take issue with the omission of the word “occupant” from Final Instruction #30 and she did not tender an instruction indicating the numerous ways an invitation onto a premises may be extended. As a result, the appellate court found her argument to be waived.
Finally, it found that Final Instruction #30 did not require Perkins to prove additional, unnecessary elements. Rather, it concluded that the instruction simply restated elements Perkins was already required to prove.
“Perkins next contends Final Instruction #6 erroneously imposed duties on her that are not applicable in the premises liability context … Perkins concedes that maintaining a proper lookout when crossing the street is necessary and reasonable because oncoming traffic is a known hazard. However, Perkins believes she was not similarly situated to a pedestrian crossing the street. We disagree,” the appellate court wrote.
“Just as a pedestrian should anticipate that cars may be traveling down a road, a person entering an animal pen should anticipate that the animals in the pen may behave aggressively toward an unfamiliar presence,” it continued. “Final Instruction #6 was warranted by the evidence and was an accurate statement of law, and Perkins has not demonstrated the trial court erred by giving the instruction.”
Lastly, the appellate court found Perkins cannot contend on appeal that she was entitled to a mistrial because she failed to move for a mistrial at trial.
Civil Tort — Personal Injury/Foreseeability of Temple Attack
Harjinder Singh v. Amardeep Singh and Gurdwara Hargobind Sahib Ji Corp.
A worshiper’s lawsuit against the Sikh temple where he was stabbed in a 2018 confrontation was reinstated after the Indiana Court of Appeals found the temple had notice of an escalating factional feud over leadership. The temple also “had reason to recognize the probability or likelihood of looming harm,” the panel determined.
The COA reversed entry of summary judgment for the temple and remanded Harjinder Singh v. Amardeep Singh and Gurdwara Har Gobind Sahib Ji Corp., 20A-CT-959, to proceed in Johnson Superior Court.
Harjinder Singh went to the temple, or gurdwara, on April 15, 2018, for the traditional religious celebration of Vaisakhi, also known as Baisakhi. The annual spring commemoration holds historical and cultural significance for Sikhs and many Hindus.
But there had been trouble brewing over the direction of the temple, COA Judge Elaine Brown wrote, preceding incidents of that day that gave rise to Harjinder Singh’s lawsuit. Brown wrote that evidence in the case shows the gurdwara notified Greenwood police, who provided off-duty security, about “rising tensions between two different groups.”
Brown wrote that the gurdwara told police “it was concerned that certain agitators in the community would cause trouble at the temple.” On the advice of police, the gurdawara sent letters to “the potential agitators, instructing them not to enter the temple” before the events at the temple on April 15, 2018, when Harjinder Singh was stabbed in the shoulder with a spear.
Harjinder Singh sued his alleged attacker, temple board member Amardeep Singh, and later amended his complaint to also name the gurdwara. The Johnson Superior Court granted summary judgment for the defendants, finding the gurdwara owed no duty to Harjinder Singh under the foreseeability standard of Goodwin v. Yeakle’s Sports Bar, 62 N.E.3d 384 (Ind. 2016).
But the appellate panel saw evidence of foreseeability in the temple’s actions. In addition to the letters and communication with police, “more security guards were present on the premises” the day Harjinder Singh was stabbed than on a day to elect board members.
Likewise, “Signs were posted in the gurdwara that restricted photos or videos because of bad publicity and people becoming argumentative. That day, people carried weapons, which the designated evidence reveals was a normal practice, and carried weapons inside the place of worship, which Harjinder’s designated evidence indicated ‘was not normally done,’” Brown wrote for the panel.
The temple also had terminated the membership of a dozen people and hired a Marion County sheriff’s deputy to hand letters to those people at the door in case they had not received the notices in the mail.
“On these facts, we find that Gurdwara Hargobind had notice of present and specific circumstances that would cause a reasonable person to recognize the risk of an imminent criminal act, and had reason to recognize the probability or likelihood of looming harm on a special day of celebration at which its change in leadership was to be announced and the new Board of Directors was to take charge,” the panel concluded in reversing and remanding the case.
Criminal — Possession of Marijuana, Paraphernalia/Double Jeopardy
Steven W. Rowland v. State of Indiana
Applying a new test established this year by the Indiana Supreme Court to weigh claims of substantive double jeopardy, a retired justice authored an opinion that found convictions of possession of marijuana and paraphernalia are not duplicative punishment for the same crime.
Senior Judge Robert Rucker wrote for the Court of Appeals panel that affirmed those convictions in Steven W. Rowland v. State of Indiana,19A-CR-2761.
