Michaele Schon and Neal Schon v. Mike Frantz, ESG Security, Inc., Allen County War Memorial Coliseum, and Live Nation Worldwide, Inc.

FILED

Sep 18 2020, 8:49 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE

Jeffrey C. Gerish ALLEN COUNTY WAR

Plunkett Cooney MEMORIAL COLISEUM

Bloomfield Hills, Michigan Michael H. Michmerhuizen

Kevin K. Fitzharris

Pamela A. Paige Barrett McNagny LLP

Plunkett Cooney Fort Wayne, Indiana

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Michaele Schon and Neal September 18, 2020

Schon, Court of Appeals Case No.

Appellants-Plaintiffs, 20A-CT-741

Appeal from the Allen Superior

v. Court

The Honorable Craig J. Bobay,

Mike Frantz, ESG Security, Inc., Judge

Allen County War Memorial Trial Court Cause No.

Coliseum, and Live Nation 02D02-1708-CT-426

Worldwide, Inc.,

Appellees-Defendants

Crone, Judge.

Court of Appeals of Indiana | Opinion 20A-CT-741| September 18, 2020 Page 1 of 20

Case Summary

[1] Michaele Schon was allegedly injured at a concert at the Allen County War

Memorial Coliseum (Coliseum). She and her husband Neal filed a complaint

for damages against the Coliseum and other entities. The Coliseum filed a

motion for summary judgment, asserting that it was entitled to immunity as a

political subdivision under the Indiana Tort Claims Act (ITCA) and denying

liability based on various other theories. The trial court granted the motion.

On appeal, the Schons argue that the trial court deprived them of an

opportunity to conduct additional discovery and that the Coliseum is not

entitled to immunity as a political subdivision under the ITCA. We disagree

and therefore affirm.

Facts and Procedural History

[2] The Coliseum is a multipurpose arena that hosts sporting events, concerts, and

other entertainment events. The Coliseum is owned by the Allen County Board

of Commissioners (Commissioners) and is operated by Allen County through

the Allen County War Memorial Coliseum Board of Trustees (Trustees).

[3] Neal is a member and founder of the rock band Journey. Michaele travels with

the band and attends every show. She greets fans and takes video of the band

during the show.

[4] The Commissioners executed a security services agreement (Security

Agreement) with ESG Security, Inc. (ESG), pursuant to which ESG agreed to

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provide security services at the Coliseum. Specifically, the Security Agreement

provides as follows:

WHEREAS, [the Commissioners] through [their] Allen County

War Memorial Coliseum Board of Trustees [operate] the Allen

County War Memorial Coliseum and support facilities in Fort

Wayne, Allen County, Indiana (collectively, the “Venue”) and

incidental thereto [host] sporting events, conferences, expositions

and other events; and

WHEREAS, the parties wish to provide for the availability of

ESG’s services as the security provider for events hosted or

produced by [the Commissioners] at the Venue and for general

premises security at the Venue.

Appellants’ App. Vol. 2 at 97. An event is defined as an “activity for which

tickets are sold to the public or a private activity [that] is held pursuant to a

contract between [the Commissioners] and third parties.” Id. Pursuant to the

Security Agreement, the Commissioners agreed to

Designate a representative for each event to coordinate ESG’s

services with others involved, but under no circumstances will

[the Commissioners] have the right or responsibility to control

ESG personnel’s work activities, set or enforce their wages, hours

and/or other conditions of employment or in any way treat

and/or direct them as joint officers, supervisors and/or

employees and/or agents of any third parties holding or

presenting the event.

Id.

The [Commissioners assume] no responsibility whatever for any

property placed in or upon said Venue by ESG, and [the

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Commissioners are] hereby expressly relieved and discharged

from any and all liability for any loss, injury or damage to the

person or property that may be sustained by reason of the

services rendered to [the Commissioners] or any part thereof

under this contract.

Id. at 100.

