Kleven v. St. Joseph County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BROOKE KLEVEN, et al.,

Plaintiffs,

v. Case No. 3:21-CV-961 JD

ST. JOSEPH COUNTY, et al.,

Defendants.

OPINION AND ORDER

Defendant, Motorola Solutions, Incorporated, has moved for the claims against them to

be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Motorola argues that the

Plaintiffs, Brooke Kleven et al. (“the Klevens”), have failed to state a claim against them on

which relief can be granted. (DE 40.) For the following reasons Motorola’s motion will be

denied.

A. Factual Background

Motorola is one of several defendants named by the Klevens in a lawsuit stemming from

events on December 31, 2019. The general facts of this incident are that the Klevens’ car, with

several members of the family inside, slid off the road and into a nearby pond. The family

members in the car became trapped and two perished while the others were injured before first

responders could rescue them from the car. During the course of this incident Brooke Kleven and

several witnesses made 911 calls which were answered by St. Joseph County emergency

dispatchers. The Klevens allege the tragic outcome of this accident was largely attributable to

tortious conduct by the 911 emergency dispatchers who failed to effectively direct the necessary

assistance to the Klevens.

Motorola’s alleged role in this incident stems from their contract with St. Joseph County

(“the Contract”) to implement a Computer Aided Dispatch system, called the PremierOne

System (“the P1 system”) at the St. Joseph County Public Safety Communications Consortium

(“PSCC”), and training the PSCC staff on how to utilize the system. Count IX of the Klevens’

complaint, an Indiana state law negligence claim, alleges that Motorola breached its duty of care

towards the Klevens in negligently implementing the P1 system, negligently training the

dispatchers on the use of the P1 system, and not complying with the safety duties and

responsibilities set forth in the written agreement between Motorola and St. Joseph County.1

Specifically, the Klevens allege that Motorola’s negligent, grossly negligent, or reckless actions

in implementing the P1 system were a direct and proximate cause of the ineffective emergency

response to their car being trapped in the pond, and the resulting injuries.

B. Legal Standard

In reviewing a motion to dismiss for failure to state a claim upon which relief can be

granted under Federal Rule of Civil Procedure 12(b)(6), the Court construes the complaint in the

light most favorable to the plaintiff, accepts the factual allegations as true, and draws all

reasonable inferences in the plaintiff’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143,

1146 (7th Cir. 2010). A complaint must contain only a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That statement must

1 The Klevens’ complaint refers to twenty-five specific negligent acts by Motorola. In the interest of brevity the

Court does not restate them here. (DE 5 at ¶ 636(a)–(y).)

contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its

face, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and raise a right to relief above the speculative

level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, a plaintiff’s claim need

only be plausible, not probable. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930,

935 (7th Cir. 2012). Evaluating whether a plaintiff’s claim is sufficiently plausible to survive a

motion to dismiss is “‘a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.’” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th

Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

C. Discussion

Motorola raises two arguments in favor of their motion to dismiss. First, they argue that

they owe no duty to the Klevens based on their contractual promises to St. Joseph County and

therefore the Klevens cannot establish the elements of a negligence claim. Second, they argue

that even if they did owe a duty to the Klevens, they would be protected by immunity from suit

under Indiana state law as a “provider” of a 911 service. The Klevens counter each of these

points, arguing Motorola owed them a duty based on the responsibilities it accepted through its

contract with St. Joseph County, and that it either does not qualify for statutory immunity or an

exception to the immunity statute applies. In the alternative, the Klevens request that the Court

grant them leave to amend their complaint and make a more definite statement of the legal duties

Motorola breached. The Court will address each of Motorola’s arguments in turn.

(1) The Court is unable to conclude that Motorola did not owe a duty to the

Klevens given the record at this stage of the proceedings

Motorola’s first argument is that their contract with St. Joseph County did not create a

legal duty to the Klevens, and consequently the Klevens cannot bring a negligence claim against

them. Given the limited development of the record so far, particularly the extensive redaction of

the Contract, the Court cannot agree with this assertion and will deny the motion.