Steven Rowland was convicted in a Tippecanoe Superior Court bench trial of Level 6 felony possession of a narcotic drug, Class B misdemeanor possession of marijuana and Class C misdemeanor possession of paraphernalia. Police responding to a wellness check on Rowland found him behind the wheel of his car parked near the dumpster of a Lafayette apartment complex. He was arrested after officers found heroin in plain view and a search turned up marijuana, pipes and paraphernalia.
Rowland appealed the misdemeanor convictions on double jeopardy grounds, and Rucker noted the new double jeopardy test adopted this year in Wadle v. State, 19S-CR-340. There, justices overruled the actual evidence test of Richardson v. State, 717 N.E.2d 232 (Ind. 1999), in favor an analytical framework that applies statutory rules of construction.
Under the Wadle test, substantive double jeopardy is a two-part inquiry, Rucker noted: “First, a court must determine, under our included-offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts — as alleged in the information and as adduced at trial — to determine whether the charged offenses are the ‘same.’ If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, ‘included’ in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions.”
In Rowland’s case regarding the marijuana and paraphernalia convictions, “Each of these offenses is separate and distinct” and “(n)either is an element of the other” under the Wadle test, the panel held. But Rowland additionally invoked the “very same act” rule regarding these convictions, arguing, for example, that had only tobacco been in a pipe that formed the paraphernalia count, he could not have been charged, thus making possession of marijuana and possession of paraphernalia the very same act.
“In short Rowland’s position is that the marijuana found in one of the pipes established the instrument as paraphernalia and this was the same marijuana providing the bases for the marijuana possession charge,” Rucker wrote. But the panel rejected that argument.
“(T)he notion that the presence of marijuana in the pipes was important in establishing the instruments as paraphernalia is pure speculation. Nothing in the record says anything about how the conclusion was reached that the pipes satisfied the definition of paraphernalia,” Rucker continued. “Indeed, their physical appearance and proximity to the heroin may very well have been factors in that regard. This point was not pursued at trial.
“Based on the record before us we conclude Rowland’s behavior of possessing marijuana was separate and distinct from his behavior of possessing paraphernalia, the panel concluded in affirming the convictions.
Indiana Tax Court
Tax — Exemption Statute/Common Areas
Muir Woods Section One Assn., Inc., et al. v. Marion County Assessor, Joseph P. O’Connor
A final decision by the Indiana Board of Tax Review that dismissed claims from three homeowners associations was partially reversed by the Indiana Tax Court in an Aug. 31 decision.
Muir Woods Section One Association Inc., Muir Woods Inc., Spruce Knoll Homeowners Association Inc., and Oakmont Homeowners Association Inc. challenged the Indiana Board of Tax Review’s final determination dismissing their appeal that challenged the assessments of their common area land for the 2001 through 2003 tax years.
The HOAs, which are planned unit development homeowners associations that own residential property in Marion County, filed 141 “Petitions for Correction of An Error” with the Marion County Auditor in 2014. All of those Forms 133 asserted that the 2001, 2002, and 2003 property tax assessments of and resulting liabilities on the HOAs’ common area land were illegal as a matter of law because that land was so encumbered by restrictions that it had no value.
When the Marion County Property Tax Assessment Board of Appeals denied all of the Forms 133, the HOAs received leave from the Indiana Board to file one Form 133 consolidating all the previous forms that were denied by the PTABOA.
Their arguments remained the same, with the addition of two new arguments stating that the common area land assessments had been levied against the wrong persons and that the resulting property tax liabilities had been charged more than once in the same year.
After the HOAs amended their complaint three years later, the Indiana Board grant the assessor’s motion to dismiss the amended Form 133 for failure to state a claim upon which relief can be granted in a final determination. It dismissed the HOAs’ original claims, including the claim that its common areas were not subject to tax under the exemption statute, stating that like the others, this claim failed to present an error capable of correction via a Form 133.
But the Indiana Tax Court reversed in part the Indiana Board’s final determination dismissing the HOAs’ claim that their common area land had been taxed more than once in each of the years at issue.
“The resolution of this claim may involve an error that could be corrected by observing an objective fact. For example, a review of the property record cards and tax bills of the individual homeowners within each HOA community may reveal that an objective error was made. Accordingly, the HOAs’ claim that the tax was paid more than once, accepted as true, is capable of correction using a Form 133,” Judge Martha Wentworth wrote for the Tax Court.
“Because an administrative hearing was never conducted on the HOAs’ Amended Form 133, they were not able to present evidence to demonstrate that their common areas were taxed more than once. As a result, the Court remands that issue instructing the Indiana Board to allow the parties the opportunity to present evidence,” it continued.
The Tax Court affirmed, however, the final determination dismissing the HOAs’ claims that their common area property was exempt from property tax under the exemption statute and that the assessed values of their common areas did not include the proper discount prescribed in the land order and the assessment guidelines.•