[5] The incident giving rise to the Schons’ complaint occurred on March 31, 2017,

when Journey was performing at the Coliseum. Michaele was at Journey’s

show that night. Throughout Journey’s performance, Michaele filmed the

band, moving back and forth between the front and the side of the stage. Id. at

125. In her deposition, she testified that the Coliseum did not “give a

credential,” but she had a “laminate.” Id. at 128. The final song performed by

Journey before the encore was “Don’t Stop Believing.” Id. at 124. During that

song, there was a confetti release. Michaele moved to the front of the stage to

film the confetti release. Id. at 125. An ESG security guard, Mike Frantz, was

standing nearby. Id. at 127. Michaele testified that while she was filming the

confetti release, Frantz, without saying a word, put two hands on her and threw

her into the “PA.” Id. at 128. She further testified that two of Journey’s own

security guards had to remove Frantz “off” her. Id. In his deposition, Frantz

testified that he asked Michaele if she was with the band, and she said yes. Id.

at 112. He testified that he asked her if she had a lanyard, laminate, or

credentials, and he did not hear an answer or see her mouth move, so he put his

arms out and walked her out of the barricaded area. Id. He testified that he

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never had physical contact with Michaele and never invaded her personal

space. Id. at 114.

[6] On August 10, 2017, the Schons filed a complaint against Frantz, ESG, and the

Coliseum, asserting the following claims: respondeat superior - assault and

battery; intentional infliction of emotional distress; negligence;

negligence/premises liability; negligent hiring, supervision, and retention of

security personnel; and negligent undertaking. 1 Id. at 42-55. The Schons later

amended their complaint to add Live Nation Worldwide, Inc., which had

executed a license agreement with the Trustees for Journey to perform at the

Coliseum on the day of the incident.

[7] On November 8, 2019, the Coliseum filed a motion for summary judgment, a

brief in support of its motion, and a designation of evidence. The Coliseum

asserted that there is no genuine issue of material fact and it is entitled to

judgment as a matter of law on three grounds: (1) the Coliseum is a political

subdivision under the ITCA and as such is immune from liability for the act or

omission of anyone other than itself or its employees; (2) ESG is an

independent contractor of the Coliseum, and the Coliseum, as a principal, is not

liable for the actions of its independent contractors; and (3) as for the Schons’

negligent hiring claim, there is no claim in Indiana for the negligent hiring of an

independent contractor, and even if ESG was an employee of the Coliseum, the

1

The Schons also alleged a claim for loss of consortium, but the trial court granted summary judgment in

favor of the Coliseum on that claim, which the Schons do not appeal.

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Coliseum would not be liable because there is no evidence that the Coliseum

had knowledge that ESG and/or Frantz were in the habit of misconducting

themselves. Id. at 57, 61, 67. In support of its motion, the Coliseum designated

evidence including the affidavit of Randy L. Brown, executive vice president

and general manager of the Coliseum, the Security Agreement, excerpts from

the depositions of Frantz and Michaele, and the amended complaint. Id. at 88-

89, 92-146.

[8] On November 26, 2019, the Schons filed a motion for an extension of time to

respond to the Coliseum’s summary judgment motion, which the trial court

granted. On January 6, 2020, before the new deadline for filing their response

expired, the Schons filed a second motion for an extension of time, and the trial

court set a hearing on the matter. On January 9, 2020, the Schons untimely

filed their brief in opposition to the Coliseum’s summary judgment motion and

a designation of evidence, which included printouts of two webpages from the

Coliseum’s website and the license agreement between the Trustees and Live

Nation. On January 15, 2020, the Schons then filed an unopposed motion to

deem their response timely filed, which included the following:

5. Out of an abundance of caution, although the [Schons] would

have preferred to take a deposition to support their response, the

[Schons] filed their Response Brief on January 9, 2020, two days

after the initial deadline.

6. The [Schons] will rely on this Filed Response.

….

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9. If the Court grants this Motion, the hearing on the Second

Motion to Extend Time to Respond to Summary Judgment will

be moot and the hearing may be vacated.

