Thomas P. Donovan v. Hoosier Park, LLC d/b/a Hoosier Park, Racing & Casino, Centaur, Inc., Hoosier Park, L.P., Centaur Holdings, LLC, and Terrance Sollars

FILED
Sep 26 2017, 5:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE,
Laura B. Conway STATE OF INDIANA
Mark W. Rutherford Curtis T. Hill
Thrasher Buschmann & Voelkel, PC Attorney General of Indiana
Indianapolis, Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE,
HOOSIER PARK, ET AL
Scott E. Andres
Charles J. Maiers
Due Doyle Fanning & Alderfer,
LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas P. Donovan, September 26, 2017
Appellant-Plaintiff, Court of Appeals Case No.
48A02-1608-PL-1704
v. Appeal from the Madison Circuit
Court
Hoosier Park, LLC d/b/a The Honorable Angela Sims,
Hoosier Park, Racing & Casino, Judge
Centaur, Inc., Hoosier Park, Trial Court Cause No.
L.P., Centaur Holdings, LLC, 48C01-1212-PL-204
and Terrance Sollars, Jeremy
Hosier, in his capacity as an
employee of the Indiana Gaming
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Commission, Zach Wilkinson, in
his capacity as an employee of
the Indiana Gaming
Commission, and
Indiana Gaming Commission,
Appellees-Defendants
May, Judge.
[1] Thomas P. Donovan appeals the trial court’s entry of summary judgment in
favor of Hoosier Park, LLC d/b/a Hoosier Park, Racing & Casino, Centaur,
Inc., Hoosier Park, L.P. and Centaur Holdings, LLC (“Hoosier Park”), and
Terrance Sollars (collectively, “Hoosier Park Appellees”); Jeremy Hosier, in his
capacity as an employee of the Indiana Gaming Commission, Zach Wilkinson,
in his capacity as an employee of the Indiana Gaming Commission, and the
Indiana Gaming Commission (“IGC”) (collectively, “IGC Appellees”) on his
allegations of (1) false imprisonment, (2) wrongful arrest, (3) malicious
prosecution, (4) abuse of process, and (5) battery. We affirm.
Facts and Procedural History
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[2] Since 1999, Donovan has been making money at casinos by gambling as an
“advantage player.” (Appellant’s App. Vol. III at 13.) 1 According to Donovan,
“an advantage player plays games at casinos . . . by counting cards in blackjack
or playing video poker games that are a near a [sic] 100 percent return.” (Id.)
In this time, Donovan has also been banned from a number casinos. 2
[3] On July 19, 2011, Hoosier Park sent Donovan a letter (“the July 19 letter”) via
certified mail informing him he was banned from Hoosier Park Racing &
Casino, located in Anderson, Indiana, and its “Off-Track Betting facilities
located in Indianapolis, Ft. Wayne, and Merrillville, Indiana (Premises).”
(Appellant’s App. Vol. II at 35.) Hoosier Park mailed the July 19 letter to
Donovan’s address on file, however the address on the letter and envelope
contained a typo, addressing it to “Thomas T. Donovan,” (id.), rather than
Thomas P. Donovan. The July 19 letter notified Donovan he “may not return
at any time to the Premises during the period of [his] ejection[,]” (id.), and
would be “considered a trespasser and subject to arrest” if he returned during
that time. (Id.) Hoosier Park indicated the earliest Donovan would be eligible
to apply for readmission was July 19, 2013, under the following conditions:
1
Donovan initially appealed this matter in Court of Appeals Cause No. 48A04-1512-PL-02282, but we
remanded the Cause to the trial court for further proceedings. The appendices from that prior appeal are in
the record before us, and we refer to them herein as “Prior Cause App.”
2
Donovan testified to being evicted from Grand Victoria Casino & Resort in Rising Sun, Indiana, Belterra
Casino Resort in Florence, Indiana, Blue Chip Casino in Michigan City, Indiana, and Hollywood Casino in
Tunica, Mississippi. (See Appellant’s App. Vol. III at 14-19.) One instance of his being banned was the
subject of our Indiana Supreme Court’s decision, Donovan v. Grand Victoria Casino & Resort, L.P., 934 N.E.2d
1111 (Ind. 2010).
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(a) You are not a threat to the safety of Hoosier Park Racing &
Casino customers, yourself, employees and agents of Hoosier
Park Racing & Casino, the Indiana Gaming Commission and
the Indiana Horse Racing Commission;
(b) You will gamble responsibly;
(c) You will not abuse drugs or alcohol while on the Premises;
(d) You will not cheat at a gambling game;
(e) You will not behave in a disruptive manner;
(f) You will not steal;
(g) You are not indebted to Hoosier Park Racing.