The tort of negligence is composed of three elements: (1) duty owed to the plaintiff by

the defendant, (2) breach of duty by allowing the conduct to fall below the applicable standard of

care, and (3) compensable injury proximately caused by the defendant’s breach of duty.

Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Generally a

contract only establishes duties between the parties to the contract or third-party beneficiaries.

OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314–15 (Ind. 1996). Further, the intent to

establish a third-party beneficiary must be supported by the language of the contract itself. Id. at

1315.

The parties do not dispute that the only signatories to the Contract were Motorola and St.

Joseph County, and that the Klevens are not explicitly named as third-party beneficiaries. Rather,

the parties dispute whether Motorola is potentially liable for negligence in carrying out its

contractually assumed duties under the precedent established by the Indiana Supreme Court in

King v. Northeast Security Incorporated. 790 N.E.2d 474 (Ind. 2003).2 In King, the court held

that there are circumstances where a person can sue a contracting party for negligent

performance of their contractual duties even when the plaintiff is not a party to a contract or a

third-party beneficiary.

2 The Klevens’ response to the motion raises a host of additional sources for Motorola’s duty to them including

“common law, federal regulations, [and] industry standards” (DE 47 at 10). However, there are no references to

these sources in the complaint, which instead only discusses contractual duties, and the Klevens do not provide any

analysis or citation to authority to support these arguments. Accordingly, the Court will discard these arguments as

underdeveloped. See Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016)

(Arguments which are underdeveloped or unsupported by legal authority are waived).

In King the court applied this rule in holding that students, who were assaulted on school

property, could sue the security company hired by the school district for negligence despite not

being a party to the contract or a third-party beneficiary. Id. at 485–86. The King court concluded

the students were owed a duty by the security company because the school district had an

obligation to protect its students, the security company had assumed that responsibility through

the terms of their contract, and the students were “plainly among the persons who are properly

on the premises and entitled to expect reasonable steps to be taken for their safety.” Id. at 486.

The Klevens argue that they can bring a negligence claim against Motorola because their

case is directly analogous to King. The Klevens allege that by the terms of the Contract,

Motorola was required to fully implement the P1 System at the PSCC, train the PSCC staff on

the system, and otherwise abide by the safety duties and responsibilities in the Contract. The

Klevens argue that the purpose of the Contract was to support public safety dispatch operations

and is analogous to the contract in King which had the purpose of providing security services for

the school. Further, any negligence in performance of these contractual duties would

undoubtedly affect the safety of 911 callers, much like how negligence in performance of

security duties could impair student safety. Therefore, like the students in King, the 911 callers

were among those persons who would expect Motorola to take reasonable steps for their safety.

Motorola argues that King does not govern this case as it was a narrow holding and it is

factually distinct. Motorola first argues that the Indiana courts have been reluctant to expand the

scope of King and therefore it should not be expanded to these circumstances. In support

Motorola cites to two cases following King where the courts declined to extend a security firm’s

duties in other contexts. Polet v. ESG Sec., Inc., 66 N.E.3d 972, 981 (Ind. Ct. App. 2016); Star

Wealth Mgmt. Co. v. Brown, 801 N.E.2d 768, 774 (Ind. Ct. App. 2004). Motorola also offers the

policy argument that the Klevens’ interpretation dramatically and unfeasibly expands the scope

of King’s holding, taking it from recognizing duties to narrowly defined groups of people to

making Motorola an insurer for an “unlimited universe of people” who might dial 911 within the

PSCC’s service area. (DE 48 at 5.)

Second, Motorola argues that King is factually distinct. Motorola notes its contractual

duties were more limited than those of the security company in King and had in fact entirely

concluded by the time the December 31, 2019, incident took place. While the security company

was on-site and executing its contractual obligations when the King plaintiffs were harmed,

Motorola states it was not on-site at the PSCC in December 2019 as it had no contractual

obligation to be. Motorola indicates by that date it had already concluded its contractual

obligation of implementing the P1 System and training the PSCC dispatchers to use the system.