Appellee’s App. Vol. 2 at 34. The trial court granted this motion and vacated

the hearing on the second motion for an extension of time. 2

[9] On February 11, 2020, a summary judgment hearing was held, at which the

Schons argued that they needed to conduct further discovery. On March 11,

2020, the trial court issued its final appealable order granting the Coliseum’s

motion for summary judgment on the following grounds: (1) pursuant to the

ITCA, the Coliseum is a political subdivision that is entitled to immunity from

losses that result from the conduct of anyone other than the Coliseum or the

Coliseum’s employees; (2) ESG is an independent contractor, and the Coliseum

is not liable for the negligence of its independent contractor; (3) there are no

applicable exceptions to the general rule that a principal is not liable for the

negligence of an independent contractor; and (4) the Coliseum is not liable on

the Schons’ negligent hiring claim because there is no evidence that the

Coliseum knew that ESG and Frantz were in the habit of misconducting

themselves. The trial court also found that the case had been pending since

2

The Coliseum recognizes that the trial court did not have the authority to deem the Schons’ response to

summary judgment timely but observes that a trial court has the discretion to grant an extension of time

when the request for an extension is made within the deadline for a response. Ind. Trial Rule 56(I); Seufert v.

RWB Med. Income Props. I Ltd. P’ship, 649 N.E.2d 1070, 1073 (Ind. Ct. App. 1995). Given that the Schons

filed their second motion for extension of time within the deadline for their response, the Coliseum suggests,

and we agree, that the trial court did not, technically speaking, deem the response timely but in effect granted

the Schons an extension of time.

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August of 2017, the Schons had been granted at least one, if not two motions to

enlarge time to file their response, and it was “not sympathetic to the argument

that the Schons need more time to depose other witnesses.” Appealed Order at.

19. This appeal ensued.

Discussion and Decision

[10] The Schons claim that the trial court improperly granted the Coliseum’s

summary judgment motion. “We review a trial court’s ruling on a summary

judgment motion de novo, applying the same standard as the trial court.”

Chariton v. City of Hammond, 146 N.E.3d 927, 931 (Ind. Ct. App. 2020), trans.

denied. Summary judgment is appropriate “if the designated evidentiary matter

shows that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C);

Chariton, 146 N.E.3d at 931. “A fact is ‘material’ if its resolution would affect

the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to

resolve the parties’ differing accounts of the truth, or if the undisputed material

facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d

756, 761 (Ind. 2009) (citations omitted).

[11] “In conducting our review, we consider only those matters that were designated

to the trial court during the summary judgment stage.” Chariton, 146 N.E.3d at

931. We must construe all facts and reasonable inferences drawn from them in

favor of the nonmoving party. Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279,

1282 (Ind. 2006). Under Indiana’s summary judgment standard, the moving

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party bears the onerous burden of affirmatively negating the opposing party’s

claim. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). If the moving party

carries its burden to demonstrate the absence of any genuine issue of fact and

that it is entitled to judgment as a matter of law, the nonmoving party “may not

rest on its pleadings, but must designate specific facts demonstrating the

existence of a genuine issue for trial.” Biedron v. Anonymous Physician 1, 106

N.E.3d 1079, 1089 (Ind. Ct. App. 2018), trans. denied (2019). “Mere speculation

is insufficient to create a genuine issue of material fact to defeat summary

judgment.” Id. On appeal, the nonmoving party bears the burden of persuading

us that the grant of summary judgment was erroneous, but we will nevertheless

“carefully assess the trial court’s decision to ensure that he [or she] was not

improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare

Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (quoting Blake v. Calumet Constr. Corp.,

674 N.E.2d 167, 169 (Ind. 1996)). We may affirm a summary judgment ruling

if it is sustainable on any legal theory or basis found in the evidentiary matter

designated to the trial court. W. Am. Ins. Co. v. Cates, 865 N.E.2d 1016, 1020

(Ind. Ct. App. 2007), trans. denied.

Section 1 - The trial court did not deprive the Schons of an

opportunity to conduct additional discovery.

[12] The Schons assert that the trial court erred in granting summary judgment

before allowing them to complete discovery. In support, they cite American

Management, Inc. v. Riverside National Bank, 725 N.E.2d 930 (Ind. Ct. App.

