Borne by Borne v. Northwest Allen County School Corp.

• Decision Date: 17 January 1989
• Docket Number: No. 02A03-8801-CV-17,02A03-8801-CV-17
• Parties: 51 Ed. Law Rep. 217 Amanda BORNE, by Next Friend Bruce BORNE and Marilou Borne, Plaintiffs-Appellants, v. NORTHWEST ALLEN COUNTY SCHOOL CORPORATION and its Employees, Ellen West and Gilbert Baumgartner, Rita Michael, Lena Lindsey and Steven Fair, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1196

532 N.E.2d 1196

51 Ed. Law Rep. 217

Amanda BORNE, by Next Friend Bruce BORNE and Marilou Borne Plaintiffs-Appellants, v. NORTHWEST ALLEN COUNTY SCHOOL CORPORATION and its Employees Ellen West and Gilbert Baumgartner, Rita Michael Lena Lindsey and Steven Fair Defendants-Appellees.

No. 02A03-8801-CV-17.

Court of Appeals of Indiana, Third District.

Jan. 17, 1989.

Solomon L. Lowenstein, Jr., Roger W. Hultquist, Fort Wayne, for plaintiffs-appellants.

Mark W. Baeverstad, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for defendants-appellees.

GARRARD, Presiding Judge.

The plaintiff, Amanda Borne (Amanda), by and through her next friend and her parents Bruce and Marilou Borne, appeals a decision of the Allen County Superior Court that granted summary judgment in favor of the defendant school corporation, teacher and principal.

I. Issues

This case presents the following issues:

a. Whether the school corporation waived its affirmative defense of discretionary act-based governmental immunity from prosecution by waiting until it filed its motion for summary judgment to raise that defense;

b. Whether the trial court erred in ruling that the school corporation is immune from liability for professional judgments made by its employee, a special education teacher, concerning the degree of supervision required by mentally handicapped students on a field trip; and

c. Whether the Indiana Child Abuse Act imposed a ministerial duty upon the school corporation to report incidents of sexual contact between Amanda and her elementary school classmates to a child protection service or a law enforcement agency when the school corporation became aware of those incidents.

II. Facts

In September, 1984, when the incident that spawned this litigation occurred, Amanda Borne was a special education student at the Huntertown Elementary School, which was operated by the Northwest Allen County School Corporation (the school corporation). Her teacher was Mrs. Ellen West.

Amanda was involved in several incidents of sexual exploration with her male classmates at the Huntertown School, beginning in the third grade and ending in the sixth. The third grade episodes were limited to two instances in which defendant Gregory Michael allegedly dropped his pants and exposed himself to Amanda. In the fifth grade, Amanda, Greg, and Greg's fellow defendants Scott Lindsay and Eugene Fair were discovered in a remote area of the school playground at the noontime recess with their pants down. In both instances, Ellen West notified the parents of the students who had participated and sexual contact ceased thereafter.

The incident from whence this litigation arose occurred on September 21, 1984, when Amanda was eleven years old and in the sixth grade. The incident occurred during a class outing at the Fox Island Nature Preserve near Fort Wayne. Amanda, her five classmates and Mrs. West participated in the outing. After hiking through the Preserve, the students and Mrs. West started a campfire and then ate lunch. When they had finished lunch, Amanda, Greg, Scott and Eugene sought and received permission from Mrs. West to go to the nearby nature center in order to wash their hands in the bathroom located there.

The four students entered the nature center but then exited through a back door and entered the adjoining woods, where Amanda, Greg and Scott pulled down their pants. Amanda testified in her deposition that Scott unsuccessfully attempted to insert his penis into her vagina and that she and Scott remained standing during the entire time that they were in the woods with Greg and Eugene.

When Mrs. West noticed that the four students had not returned to the picnic area in a reasonable amount of time, she blew a whistle in order to alert them that they should return to the picnic area. When the students emerged from the woods after hearing the whistle, Mrs. West questioned them about their absence and learned that they had taken down their pants, but not that Scott had attempted to insert his penis into Amanda's vagina. The parties disagree about whether Amanda told Mrs. West at this time that she had participated voluntarily in the activity in the woods.

Later on the day of the field trip, Mrs. West wrote letters to the parents of the four students informing them of the incident. She also punished the students. No additional sexual incidents occurred among Mrs. West's students during the 1984-85 school year. Amanda transferred to a private school the following year. Neither Mrs. West nor any other employee of the school corporation reported the September 21st incident to the Allen County Department of Welfare or to a law enforcement agency.

