Terrell v. Rowsey

• Decision Date: 13 March 1995
• Docket Number: No. 48A02-9408-CV-481,48A02-9408-CV-481
• Citation: 647 N.E.2d 662
• Parties: 130 Lab.Cas. P 57,927, 10 IER Cases 650 Richard L. TERRELL, Appellant-Plaintiff, v. Dale ROWSEY and Red Giant Foods, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 662

647 N.E.2d 662

130 Lab.Cas. P 57,927, 10 IER Cases 650

Richard L. TERRELL, Appellant-Plaintiff, v. Dale ROWSEY and Red Giant Foods, Inc., Appellees-Defendants.

No. 48A02-9408-CV-481.

Court of Appeals of Indiana Second District.

March 13, 1995.

Transfer Denied June 15, 1995.

P. Robert Dawalt, Jr., Marion, for appellant.

Steven L. Jackson, Gary D. Johnson, Baker & Daniels, Fort Wayne, for appellees.

OPINION

FRIEDLANDER, Judge.

Richard Terrell appeals the trial court's grant of summary judgment in favor of his employer Red Giant Foods, Inc. and its employees and his supervisor, Dale Rowsey.

We affirm.

The facts most favorable to Terrell, the nonmoving party, are that Terrell was employed by Red Giant as a forklift driver. Terrell's supervisor, Rowsey, had been receiving reports from employees that Terrell was drinking on the job. On one specific occasion, a Red Giant manager informed Rowsey that Terrell had been drinking something from under a blanket in his car parked in the company lot. A few days afterward, on February 1, 1991, Rowsey observed Terrell in the same parking lot drinking in his parked car during the noon lunch break. An hour later, Rowsey walked out to the unattended car, opened an unlocked door and found a cooler underneath a blanket on the passenger floorboard. Inside the cooler were one full quart bottle of Miller Lite and another full can of beer. Rowsey left the car and the beer. Rowsey returned to the car during the afternoon break. As Rowsey approached, he observed Terrell sitting in the car and drinking from a can in an insulated holder and from something in a brown paper bag. Rowsey knocked on Terrell's window. When Terrell opened the window Rowsey immediately smelled what he believed to be beer. Rowsey asked Terrell what he was drinking and Terrell replied he was drinking Pepsi. Terrell refused Rowsey's request to see the Pepsi container. Terrell did comply, however, with Rowsey's request to see what was under the blanket. Terrell lifted the blanket and opened the cooler beneath it, which was empty. Rowsey confronted Terrell with the fact he smelled beer, whereupon Terrell stated that he had drank a beer at home during his lunch break. Rowsey did not believe Terrell's explanation, inasmuch as he had observed Terrell in the company parking lot during lunch. Rowsey then looked through the window onto the floor behind the driver's seat. Rowsey observed a cardboard tray of the type used to hold beer lying on the floorboard. The tray was upside down and underneath it was a brown paper sack. An open bottle protruded from the sack. Rowsey opened the car door approximately six inches and reached behind the driver's seat to grab the bottle, which was empty. Rowsey recognized the bottle as the Miller Lite bottle which had earlier been full. When Rowsey asked Terrell for an explanation Terrell did not respond. Ultimately, at a February 4, 1991 disciplinary meeting, Red Giant terminated Terrell in accordance with its policy against drinking as articulated in its employee handbook. The handbook states:

"DRINKING, DRUGS AND INTOXICATION

Any employee who consumes or possesses any intoxicants, alcohol or controlled substances on company premises, or on company business, will be subject to discharge for the first offense. The Company reserves the right to require chemical screening tests of any employee at any time, if there is some cause to believe they are under the influence of alcohol or controlled substances.

Any employee who reports to work showing evidence of being under the influence of alcohol or drugs in any degree will not be permitted to work. If an employee has already started to work when the condition is discovered, the employee shall be suspended immediately and subject to further disciplinary action, up to and including discharge.

The same rules apply whenever an employee is on company grounds, during non-working hours."

Record at 111-112.

Terrell filed a January 27, 1993 complaint in two counts against Rowsey and Red Giant. In count one, Terrell alleged that Rowsey broke and entered his car and trespassed upon his car at the express direction of Red Giant and that as a result of such defendants' tortious misconduct, Terrell suffered embarrassment, defamation and loss of quiet enjoyment of his property. In count two, Terrell alleged that Red Giant was grossly negligent in failing to supervise Rowsey.