2000), for the general rule that “[i]t is generally improper to grant summary

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judgment when requests for discovery are still pending, unless pending

discovery is unlikely to develop a genuine issue of material fact.” Id. at 933.

They also cite Turner v. Boy Scouts of America, 856 N.E.2d 106 (Ind. Ct. App.

2006), arguing that “where key persons ‘have not yet been made available for

discovery,’ a court ‘cannot draw any conclusions as a matter of law regarding

[the plaintiff’s] claims … [and] even after discovery is complete, there might be

issues of material fact that prevent summary judgment disposition.’”

Appellants’ Br. at 22 (quoting Turner, 856 N.E.2d at 115). Both cases are

clearly distinguishable because the parties challenging summary judgment had

filed motions to compel discovery, which the trial court denied. American

Management, 725 N.E.2d at 933 (concluding that defendant’s claim that

documents sought would have supported him was unavailing and affirming

summary judgment on alternative grounds); Turner, 856 N.E.2d at 112-113

(reversing trial court’s denial of motion to compel discovery).

[13] Here, the Schons did not file a motion to compel discovery. Further, they

requested and were granted essentially two extensions of time and specifically

informed the trial court that they would rely on their response and that a

hearing for a second extension of time would be moot. Thus, the Schons

knowingly abandoned their request to conduct additional discovery. Under

these circumstances, we cannot say that the trial court deprived the Schons of

the opportunity to conduct additional discovery.

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Section 2 – The Coliseum is a political subdivision under the

ITCA.

[14] The Schons also argue that summary judgment is improper because the trial

court erred in finding that the Coliseum is a political subdivision entitled to

immunity under the ITCA, Indiana Code Chapter 34-13-3. In addressing this

argument, we are mindful of our well-established rules of statutory

interpretation:

The first step in interpreting a statute is to determine whether the

Legislature has spoken clearly and unambiguously on the point

in question. When a statute is clear and unambiguous, we need

not apply any rules of construction other than to require that

words and phrases be taken in their plain, ordinary, and usual

sense. Clear and unambiguous statutes leave no room for judicial

construction. However[,] when a statute is susceptible to more

than one interpretation it is deemed ambiguous and thus open to

judicial construction.

And when faced with an ambiguous statute, other well-

established rules of statutory construction are applicable. One

such rule is that our primary goal of statutory construction is to

determine, give effect to, and implement the intent of the

Legislature. …. And we do not presume that the Legislature

intended language used in a statute to be applied illogically or to

bring about an unjust or absurd result.

City of N. Vernon v. Jennings Nw. Reg’l Utils., 829 N.E.2d 1, 4-5 (Ind. 2005)

(citations omitted).

[15] The ITCA provides in relevant part that “a governmental entity or an employee

acting within the scope of the employee’s employment is not liable if a loss

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results” from certain enumerated conditions and acts, including an “act or

omission of anyone other than the governmental entity or the governmental

entity’s employee.” Ind. Code § 34-13-3-3(10). “The purpose of immunity is to

ensure that public employees can exercise their independent judgment

necessary to carry out their duties without threat of harassment by litigation or

threats of litigation over decisions made within the scope of their employment.”

Donovan v. Hoosier Park, LLC, 84 N.E.3d 1198, 1206-07 (Ind. Ct. App. 2017)

(quoting Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003)). Another

legislative purpose of the ITCA is to protect the fiscal integrity of governmental

bodies. See Harrison v. Veolia Water Indianapolis, LLC, 929 N.E.2d 247, 253 (Ind.

Ct. App. 2010) (“[O]ne of the main concerns ITCA intended to address clearly

was protection of the public treasury from a multitude of tort lawsuits.”), trans.

denied. “Whether the ITCA imparts immunity to a governmental entity is a

question of law for the court to decide.” Lee by & through Estes v. Bartholomew

Sch. Corp., 75 N.E.3d 518, 525 (Ind. Ct. App. 2017). “The party seeking

immunity bears the burden of proving that its conduct falls within the

provisions of the ITCA.” Id. The ITCA is in derogation of the common law,

and therefore it “must be strictly construed against limitations on the claimant’s

right to bring suit.” Schoettmer v. Wright, 992 N.E.2d 702, 706 (Ind. 2013)

(quoting City of Indianapolis v. Buschman, 988 N.E.2d 791, 794 (Ind. 2013)).