(Id.) The last sentence of the July 19 letter indicated Hoosier Park “regret[ted]
the necessity to ban [Donovan] from the Premises, but believed such an action
to be necessary and in the best interests of Hoosier Park Racing & Casino and
its patrons.” (Id.) Donovan received the July 19 letter on July 21, 2011, and
signed the certified mail receipt.
[4] Donovan returned to Hoosier Park on July 22, 2011 and July 29, 2011. His
presence went unnoticed both times by Hoosier Park’s security team because he
gambled using a “Player’s Club” card 3 belonging to two other patrons, Jennifer
Harker and Donald Harker, who were acquaintances of Donovan. After these
two occasions, Hoosier Park’s security team realized Donovan had been
visiting Hoosier Park and was using the Harkers’ Player’s Club card to conceal
his identity. Thus, the security team set an alert to trigger an alarm if the
Harkers’ Player’s Club card was used again at the Casino.
3
Player’s Club cards are essentially rewards cards that track its user’s visits and offer perks when the user
returns to the casino. (Appellant’s App. Vol. III at 24.)
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[5] On August 5, 2011, Donovan returned to Hoosier Park and used the Harkers’
Player’s Club card at a slot machine. His use of the card triggered the security
alert, and the security team closely examined surveillance footage to confirm
Donovan was indeed the person at the slot machine. Security called the IGC
Squad Office on site, and informed IGC Agent Zach Wilkinson that Donovan,
an “evicted patron,” (id. at 98), was on the property and was currently playing
at a slot machine. Agent Wilkinson alerted IGC Agent Jeremy Hosier, who
was also on duty.
[6] Darlene Blevins, a Security Shift Supervisor at the casino, proceeded to the area
of the casino where Donovan was playing the slot machines. Blevins
approached Donovan, showed him a copy of the July 19 letter, reminded him
he was banned from the premises, and told him he must leave immediately.
Donovan signed the copy of the letter and began walking away. Agent Hosier
then made his way down to the area of the casino where Donovan was. Agent
Hosier briefly spoke about the situation with Blevins and Terrance Sollars, a
Security Shift Manager at Hoosier Park.
[7] Donovan went to a counter to redeem some tickets for cash and then began
walking toward an exit of the casino. Agent Hosier, Agent Wilkinson, Blevins,
and Sollars followed him. Agent Hosier approached Donovan and asked to
speak with him about his trespassing, but Donovan said “[he] was leaving, [he]
had the right to leave,” (Appellant’s Prior Cause App. Vol. 2 at 408), and
continued walking quickly toward the exit. Agent Hosier attempted to explain
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to Donovan he could not leave until he spoke with him about the trespassing
crime he had just committed.
[8] Donovan took an escalator and Agent Hosier took the stairs to catch up with
Donovan. At the top of the escalator, Agent Hosier again asked Donovan to
stop and asked for his identification. Donovan kept walking and ignored Agent
Hosier as Agent Hosier walked alongside him. Agent Hosier then moved
quickly to step in front of Donovan, told him to stop, and blocked him from
exiting the doors of the casino. Donovan became loud and would not engage
in a civil conversation with Agent Hosier. Agent Hosier informed Donovan he
was being arrested for trespass and disorderly conduct. Agent Hosier began to
handcuff Donovan, but Donovan resisted. Agent Wilkinson attempted to
stabilize Donovan so Agent Hosier could handcuff him, but both agents were
having trouble getting Donovan’s arms behind his back. Blevins and Sollars
then also aided in controlling Donovan so Donovan could be handcuffed.
Donovan resisted so much he was eventually brought down to the ground by
the IGC Agents and Hoosier Park’s security employees. During the struggle to
handcuff Donovan, Donovan knocked down a lamp and a decorative tree,
spilled a fountain drink, and lost a shoe.
[9] Agent Wilkinson and Agent Hosier escorted Donovan to the IGC Squad
Office. Agent Hosier filed a probable cause affidavit for arrest, describing the
events and noting Donovan admitted to Blevins he was aware of the July 19
letter as he had “given the eviction notice to his lawyer.” (Id. at 99.) Sollars
called the Anderson Police Department, who transported Donovan to jail.
