INDIANA COURT OF APPEALS
Plaintiff failed to show active concealment sufficient to toll the statute of limitations and U.S.C. Sections 1981, 1985 and 1986 were inapplicable to a wrongful death action.
In 2012, Lucius D. Washington was shot and killed by an Indiana State Police trooper. In 2017, Catherine J. Arnos, the personal representative of Washington's estate, filed claims for wrongful death and federal civil rights violations against Seth Mann, Steven E. Hillman, Douglas Carter, and the Indiana State Police (the ISP) (collectively the State Defendants). The State Defendants moved for summary judgment on the basis that the complaint was untimely filed and that the federal civil rights claims also failed as a matter of law. The trial court denied summary judgment. The State Defendants appeal, arguing that the trial court erred in concluding that there were genuine issues of material fact as to whether the statutory limitation period should be tolled by the doctrine of fraudulent concealment. They also assert that the trial court erred in denying summary judgment on the federal civil rights claims. The Court of Appeals agreed on both matters and reversed.
On May 18, 2012, Indiana State Police Trooper Seth Mann was on patrol in uniform and driving a marked car in Fort Wayne near the intersection of Main and Cherry Streets. Mann saw three individuals striking a person on the ground. Mann did a U-turn, and the men started walking away. Mann exited his vehicle and pursued the individual, later identified as Washington, that he saw striking the victim's head. Washington picked up his pace and ran to a fence about a hundred feet away from Mann's vehicle and started to climb it. Mann pulled Washington off the fence. They fell to the ground, with Mann landing on his back and Washington landing on top of Mann, chest to chest. Mann felt Washington's hand in the area of the left side of his gun belt. Although Washington did not strike or hit Mann, Mann punched Washington's midsection three or four times and then pushed him off to Mann's right. It was so dark that all Mann could see was Washington's white shirt when Mann drew his handgun and rapidly fired five shots, followed by two “controlled pairs” for a total of nine shots. Washington died as a result of the shooting.
On May 24, 2012, the ISP issued a one-page news release information form to notify the public that an investigation of Washington's fatal shooting had been opened. Arnos was not married to Washington, but she is the mother of his child Cameron, who was then four years old. Arnos contacted the Allen County Prosecutor's Office, which advised her that the matter was under investigation and that she would be contacted when the investigation was concluded. No one ever contacted Arnos. Other than hearing this news in the press, Arnos had no knowledge of the circumstances of Washington's death.
On May 23, 2017, Arnos, on behalf of the Estate and Washington's son, filed a complaint asserting a wrongful death claim against Mann and the ISP and federal civil rights claims under 42 U.S.C. §§ 1981, 1985, and 1986 against Carter, Hillman, and Mann in their individual capacities.
The Estate has failed to establish an issue of fact material to its fraudulent concealment theory.
Claims under § 1986 must be brought within one year and accrue when the plaintiff knows or should know that his or her constitutional rights have been violated. The State Defendants asserted that the Estate's federal civil rights actions accrued when Arnos learned that Washington had been shot and that the Estate filed its action after the limitation periods had run on its wrongful death and civil rights claims. The Estate argued that the applicable limitation periods were tolled based on the doctrine of fraudulent concealment.
Under the doctrine of fraudulent concealment, a person is estopped from asserting the statute of limitations as a defense if that person has concealed material facts from the plaintiff thereby preventing discovery of a wrong. Indiana Code Section 34-11-5-1, provides: “If a person liable to an action conceals the fact from the knowledge of the person entitled to bring the action, the action may be brought at any time within the period of limitation after the discovery of the cause of action.”
There are two types of fraudulent concealment, active and passive. GYN-OB Consultants, LLC v. Schopp, 780 N.E.2d 1206, 1210 (Ind. Ct. App. 2003), trans. denied. Although the Estate did not specifically identify which type of fraudulent concealment it was relying on, the Court of Appeals found that the Estate appeared to argue active fraudulent concealment. Active concealment involves affirmative acts of concealment intended to mislead or hinder the plaintiff from obtaining information concerning the wrongful act. Id. at 1210. To establish active fraudulent concealment, the plaintiff must show that “the defendant (1) had actual knowledge of the alleged wrongful act and (2) intentionally concealed it from the plaintiff (3) by making some statement or taking some action calculated to prevent inquiry or to mislead (4) upon which the plaintiff reasonably relied.” Lyons v. Richmond Cmty. Sch. Corp., 19 N.E.3d 254, 260-61 (Ind. 2014) (citations and quotation marks omitted). For the doctrine of fraudulent concealment to apply, Indiana law requires a showing of reasonable care and due diligence on the part of the plaintiff. Doe v. United Methodist Church, 673 N.E.2d 839, 844 (Ind. Ct. App. 1996), trans. Denied (1997).