[16] A “governmental entity” for purposes of the ITCA “means the state or a

political subdivision of the state.” Ind. Code § 34-6-2-49. “Political

subdivision” for purposes of the ITCA means a:

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(1) county;

(2) township;

(3) city;

(4) town;

(5) separate municipal corporation;

(6) special taxing district;

(7) state educational institution;

(8) city or county hospital;

(9) school corporation;

(10) board or commission of one (1) of the entities listed in

subdivisions (1) through (9);

(11) drug enforcement task force operated jointly by political

subdivisions;

(12) community correctional service program organized under IC

12-12-1; or

(13) solid waste management district established under IC 13-21

or IC 13-9.5-2 (before its repeal).

Ind. Code § 34-6-2-110.

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[17] The parties focus their arguments on whether the Coliseum is a “county” or a

“board or commission of” a county. The Schons argue that based on a plain

reading of the statute, the Coliseum is neither. The Schons first baldly assert

that the Coliseum is not a “county,” as “Allen County and the Coliseum, quite

clearly, are two different entities.” Appellants’ Br. at 17. Next, they point out

that the statute’s list of entities does not include a war memorial. Relying on

the well-established rule of statutory construction that “the enumeration of

certain things in a statute necessarily implies the exclusion of all others,” they

assert that because the statute’s list of entities includes a county hospital, the

implication is that other independent county entities, such as a war memorial,

are not intended to be included within the term “county.” Id. (quoting

Januchowski v. N. Ind. Commuter Transp. Dist., 905 N.E.2d 1041, 1049 (Ind. Ct.

App. 2009), trans. denied). The Schons also assert that the Coliseum is not a

“board or commission of” a county. Emphasizing the statute’s use of the term

“of,” they contend that to include “any board or commission of another entity

appointed by a county … would dramatically expand the scope of ‘political

subdivision’ far beyond that provided by the statutory language[,]” particularly

when the statute must be construed narrowly as one in derogation of common

law. Id. at 18.

[18] Here, the undisputed designated materials establish that the Coliseum is not a

private entity; rather “[t]he Allen County War Memorial Coliseum is owned by

the Board of Commissioners of the County of Allen and operated by Allen

County through the Allen County War Memorial Coliseum Board of Trustees.”

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Appellants’ App. Vol. 2 at 92. We observe that “[i]n legal contemplation, the

board of commissioners is the county.” Gonser v. Bd. of Comm’rs, 177 Ind. App.

74, 77, 378 N.E.2d 425, 427 (1978) (quoting Bd. of Comm’rs of Daviess Co. v.

Clark, 4 Ind. 315, 316 (1853)); see also Bd. of Comm’rs v. Wild, 37 Ind. App. 32,

35, 76 N.E. 256, 257 (1905) (“The county is known in law only by its board of

commissioners and acts, as a county, through its board.”). A board of

commissioners is the county executive and transacts the business of the county

in the name of “The Board of Commissioners of the County of _____.” Ind.

Code § 36-2-2-2. As such, Allen County is its Commissioners. The

Commissioners, then, fall within the definition of a “county” or a “board or

commission of” a county. Indeed, this Court has held that there is no “valid

distinction between the filing of a suit against a county and the filing of a suit

against a board of county commissioners for purposes of the Tort Claims Act.”

Gonser, 177 Ind. App. at 77, 378 N.E.2d at 426-27. The question becomes

whether the relationship between the Commissioners and the Coliseum is such

that the Coliseum also falls within those categories.