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[10] The State charged Donovan with Count I: Class A misdemeanor resisting law
enforcement, 4 Count II: Class A misdemeanor criminal trespass, 5 and Count
III: Class B misdemeanor disorderly conduct. 6 In August 2012, the State
dismissed Counts I and II and entered into a pretrial diversion agreement with
Donovan regarding Count III.
[11] On December 27, 2012, Donovan sued Hoosier Park Appellees and IGC
Appellees alleging false imprisonment, wrongful arrest, malicious prosecution,
abuse of process, and battery. Both Hoosier Park Appellees and IGC Appellees
moved for summary judgment on all claims. The court held a hearing on all
defendants’ motions for summary judgment on May 6, 2015. On September
25, 2015, the court entered summary judgment in favor of all defendants on all
claims. The trial court found Donovan waived all state law claims against the
IGC Appellees by failing to provide the IGC Appellees timely notice within 270
days of the “loss,” as required by the Indiana Tort Claims Act (“ITCA”). Ind.
Code § 34-13-3-6(a) (1998).
[12] On October 20, 2015, Donovan filed a Motion to Correct Error. On October
23, 2015, the IGC Appellees filed a Motion to Correct Error, claiming the trial
court erred in finding Donovan failed to timely file a notice of state tort claim.
On November 30, 2015, the trial court granted the IGC Appellees’ Motion to
4
Ind. Code § 35-44-3-3(a)(1) (2011) (repealed by P.L. 126-2012, Sec. 53, eff. July 1, 2012).
5
Ind. Code § 35-43-2-2(a)(1) (2009).
6
Ind. Code § 35-45-1-3(a)(2) (2006).
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Correct Error, vacating the portion of its summary judgment order addressing
the state tort claims against the IGC Appellees, and stating it would review the
state tort claims against the IGC Appellees and issue a subsequent order on the
merits of those issues. The trial court also denied Donovan’s Motion to Correct
Error.
[13] Before the trial court issued its subsequent order on the remaining issues,
Donovan filed a Notice of Appeal with this Court. The IGC Appellees filed a
motion to remand to the trial court for resolution of the remaining state tort
claims. On June 24, 2016, this Court granted the IGC Appellees’ motion. On
July 7, 2016, the trial court granted summary judgment in favor of the IGC
Appellees as to the remaining state tort claims.
Discussion and Decision
[14] We review summary judgment using the same standard as the trial court:
summary judgment is appropriate only where the designated evidence shows
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).
All facts and reasonable inferences are construed in favor of the non-moving
party. City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where the
challenge to summary judgment raises questions of law, we review them de
novo. Rogers, 63 N.E.3d at 320.
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[15] Before we can address Donovan’s tort claims against the Hoosier Park
Appellees and the IGC Appellees, we must resolve Donovan’s contention that
he was “not properly evicted” from Hoosier Park, (Appellant’s Br. at 17), as
many of his tort claims are predicated on his assumption of this fact.
Specifically, Donovan claims there is a genuine issue of material fact as to
whether he was properly evicted from Hoosier Park and, therefore, a genuine
issue of material fact as to whether he was trespassing when he returned to the
casino on August 5, 2011.
Hoosier Park’s Eviction of Donovan
[16] “Gaming is a regulated industry.” Stulajter v. Harrah’s Indiana Corp., 808 N.E.2d
746, 749 (Ind. Ct. App. 2004). Our Indiana Legislature established Title 4,
Article 35 of the Indiana Code, which governs gambling games at racetracks, to
“maintain the public’s confidence and trust through (1) comprehensive law
enforcement supervision; and (2) the strict regulation of facilities, persons,
associations, and gambling games at racetracks[.]” Ind. Code § 4-35-3-4 (2007).
The Legislature granted the IGC the authority and duty to administer, regulate,
and enforce the system of gambling games at racetracks. See generally Ind. Code
§ 4-35-4-1 (2007). Within these powers is the IGC’s power to “eject or exclude
or authorize the ejection or exclusion of a person from a facility at which
gambling games are conducted.” Ind. Code § 4-35-4-9(a) (2007).
[17] The IGC’s rules and regulations regarding exclusion and eviction of persons
from casinos are codified at 68 Indiana Administrative Code Section 6-1-1 et
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seq. The IGC requires casino licensees to implement certain procedures
regarding eviction 7 of patrons. See 68 I.A.C.§ 6-2-1(a) (2007) (listing the specific
procedures casino licensees must implement). When a casino evicts a person, it
must provide the evicted person with the following:
(a) At the time of eviction, the casino licensee shall provide the
evicted person with a two-part form that has been approved
by the commission and shall advise the evicted person of, at a
minimum:
(1) The reason for the eviction.