Motorola further indicates that its contract did not include an obligation to oversee 911

dispatchers after the “Go-Live” date.3 In support of these arguments, Motorola proffered an

extensively redacted copy of the 500-page Contract which the Court considered in reviewing this

motion. Brownmark Films v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (“if a plaintiff

mentions a document in his complaint, the defendant may then submit the document to the court

without converting defendant's 12(b)(6) motion to a motion for summary judgment”).

The unredacted portions of the Contract would seem to support Motorola’s contention

that it is distinct from the contract in King and contains a narrow set of duties owed solely to St.

Joseph County, and thus no duty to the Klevens exist. However, Motorola’s extensive redaction

of the Contract precludes the Court from definitively reaching this conclusion. (See DE 41-1.)

3 The Klevens acknowledge Motorola had no contractual obligations as of December 31, 2019, but argue the point is

moot as they are only claiming Motorola negligently implemented the P1 System and negligently trained PSCC staff

(DE 47 at 19 n.4).

The King court grounded its conclusions about the security company’s assumption of duty in the

text of the contract itself, which clearly enumerated the security company’s obligations. King,

790 N.E.2d at 485–86. These obligations included requirements to provide exterior patrols,

ensure all personnel entering school property had proper identification, and be observant of any

criminal behavior which might occur in the parking lots. Id. at 486. Based on these provisions,

the King court found the contract’s purpose to plainly be for providing security services for the

school, including protecting members of the public such as students, who were properly on the

school premises. Id.

Subsequent cases in the Indiana courts interpreting King also rely heavily on reviewing

the contracts at issue to determine whether a duty exists. See Brown, 801 N.E.2d at 774 (in

affirming a grant of summary judgment, the court declined to find King governed the case, in

part because the plaintiff had not provided the contract at issue for the appellate court to analyze

and determine what responsibilities the security officer had assumed); Polet, 66 N.E.3d at 981

(in affirming a grant of summary judgment, the court declined to find King liability existed

because the contractual agreement made no mention of a duty to protect patrons from a stage

collapse caused by high winds).

Ultimately, Motorola’s extensive redaction of the Contract precludes the Court from

definitively reaching a conclusion about whether a duty exists. While the Court will not

speculate as to the content of the redacted portions of the Contract, the possibility that the vast

swathes of redacted text contain other terms which could impact the King analysis is sufficiently

plausible that the Court will not provide Motorola an adjudication on the merits based on the

existing record. 4 The issue of what, if any, duties Motorola owes the Klevens based on the

Contract is better resolved after some discovery has occurred, such as in a motion for summary

judgment. After there has been an opportunity for the Klevens to determine the full terms of the

contract during discovery, and specifically articulate what provisions support Motorola’s alleged

duty, the Court will be able to render a fully informed decision on the issue.5

(2) The Court will not grant this motion on the basis of an affirmative defense

Motorola’s second argument in favor of the motion is that they are shielded from liability

by Indiana law as they are a provider of 911 services. The Klevens argue Motorola is not eligible

for this immunity or, alternatively, qualifies for an exception to it. However, the Court does not

need to decide these issues now as immunity is an affirmative defense, and a Rule 12(b)(6)

motion is not the appropriate avenue to pursue an affirmative defense.

To begin, the Court will first provide some background on the issue of immunity. Indiana

law states that “providers” are immune from liability for injuries incurred by a person in

connection with “establishing, developing, implementing, maintaining, operating, and providing

911 service except in the case of willful or wanton misconduct.” Ind. Code. § 36-8-16.7-43. The

Klevens argue that Motorola does not meet the definition of a “provider” under the statute and

thus is not eligible for immunity, and in the alternative Motorola’s actions qualify for the “willful

or wanton misconduct” exception.

4 The Court does not intend to question the propriety of any of Motorola’s redactions or imply a public disclosure of

the entire Contract is the only course to resolve the question of duty. The Court reminds the parties that the judicial

tools of protective orders and filing documents under seal are available to protect confidential information.

