# Kleven v. St. Joseph County

> District Court, N.D. Indiana · July 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10162843

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** July 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10162843. Public record. Not legal advice.