[19] In that regard, we note that the legislature granted counties the authority to

provide and maintain a memorial to honor the “courage, valor, and sacrifice”

of the armed forces and others who served our country in World War I and

World War II. Ind. Code § 10-18-3-1. When a county establishes such a

memorial, the county is required to appoint a board of trustees “for the

establishment, maintenance, management, and control of the memorial[,]” and

when a trustee’s term expires, the county is required to appoint a new trustee.

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Ind. Code § 10-18-3-6. A trustee may be removed by the county upon a

showing that the trustee is incompetent, dishonest, or not performing the duties

required by law of the rules governing the board of trustees. Ind. Code § 10-18-

3-21(a). The trustees are required to make an annual report to the board of

county commissioners or the common council, which includes “the activities of

the trustees and of the receipts and expenditures of the memorial[,]” and

“prepare an annual budget and estimate for the board of commissioners and

county council or common council so that adequate appropriation of funds may

be made for the proper maintenance, repair, improvement, and extension of the

memorial.” Ind. Code § 10-18-3-16(a). In addition, “[a]ll claims for

expenditures incident to the maintenance of the memorial must be in the form

used for the payment of other claims by the county or city … [and] be allowed

by the board of commissioners or common council in the same manner as other

claims.” Ind. Code § 10-18-3-16(b).

[20] Thus, Allen County, acting through its Commissioners, established the

Coliseum and is operating it through the Trustees pursuant to statute.

Significantly, the Trustees do not operate completely independently of the

Commissioners but are answerable to them. The Commissioners own the

Coliseum. The Commissioners executed the Security Agreement with ESG. If

a judgment is rendered against the Coliseum in this action, it appears that it

would be satisfied from the assets of Allen County. See Gonser, 177 Ind. App. at

77, 378 N.E.2d at 427 (observing that if judgment was rendered against board

of commissioners it would be satisfied by the assets of the county). We

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conclude that this relationship is sufficiently direct such that the Coliseum is not

a separate entity from Allen County and/or its Commissioners for purposes of

the ITCA. 3 Accordingly, the Coliseum is a political subdivision for purposes of

the ITCA.

Section 3 – The Coliseum is immune from liability under the

ITCA.

[21] As a political subdivision, and thus a governmental entity entitled to the

protections of the ITCA, the Coliseum is immune from liability for an “act or

omission of anyone other than the governmental entity or the governmental

entity’s employee.” Ind. Code Ann. § 34-13-3-3(10). “This subsection’s

immunity ‘applies in actions seeking to impose vicarious liability by reason of

conduct of third parties’ other than governmental employees acting within the

scope of their employment.” Jacks by Jacks v. Tipton Cmty. Sch. Corp., 94 N.E.3d

712, 717 (Ind. Ct. App. 2018) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474,

481 (Ind. 2003)), trans. denied. For purposes of the ITCA, an “employee” is “a

person presently or formerly acting on behalf of a governmental entity, whether

temporarily or permanently or with or without compensation ....” Ind. Code §

3

The Schons cite Greater Hammond Community Services, Inc. v. Mutka, 735 N.E.2d 780 (Ind. 2000), to argue

that even though the Coliseum is operated by Allen County through its Commissioners, it should not be

considered a political subdivision. Mutka is inapposite because the entity at issue was a private nonprofit

corporation that merely contracted with a political subdivision. Id. at 784-85. The Schons also rely on

Buckley v. Standard Investment Co., 581 N.E.2d 920 (Ind. 1991). Buckley, too, is inapposite because the entity at

issue, a utility, was controlled by a board of directors and a board of trustees, and neither board was

answerable to the city government. Id. at 921-22. Specifically, the board of directors was appointed by the

board of trustees, and the connection between the city government and the board of trustees was “slight” and

did not “involve control over the actions or the makeup of the board.” Id. at 922.

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34-6-2-38(a). However, the term does not include “an independent

contractor[.]” Ind. Code § 34-6-2-38(b)(1).

[22] The Schons argue that the trial court erred in finding that ESG is an

independent contractor. However, they do not present any argument other

than that further discovery would have revealed facts to support their position.