On April 18, 1986, Amanda, by and through her next friend and her parents, filed suit against the school corporation, seeking to recover damages to defray the expense of the psychological counseling that Amanda underwent subsequent to the incident at Fox Island Nature Preserve. The school corporation answered the Bornes' complaint on May 9, 1986 and filed a request for a jury trial; it then filed an amended answer on June 2, 1986.

On June 25, 1987, the school corporation filed a motion for summary judgment, to which the Bornes responded on August 10, 1987 by filing a motion to strike the school corporation's governmental immunity defense, which had not been raised in either its answer or its amended answer. On August 17, 1987, the Bornes filed a memorandum in opposition to the school corporation's motion for summary judgment. The trial court granted the school corporation's motion for summary judgment and denied the Bornes' motion to strike, also on August 17, 1987. On August 19th, the school corporation filed a motion to make the granting of its summary judgment request a final judgment; the court granted the motion for entry of final judgment on September 21, 1987. The latter decision only applied to defendants Northwest Allen County School Corporation, Ellen West, and Gilbert Baumgartner, the principal of Huntertown School. It did not end the Bornes' actions against the parents of the three boys who had participated in the incident at Fox Island Nature Preserve.

On November 20, 1987, the Bornes filed a motion to correct errors, which the trial court denied. The Bornes then filed this appeal.

III. Discussion and Analysis

The Bornes argue first that the school corporation waived its affirmative defense of discretionary act-based governmental immunity from liability because it filed an answer to the Bornes' complaint that contained no affirmative defenses as required by Trial Rule 8(C). The Bornes point out that even the school corporation's amended answer contained no reference to the immunity defense, but instead stated, as an affirmative defense, that the "plaintiff failed to comply with the provisions of the Indiana Tort Claims Act with respect to providing proper notice of said claim with the defendants...."

The school corporation contends that its failure to raise the governmental immunity defense in its answer did not prejudice the Bornes because it clearly raised this defense in its motion for summary judgment, thereby affording the Bornes a full and fair opportunity to challenge the defense at trial. The school corporation further argues that it did not waive its governmental immunity defense because the belated raising of that defense did not cause prejudice to the Bornes. We agree.

In Honeywell, Inc. v. Wilson (1986), Ind.App., 500 N.E.2d 1251, the defendant raised, for the first time, in a summary judgment motion, an affirmative defense that the trial court deemed to have been waived because the defendant had not raised it in his answer. We reversed because we concluded that the defendant had not demonstrated that he had been prejudiced by the defendant's failure to raise the affirmative defense in his answer. We stated:

"These [trial] rules are designed to avoid pleading traps and, to the greatest extent possible, ensure that cases are tried on the issues that their facts present. Thus, the focus is not on technical procedure used to raise the issue, but on the issue's legal merits."

Id. at 1252.

The focus of our analysis in Honeywell then, was not whether the defendant could have raised his affirmative defense earlier, but instead, whether the defendant's failure to raise the affirmative defense earlier prejudiced the plaintiff. Our focus in this case is identical. A plaintiff must "affirmatively show prejudice to his case before [a belatedly raised affirmative defense] can be rejected." Kohlman v. Finkelstein (1987), Ind.App., 509 N.E.2d 228, 231. "The presumption is that issues can be raised as they, in good faith, are developed. This presumption can be rebutted by the party against whom the new issue is raised by an affirmative showing of prejudice. Selvia v. Reitmeyer (1973), 156 Ind.App. 203, 295 N.E.2d 869, rehearing denied. In this context, delay alone does not constitute sufficient prejudice to overcome the presumption. Instead there must be a showing that the party in opposition will be deprived of, or otherwise seriously hindered in the pursuit of some legal right if injection of the new issue is permitted. State Farm Mut. Auto Ins. Co. v. Shuman, Admx. (1977), 175 Ind.App. 186, 370 N.E.2d 941, trans. denied. " Honeywell v. Wilson, supra, 500 N.E.2d at 1252.

This view is supported by Moore's Federal Practice, which observes:

Rule 8(C) might seem to imply that affirmative defenses may be raised only by a pleading ... and not otherwise. This, however, is too narrow a construction of the rule.

Moore's continues:

[T]here is a split of authority as to whether a defendant may, subsequent to filing an answer, move for summary judgment on the basis of an affirmative defense omitted from the answer. While some cases hold that an affirmative defense not raised in the answer is waived and, therefore, not available as a basis for a summary judgment motion, other...