On October 4, 1993, Rowsey and Red Giant filed a motion for summary judgment. Terrell's response to the motion consisted of a designation to Rowsey's deposition; allegations that Red Giant was responsible for Rowsey's actions and that plaintiff was entitled as against both defendants to punitive damages as a result of their actions. The trial court granted the defendants' motion for summary judgment, stating:

". . . . .

III. CONCLUSIONS OF LAW

1. This court has jurisdiction over the parties and subject matter hereto.

2. Defendants' intrusion was not wrongful. "There is no absolute right to be free from invasion of privacy ... Rather, there exists a right to be free from unreasonable invasions of privacy, much as the right to be free from unreasonable invasions of physical security. Berrier v. Beneficial Finance, 234 F.Supp. 204, 205 (N.D.Ind.1964).

3. In light of Terrell's diminished privacy interest (his car was on Red Giants' [sic] property during working hours), Red Giants' [sic] rule against drinking on company property, which includes the right to require chemical screening tests, Red Giants' [sic] obligation to provide employees a safe work place, and the momentary entrance of Terrell's car with no physical contact with Terrell, Terrell cannot, as a matter of law, establish Rowsey acted in such a manner as to "outrage or cause suffering, shame or humiliation" to an employee with "ordinary sensibillity," [sic] Continental Opitcal Company v. Reed, [sic] 86 N.E.2d 306, 308 reh'g denied 88 N.E.2d 55 (Ind.Ct. of App.1949).

4. Defendant's intrusion into Terrell's car was proper because "it is well settled that an employer has a duty to use reasonable care to provide his employees with a reasonable [sic] safe working place ...," City of South Bend v. Estate of Rozwarski, 404 N.E.2d 19, 21 (Ind.Ct. of App.1980); Accord Whitebirch v. Stiller, 580 N.E.2d 262, 264 (Ind.Ct. of App.1991). IOSHA mandates that "each employer shall establish and maintain conditions which are reasonably safe and healthful for employees, and free from recognized hazards that are causing or likely to cause death or serious physical harm to employees." Ind.Code 22-8-1.1-2. Courts have construed IOSHA's federal counterpart to require an employer to prevent foreseeable hazards caused by employees. See, e.g. General Dynamics Corp. v. OSHRC, 577 F.2d 453 (1st Cir.1979).

5. Indiana does not recognize the tort of negligent supervision as alleged in Terrell's complaint. Gossage v. Little Caesar Enterprises, Inc., 698 F.Supp. 160, 162 (S.D.Ind.1988).

6. As an independent justification and ground for the judgment entered by this court, this court finds that Terrell's claims are barred by the exclusivity provision of the Indiana Workers Compensation Act, Indiana Code 22-3-2 et seq. The court notes that this ground for summary judgment was raised by Defendants but was never responded to either in briefing or in oral argument by Terrell. Accordingly, the court finds that this is an independent ground in support of the court's judgment in favor of the defendants.

7. As further independent ground for its judgment for defendants, this court finds that Plaintiff has not contravened the material elements of the Defendants' Motion for Summary Judgment. In the Plaintiff's one-page "Response to Motion for Summary Judgment," Plaintiff designates as his evidence "The Deposition of Dale Rowsey." Such a perfunctory designation as a matter of law raises no issue for this court to consider on summary judgment, Rosi v. Business Furniture Corp., 615 N.E.2d 421, 434 (Ind.1993).

JUDGMENT

For the reasons more fully set forth herein, it is ordered, adjudged and decreed that Defendants' Motion for Summary Judgment is granted on all basis [sic] presented and that Plaintiff shall take nothing by his Complaint from these defendants. Costs to Plaintiff.

s/s Richard Payne

Special Judge Richard Payne

DATE: 6/16/94"

Record at 248-250. Terrell appeals and presents one issue:

Did the trial court err in granting the defendants' motion for summary judgment?

Preliminarily, we note the trial court declared Terrell's action to be precluded by the exclusivity provision of the Worker's Compensation Act. Terrell's injuries, however, are not physical and thus are not covered by the Act. In Perry v. Stitzer Buick GMC, Inc. (1994), Ind., 637 N.E.2d 1282, the supreme court held that the Act did not apply to a plaintiff who had sustained neither physical injury nor loss of physical function. Terrell alleges that he was defamed and that he suffered embarrassment and loss of quiet enjoyment of his property. Because Terrell's claims present no injuries covered by the Act, they are not foreclosed by its exclusivity provision. ¹

Terrell alleges that a material issue of fact remains which precludes summary judgment. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C). The burden is on the moving party to prove there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial. Midwest Commerce Banking Co. v. Livings (1993), Ind.App., 608 N.E.2d 1010. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any...