Severson v. Board of Trustees of Purdue University

Decision Date07 November 2002
Docket NumberNo. 79A05-0112-CV-559.,79A05-0112-CV-559.
Citation777 N.E.2d 1181
PartiesDonald M. SEVERSON and Sandra Severson, Individually and as Personal Representatives of the Estate of Jay T. Severson, Deceased, Appellants-Plaintiffs, v. BOARD OF TRUSTEES OF PURDUE UNIVERSITY, Purdue University, John Sautter, Marvis Boscher, Chad Johnson, David G. Lewis, in their individual capacities, Purdue University Police Department, Purdue University Police Department Officer Ken Cox, Purdue University Police Department Officer Fred Davis, in their individual capacities, Office of the Sheriff, Tippecanoe County, Indiana, and Tippecanoe County Sheriff's Department Deputy Andrew Warren, in his individual capacity, Appellees-Defendants.
CourtIndiana Appellate Court

Andrew P. Wirick, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, IN, Attorney for Appellants.

John M. Stuckey, Laura L. Bowker, Stuart & Branigin, LLP, Lafayette, IN, Attorneys for Appellees, Board of Trustees of Purdue University, Purdue University, John Sautter, Marvis Boscher, Chad Johnson, David G. Lewis, Purdue University Police Department, PUPD Officer Ken Cox, and PUPD Officer Fred Davis.

Douglas J. Masson, Hoffman, Luhman & Masson, P.C., Lafayette, IN, Attorneys for Appellees, Office of the Sheriff, Tippecanoe County, Indiana, and Tippecanoe County Sheriff's Deputy Andrew Warren.

OPINION

BAKER, Judge.

A Purdue University freshman brutally murdered his resident-advisor Jay Severson after Jay had reported the freshman's cocaine possession to the police. Jay's parents sued Purdue, Purdue's Board of Trustees, four Purdue employees, and law enforcement agencies and officers who, at the time of the murder, were investigating the freshman's alleged drug dealing. The trial court granted summary judgment to all the defendants on each of the Seversons' federal and state claims. We agree that none of the defendants were liable under federal or state law for Jay's death.

FACTS

Twenty-seven-year-old Jay Severson was a graduate student at Purdue University for the 1996 fall semester. In addition to pursuing his course work, Jay was employed by Purdue as a residential advisor for one of Purdue's residence halls. His duties included counseling student residents and, when necessary, reporting student-resident criminal violations to the Purdue University Police Department (PUPD). He reported one such violation on September 15, having observed a bag of marijuana in the room of Matthew Schulz, one of Jay's floor residents. The police arrived and took Schulz, Jay, and the marijuana to the police station, where Schulz claimed that the marijuana was not his but belonged to a friend.

Less than a month later, on October 11, Jay returned to the PUPD where he met with Officer Ken Cox. Jay told Officer Cox that he "had received third hand" information "from one of his residents about the possible use of drugs on the floor." Appellants' App. p. 251. He identified Schulz and Schulz's roommate, Jerrod Eskew, as possibly being involved with narcotics. Jay also noted that his source of information wished not to be named.

Four days after meeting with Officer Cox, Jay entered Schulz and Eskew's room to check the smoke detector. Eskew and a friend, Jamin Willoughby, were the only ones present in the room at the time. Upon entering, Jay noticed Eskew hide something under his hat. When he questioned Eskew about what was under the hat, Eskew uncovered the cocaine. According to Willoughby, Eskew threatened to kill Jay if Jay told the police about the cocaine. Although Jay's encounter with Eskew took place at 7:30 p.m., Jay waited until 8:40 p.m. to notify the PUPD. In a police report filed the same night, Jay explained the reason for the delay:

I didn't want to mess up what the police already had going on so I B.S.ed with them and told them that I would be quiet about it. I told [PUPD Officer] Ken Cox @ 8:40 [p.m.] and he wanted to move on it right away.

Appellants' App. p. 246.