5 The Court reaffirms that the Klevens, as the plaintiffs, bear the burden of proving the elements of their case,

including that Motorola owed them a duty based on the terms of the Contract.

What is most important for this motion, however, is the fact that immunity is an

affirmative defense. Howard Cty. Sheriffs Dept. and Howard Cty. 911 Comm. v. Duke, 172

N.E.3d 1265, 1272 (Ind. Ct. App. 2021), trans. denied sub nom. Howard Cty. Sheriff v. Duke,

175 N.E.3d 273 (Ind. 2021) (noting immunity for 911 service providers is an affirmative

defense). As the Klevens correctly note, a Rule 12(b)(6) motion is not the proper avenue for a

defendant to pursue an affirmative defense. In fact, the Seventh Circuit has strongly advised

district courts against resolving Rule 12(b)(6) motions on the basis of affirmative defenses as

such defenses are external to the complaint and the mere presence of an affirmative defense does

not render a complaint invalid. Brownmark Films, 682 F.3d at 690.

This admonition alone is sufficient cause for the Court to reject Motorola’s argument in

favor of their motion. That being said, the Court acknowledges that the Seventh Circuit has also

indicated that granting a Rule 12(b)(6) motion the basis of an affirmative defense may be

permissible when all the relevant facts are in the record. Id. However, the Court does not believe

that to the be the case here. As previously mentioned, there is an exception to the immunity

statute claimed by Motorola for “willful and wanton misconduct” and the Klevens argue their

complaint sets forth enough facts and inferences to establish Motorola’s behavior fits within that

exception. Ind. Code § 36-8-16.7-43; (DE 47 at 20.). Therefore, even if the Court assumes,

without deciding, Motorola is eligible for statutory immunity it is plausible the Klevens could

nonetheless prevail on their claim by establishing Motorola fits into the exception.6

6 Motorola argues that the Klevens’ have not alleged willful or wanton misconduct in their complaint and therefore

cannot argue this exception to the statutory immunity. (DE 48 at 6.) This appears to be a correct description of the

complaint but is not dispositive. First, Motorola does not cite to any authority requiring the Klevens’ complaint to

anticipate and include answers to possible affirmative defenses. Second, the Klevens argue the facts in their

complaint allow the trier of fact to infer Motorola’s misconduct was willful or wanton, which would be sufficient for

the trier of fact to conclude the exception applied.

The Court concludes the Klevens have pled sufficient facts, namely the twenty-five

alleged “negligent, grossly negligent, and reckless” acts, to claim that Motorola’s actions were

wanton or willful and therefore state a plausible claim for relief. (DE 5 at ¶ 636(a)–(y).)

Assuming these pleaded facts as true for the purpose of this motion, the Klevens have established

that Motorola’s conduct could rise to the level of willful or wanton misconduct. Reynolds, 623

F.3d at 1146. Willful or wanton misconduct has two elements: (1) the defendant must have

knowledge of an impending danger or consciousness of a course of misconduct calculated to

result in probable injury, and (2) the actor’s conduct must have exhibited an indifference to the

consequences of his own conduct. Howard Cty., 172 N.E.3d at 1271 (internal citations omitted).

It is entirely plausible that Motorola knew of the impending dangers which would result from

inadequately implementing and training the staff for a 911 dispatch system, such as the system

failing to provide aid to persons in dire need of help. It is further plausible that Motorola’s

alleged twenty-five tortious acts, such as launching the system with issues unresolved,

constitutes an indifference to the consequence of their own conduct.

Therefore, the Court concludes that granting the motion to dismiss on the basis of

Motorola’s proposed affirmative defense is inappropriate because of the Seventh Circuit’s

admonition against resolving 12(b)(6) motions on the basis of affirmative defenses and, in the

alternative, not all of the necessary facts are in the record to adjudicate the defense.

D. Conclusion

For the reasons previously discussed, Motorola’s motion to dismiss for a failure to state a

claim on which relief can be granted is DENIED. (DE 40.)

SO ORDERED.

ENTERED: July 22, 2022

/s/ JON E. DEGUILIO

Chief Judge

United States District Court