Because we have concluded that the trial court did not deprive the Schons of an

opportunity to conduct additional discovery, we affirm summary judgment on

this issue. 4

[23] The Schons also contend that the trial court erred in finding that there are no

applicable exceptions to the general rule that a principal is not liable for the

negligence of an independent contractor. The Schons present a brief argument,

asserting that two exceptions apply. However, for the legal principles involved,

the Schons cite the Coliseum’s summary judgment brief located in the

appellants’ appendix rather than legal authority. Because the Schons have

failed to directly cite legal authority, we find this argument waived. See Ind.

Appellate Rule 46(A)(8)(a) (requiring that contentions in appellant’s brief be

supported by cogent reasoning and citations to authorities, statutes, and the

appendix or parts of the record on appeal); Loomis v. Ameritech Corp., 764

4

For the same reason we affirm the trial court’s finding that even if ESG and/or Frantz is an employee of

the Coliseum, the Coliseum would not be liable on the Schons’ negligent hiring claim because there is no

evidence that the Coliseum knew that ESG and/or Frantz were in the habit of misconducting themselves.

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N.E.2d 658, 668 (Ind. Ct. App. 2002) (failure to present cogent argument

waives issue for appellate review), trans. denied.

[24] Next, the Schons maintain that even if the Coliseum is entitled to immunity for

all their vicarious liability claims, the ITCA does not provide immunity to the

Coliseum for its own negligence. See Bartholomew Cty. v. Johnson, 995 N.E.2d

666, 679 (Ind. Ct. App. 2013) (“[A] governmental entity is not entitled to

immunity pursuant to Indiana Code Section 34-13-3-3-(10) if the loss results

from its own negligence, that is, if a loss results from an act for which it ‘can be

held directly liable.’”) (quoting City of Vincennes v. Reuhl, 672 N.E.2d 495, 498

(Ind. Ct. App. 1996), trans. denied (1997)). Therefore, they continue, the

Coliseum is still subject to liability on their claim for negligent hiring,

supervision, and retention of ESG. On that issue, we note our supreme court

has declined to recognize the negligent hiring of an independent contractor as

an independent tort:

Instead, [our supreme] court reiterated the general rule that a

principal is not liable for the negligence of an independent

contractor and decided that the basic concept of negligent hiring

was “subsumed” in the five existing exceptions to the general

rule of non-liability. [Bagley v. Commc’ns Co., 658 N.E.2d 584, 587

(Ind. 1995); Red Roof Inns, Inc. v. Purvis, 691 N.E.2d 1341, 1343-

44 (Ind. Ct. App. 1998), trans. denied.] “Thus, one who hires an

independent contractor may be liable for the failure to exercise

reasonable care to employ a competent and careful contractor

only when there is a non-delegable duty based upon at least one

of the five exceptions.” Red Roof Inns, 691 N.E.2d at 1344.

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Kahrs v. Conley, 729 N.E.2d 191, 195 (Ind. Ct. App. 2000), trans. denied.

Accordingly, because ESG is an independent contractor and no exceptions

apply, the protection granted to the Coliseum under the ITCA would also apply

to the Schons’ negligent hiring claim. We conclude that the Schons have failed

to establish that the trial court erred in finding that the Coliseum is a

governmental entity immune from liability under Section 34-13-3-3(10) of the

ITCA. Accordingly, we affirm summary judgment in favor of the Coliseum. 5

[25] Affirmed.

Robb, J., and Brown, J., concur.

5

While the governmental immunity statute may seem harsh, a wise man once said, “Some will win, some

will lose, some were born to sing the blues.” JOURNEY, DON’T STOP BELIEVING (Columbia Records 1981).

In addition, because we affirm the trial court’s findings that ESG is an independent contractor and that no

exceptions apply, the Coliseum would not be liable even if the ITCA did not apply. See Helms v. Carmel High

Sch. Vocational Bldg. Trades Corp., 854 N.E.2d 345, 346 (Ind. 2006) (“[A] principal (the general contractor) is

not liable for the negligence of an independent contractor (the sub) unless one of five exceptions applies.”)

(citing Bagley v. Insight Communications Co., 658 N.E.2d 584 (Ind. 1995)).

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