The police immediately proceeded to Schulz and Eskew's room, but Eskew had fled the room by the time they arrived. While the police were searching the room and Eskew's car, Eskew hid in Willoughby's room, which was located in the same residence hall. At around 2:00 a.m. that morning, Willoughby drove Eskew to Crawfordsville where Eskew obtained a shotgun and sawed off the barrel. The two returned to the residence hall that afternoon. Eskew walked to Jay's room and shot Jay, killing him almost instantly. Eskew then turned the gun on himself and committed suicide.

On April 25, 2001, the Seversons, individually and as personal representatives of Jay's estate, filed their third amended complaint for damages resulting from Jay's death. The complaint named the Board of Trustees of Purdue University, Purdue University, and four Purdue employees "in their individual capacities." Appellants' App. p. 161. The four Purdue employees are as follows:

(1) John Sautter—vice president of the residence halls and Director of Residence Halls;

(2) Marvis Boscher—assistant director for residential life for Purdue;

(3) Chad Johnson—manager for the residence hall in which Jay was murdered; and

(4) David G. Lewis—assistant manager for the same.

The complaint also included the law enforcement agencies and personnel involved in investigating Eskew's possible drug dealing from the residence hall:

(1) The PUPD and PUPD Officers Ken Cox and Fred Davis in their individual capacities; and

(2) The Office of the Sheriff, Tippecanoe County, Indiana, and Tippecanoe County Sheriff's Deputy Andrew Warren, in his individual capacity.

The Seversons brought a broad assortment of federal and state claims. Under their federal § 1983 claims,1 the Seversons contended that they were deprived of their constitutional liberty interest in maintaining a relationship with their son. Jay's estate, according to the complaint, suffered lost income for Jay's life expectancy and "hedonic damages for the non-economic value of being alive" as a result of being deprived of his constitutional rights. Appellants' App. p. 175. As for the state law claims, the Seversons asserted negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent hiring and supervision, in addition to violations of Article I, Sections 1, 12, and 21 of the Indiana Constitution. The Seversons also incorporated a claim for a declaratory judgment "that the Defendants violated the constitutional rights of the Plaintiffs." Appellants' App. p. 175.

In response, Purdue (including the Board of Trustees, the four individual employees, the PUPD, and the two PUPD officers) filed a motion for summary judgment. The Tippecanoe County Sheriff's Office and Tippecanoe County Sheriff's Deputy Andrew Warren (collectively, the Tippecanoe County defendants) filed a separate motion for summary judgment. On July 13, 2001, the Tippecanoe County defendants filed a motion to strike the entire affidavit of David L. Johnston, the Seversons' expert witness who was used to oppose the motions for summary judgment. Three days later on July 16, 2001, all the defendants joined in filing a motion to strike portions of other evidentiary materials submitted by the Seversons in their memorandum in opposition to summary judgment. In turn, the Seversons filed a motion to strike portions of the reply briefs submitted by Purdue and the Tippecanoe County defendants along with designated evidence offered in support of Purdue's reply brief.

The trial court eventually granted both motions for summary judgment against the Seversons on all their claims. However, the trial court denied all the motions to strike. The Seversons now appeal the grant of summary judgment on both motions as well as the denial of their motion to strike. The Tippecanoe County defendants appeal the denial of the July 13 motion to strike, while Purdue appeals the denial of the July 16 motion to strike.

DISCUSSION AND DECISION
I. Standard of Review

The party appealing from a summary judgment decision has the burden of persuading the court that the grant or denial of summary judgment was erroneous. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind.2001). Summary judgment is appropriate only if the pleadings and evidence sanctioned by the trial court show that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). The review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H); Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). On a motion for summary judgment, all doubts as to the existence of material issues of fact must be resolved against the moving party. Owens Corning, 754 N.E.2d at 909.

II. The Seversons' § 1983 Claims
A. § 1983 "Person"

Before considering whether a defendant has deprived a plaintiff of a right under the color of law, it is first necessary to determine whether a particular defendant is a "person" amenable to suit under § 1983. That statute allows citizens to sue government officials for violations of federal rights:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

42 U.S.C. § 1983 (emphasis added). The precursor to § 1983—§ 1 of the Civil Rights Act of 1871—was a...

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