The State Defendants contended that the Estate failed to exercise due diligence to investigate a possible claim and the Estate had not designated evidence showing that the State Defendants intentionally concealed Mann's shooting of Washington from the Estate by making some statement or taking some action calculated to prevent inquiry or to mislead upon which the Estate reasonably relied. The Estate asserted that the State Defendants took two affirmative actions that were intended to conceal any wrongdoing and were misleading: (1) the prosecutor's public announcement that no criminal charges would be filed against Mann and (2) Superintendent Carter's appointment of a new chairman to the Board to amend the April 4 Finding, which was not authorized by the SOP. However, the Court of Appeals stated that its review of the record did not reveal any designated evidence that indicates that the ISP's actions misled Arnos or prevented her from inquiring into the possibility of a claim or that Arnos reasonably relied on any of the ISP's actions.
Thus, the Estate failed to file its complaint within the applicable limitation periods and failed to designate evidence to show that the State Defendants took an affirmative act upon which Arnos reasonably relied that was intended to mislead her or prevent her inquiry into the possibility of a claim and that Arnos exercised due diligence to investigate the possibility of a claim. Accordingly, the Court of Appeals determined that the trial court erred by denying the State Defendants’ summary judgment based on fraudulent concealment.
The Estate's federal civil rights claims also fail on the merits.
Citing 42 U.S.C. § 1981, the Estate alleged that the killing of Washington and concealment of facts surrounding his death constituted discrimination on the basis of race and were part of a pattern and practice of Superintendent Carter demonstrating his disparate treatment of black citizens and employees and that this pattern discriminated against Arnos and Cameron by denying them equal protection and due process of law.
The Court of Appeals dealt first with the Estate's claim that was based solely on § 1981, the Court noted that § 1981 “prohibits racial discrimination in the making and enforcement of private as well as public contracts.” Significantly, § 1981 does not provide a remedy against state actors independent of § 1983. Therefore, the Court of Appeals found that the Estate's § 1981 claim against Carter, Hillman, and Mann failed on the merits as a matter of law, and that the trial court erred when it denied the State's motion for summary judgment on this claim.
The Court of Appeals went on to discuss that even if it were to assume that the Estate had properly sought a remedy pursuant to § 1983 for alleged violations of the rights protected under its § 1981 claim, it would still fail. Section 1983 provides a civil remedy against any “person who, under color of state law, subjects a United States citizen to the deprivation of any rights, privileges, or immunities secured by the federal Constitution or federal laws.” City of Warsaw v. Orban, 884 N.E.2d 262, 267 (Ind. Ct. App. 2007), trans. Denied (2008). “To prevail on a Section 1983 claim, ‘the plaintiff must show that (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States, and (2) the defendant acted under the color of state law.’” Melton v. Ind. Athletic Trainers Bd., 156 N.E.3d 633, 649 (Ind. Ct. App. 2020) (quoting Myers v. Coats, 966 N.E.2d 652, 657 (Ind. Ct. App. 2012)), trans. denied (2021).
Although Section 1981 prohibits racial discrimination in the making and enforcement of contracts and private employment, the police shooting of Washington and the investigation and review of the shooting did not involve a contract with or employment of Washington. The Estate contended that the SOP is a contract, but it provided no cogent argument or authority to support the contention. Therefore, the Court of Appeals found that the contention was waived. See Ind. Appellate Rule 46(A)(8)(a); Loomis, 764 N.E.2d at 668. The Court of Appeals also concluded that any claim that Washington's rights under § 1981 were violated failed on the merits.
The State Defendants asserted that the Estate's claims were barred by the intracorporate conspiracy doctrine. Under this doctrine, “an agreement between or among agents of the same legal entity, when the agents act in their official capacities, is not an unlawful conspiracy.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017). The rationale for this principle is that “[w]hen two agents of the same legal entity make an agreement in the course of their official duties, ... their acts are attributed to their principal,” and thus “there has not been an agreement between two or more separate people.” Id. The Court of Appeals noted that the United States Supreme Court has not given its approval to this doctrine in the specific context of § 1985(3), and there is a division in the courts of appeals respecting the validity or correctness of the intracorporate-conspiracy doctrine with reference to § 1985 conspiracies. Id. at 1868. Given that the federal courts are divided as to whether a § 1985(3) conspiracy can arise from official discussions between or among agents of the same entity, the Ziglar court observed that until it rules definitively on the issue, a reasonable official lacks the notice required before imposing liability. Id. at 1868-69 (concluding that officers in Department of Justice would not have known with any certainty that § 1985(3) prohibited their alleged agreements).
Because Superintendent Carter, Major Hillman, and Mann all worked for the ISP if the intracorporate conspiracy doctrine applies to public entities, they would not be subject to a § 1985(3) claim. Indiana courts have not addressed whether the intracorporate conspiracy doctrine applies to federal civil rights claims and the Court of Appeals determined that it did not need to decide whether the doctrine applied. Accordingly, the § 1985(3) fails on the merits, as does the § 1986 claim. Therefore, the trial court erred by denying summary judgment to the State Defendants on the Estate's conspiracy claim.
The Court of Appeals ruled in favor of the State Defendants in all respects and reversed the trial court on both issues.
