The Tort Claims Act and Scope of Employment; Burton v. Benner

A plaintiff can avoid Indiana’s Tort Claims Act if he can prove that a governmental employee’s act or omission was “clearly outside the scope of the employee’s employment.” But what is clear to one person may be muddy to the next. In this case, the Court helped teach us what this exception means.

In 2015, Benner was an Indiana State Trooper who drove an unmarked car (known as a “commission”) as part of his employment. Troopers that operate commissions are subject to a Standard Operating Procedure that established guidelines for the operation of the vehicle when the officer is on- or off-duty and during both emergency and nonemergency driving situations. Under those guidelines, Benner was required to maintain radio contact at all times, obey traffic laws, and respond to emergencies. He could also use the commission for de minimis personal use.

On June 4, 2015, Benner use his commission to drive to his son’s baseball game. On the way, he tried to pass a vehicle in front of him. As Benner crossed into the opposing lane, he saw an oncoming motorcycle. While Benner tried to avoid a collision, the motorcycle (driven by Burton) locked its brakes and rolled over, injuring Burton.

Burton sued Benner, who claimed he was immune from personal liability and moved for summary judgment. The trial court granted that motion, and Burton appealed. The Court of Appeals found a genuine issue of material fact because reasonable factfinders could disagree on whether Benner was acting outside the scope of his employment at the time of the accident. The Court then granted transfer.

On transfer, the court emphasized that the question is not whether Benner was actually acting within the scope of his employment at the time of the accident; rather, it was whether he was clearly outside of the scope of his employment. And the Court found that Benner’s conduct did not cross that bar.

The undisputed evidence in this case indicates Trooper Benner complied with the vast majority of State Police procedures for operating his police commission while off duty. His “conduct [was] of the same general nature as that authorized, or incidental to the conduct authorized” by the State Police and included maintaining radio contact and conforming to a dress code. Additionally, as the trial court observed, Benner’s presence on the road and his ability to respond to nearby emergency situations undoubtably provided a benefit to the State Police through increased police presence on the roads. This ability to suddenly become available for official duties certainly “furthers his employer’s business.”

The fact that Benner was speeding did not change this result, as he was (at most) 10 miles per hour over the speed limit. This minor violation of the guidelines did not move Benner “clearly outside” the scope of his employment.

The “clearly outside” standard set forth in Indiana Code section 34-13-3-5(c)(2) represents a high bar and, in this case, we are not convinced that bar has been cleared.

Lessons:
1. A government employee is not immune by suit if an injury is caused by an action or omission that is clearly outside the scope of his employment.
2. An act or omission is not clearly outside the scope of employment if it is of the same general nature as that authorized, or incidental to the conduct authorized by the government.
3. A minor violation of governmental rules will not place the employee’s conduct clearly outside the scope of his employment.

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