Plaintiff failed to designated evidence to create a question of fact on Defendant’s sudden emergency defense.
Motorist injured in motor vehicle accident brought negligence action against other driver. The trial court granted defendant’s motion for summary judgment on the grounds that defendant suffered an unforeseeable sudden medical emergency and the Motorist appealed.
In 1975, when Henthorn was twelve years old, she was diagnosed with ornithine transcarbamylase (“OTC”) deficiency, which is an allergy to protein. Henthorn took medication for her OTC deficiency, and she watched her diet by limiting her protein intake. If Henthorn ate too much protein, she would get an extremely bad headache that would not go away. Henthorn had also gotten dizzy or close to passing out because of her OTC deficiency. However, Henthorn testified that her OTC deficiency did not really affect her on a daily basis, and she very rarely had symptoms.
On August 18, 2017, Henthorn left her home and travelled north to Indianapolis. As she approached the intersection of Stop 11 Road and Meridian Street, she lost control of her vehicle. As a result of the accident, Patrick sustained several injuries. Patrick filed a complaint against Henthorn in which he asserted that Henthorn had been negligent. Henthorn filed her answer and, as an affirmative defense, alleged that she had lost consciousness due to a sudden emergency not of her own making. Henthorn also filed a motion for summary judgment asserting that she was entitled to summary judgment because her sudden loss of consciousness was not foreseeable. Specifically, she asserted that her OTC deficiency was well controlled prior to the accident, she was under no driving restrictions, and she had not experienced any physical impairments or ill health that day. Accordingly, she contended that the designated evidence established that she did not breach any duty to Patrick.
In her motion for summary judgment, Henthorn asserted that she had suffered a medical emergency and, thus, had negated the breach element of Patrick's claim. Henthorn relied on the Court of Appeals’ opinion in Denson v. Estate of Dillard, 116 N.E.3d 535 (Ind. Ct. App. 2018), to support her claim. In that case, a passenger in a vehicle was severely injured when the driver suffered a heart attack and crashed. Id. at 537. The passenger sued the driver's estate, and the estate filed an affirmative defense and motion for summary judgment in which it alleged that the driver had suffered a sudden medical emergency. The trial court found that the estate had negated the breach element of the negligence claim and entered summary judgment for the estate. The Court of Appeals determined as a matter of law that the driver could not be found to have acted unreasonably after he suffered the heart attack and was rendered unconscious. Id. at 541. Thus, the question became whether the driver's sudden physical incapacity was reasonably foreseeable such that a reasonably prudent person in his position would not have risked driving.
Henthorn asserted that, as a matter of law, she could not be found to have acted unreasonably when she suddenly lost consciousness and that she did not act unreasonably when she decided to drive on the day of the accident because her designated evidence demonstrated that her condition was well controlled, that she felt healthy that day, and that she had never had any driving restrictions placed on her. The trial court agreed and entered summary judgment in her favor.
On appeal, Patrick conceded that if Henthorn suffered a medical emergency prior to the accident, the holding in Denson would apply. But Patrick asserted that whether Henthorn acted unreasonably in deciding to drive on the date of the accident was not and never had been the issue in this matter. Rather, he asserted that the real issue is whether she actually suffered a sudden medical emergency on the date of the accident. And Patrick contends that Henthorn's inconsistent statements created a genuine issue of material fact regarding whether she suffered a medical emergency prior to the accident.
When considering the meaning of witness testimony, the proper inquiry requires that courts consider both the question and the answer in context. The statements at issue in Henthorn's deposition were in response to questions about her medical history. Patrick's questions were not questions about whether Henthorn had suffered a medical emergency on the date of the accident. Rather, they were clearly questions about her medical history. Taking Henthorn's answers during the deposition in context and not in isolation, the only reasonable inference is that, when Henthorn testified that she had not had an episode in ten years, she was responding to questions about her medical history and was referring to the time period before the accident, not to the date of the accident.
Neither Henthorn's symptoms nor her memory of the accident would affect the outcome of the case. The Court of Appeals determined that Henthorn met her burden when she designated her affidavit and that of her doctor, which showed that Henthorn suffered from a medical emergency related to her OTC deficiency. Patrick did not designate any evidence to demonstrate that Henthorn did not suffer a medical emergency prior to the accident. The designated evidence consistently demonstrates that she suffered a medical emergency prior to the accident.
Thus, the Court of Appeals found that the designated evidence showed, and Patrick did not dispute, that Henthorn's condition had been well controlled, that she did not have any driving restrictions, and that she felt healthy on the morning of the accident, which demonstrates that her sudden physical incapacity was not reasonably foreseeable. See Denson, 116 N.E.3d at 541. Because the designated evidence demonstrates that Henthorn suffered a medical emergency which was not reasonably foreseeable, Henthorn affirmatively negated one element of Patrick's negligence claim. The Court of Appeals therefore affirmed the trial court’s entry of summary judgment in favor of Henthorn.