(2) The earliest date the person may apply for readmission.
(3) The criteria that must be satisfied for readmission.
(4) The procedure that must be followed in order to apply
for readmission.
7
We note the parties’ briefs and case law on this topic use the terms “exclusion” and “eviction”
interchangeably, but the Indiana Administrative Code distinguishes between them. Thus, we briefly explain
the difference.
Pursuant to the Indiana Administrative Code, the IGC maintains authority to exclude a person from entering
any gaming area. See I.A.C. § 6-1-3 (2007) (listing reasons warranting exclusion of a person). If the IGC
excludes a person from entering gaming areas, then a casino licensee must evict that person from its gaming
area if the casino “knows or reasonably should know that the person is an excluded person.” I.A.C. § 6-1-
1(b) (2010).
However, a casino licensee may, in its own discretion, evict a person from its casino gambling operation—
regardless of whether the IGC has already excluded that person—for any lawful reason. I.A.C. § 6-1-1(d)
(2010). In that case, the casino licensee “may seek to have a person it has evicted from its casino gambling
operation placed on the [IGC’s] exclusion list.” Id. Stated differently, while the IGC maintains authority to
exclude persons from all casinos, casino licensees maintain authority to evict persons from only its own
casino gambling operations. The latter-described scenario—eviction—is the procedure Hoosier Park invoked
here.
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68 I.A.C. § 6-2-2(a) (2007).
[18] Hoosier Park sent Donovan the July 19 letter per the above requirements for
eviction of a patron. The letter clearly warned Donovan he would be
“considered a trespasser and subject to arrest” if he returned to the casino
during any period of his eviction. (Appellant’s App. Vol. II at 35). However,
Donovan argues Hoosier Park addressed him using the wrong middle initial,
failed to give him a reason under 68 I.A.C. § 6-2-2(a)(1) for his eviction, and
mailed him marketing materials after mailing the July 19 letter. Because of
these alleged irregularities on Hoosier Park’s part, Donovan claims there is a
question of material fact as to whether he was “properly evicted.” (Appellant’s
Br. at 17.) We are unpersuaded.
[19] If Hoosier Park, in evicting Donovan, was in violation of any of the IGC’s
administrative code provisions regarding eviction, Hoosier Park was
answerable to the IGC, not to Donovan. See Ind. Code § 4-35-4-2(a)(2) (“The
commission shall . . . Conduct all hearings concerning civil violations of this
article.”). The correct avenue, therefore, for Donovan to have challenged the
content of the July 19 eviction letter, was to petition the IGC for a hearing. See,
e.g., Stulajter, 808 N.E.2d at 749 (holding plaintiff could not bring a private right
of action against a casino for allegedly violating an IGC regulation regarding
the voluntary exclusion program, because “the duty to determine requirements
of and enforce the voluntary exclusion program rests with the Commission . . . .
Therefore, proper enforcement of IC 4-33-4-3 is through the Commission and
not a private cause of action.”). We thus agree with the trial court’s finding
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there was no genuine issue of material fact that Donavan was evicted from
Hoosier Park pursuant to 68 I.A.C. § 6-2-2.
Trespass
[20] “A person who, not having a contractual interest in the property . . . knowingly
or intentionally enters the real property of another person after having been
denied entry by the other person or that person’s agent . . . commits criminal
trespass, a Class A misdemeanor.” Ind. Code § 35-43-2-2(a)(1) (2009). A
person has been “denied entry” when the person has been notified of the
restriction by means of “personal communication, oral or written[.]” Ind. Code
§ 35-43-2-2(c)(1).
[21] We have already concluded the trial court properly found Donovan was evicted
from Hoosier Park. Hoosier Park denied Donovan entry to its premises in the
July 19 eviction letter. After having been denied entry, Donovan intentionally
returned to Hoosier Park on August 5, 2011. Thus, as a matter of law,
Donovan was trespassing. 8 See Lyles v. State, 970 N.E.2d 140, 143 (Ind. 2012)
(evidence was sufficient defendant committed criminal trespass where
defendant was neither an owner nor employee of bank, and bank manager had
8
Donovan does not dispute that he had no contractual interest in Hoosier Park. “A ‘contractual interest in
property’ is a right, title, or legal share of real property arising out of a binding agreement between two or
more parties.” Lyles v. State, 970 N.E.2d 140, 143 n.3 (Ind. 2012).
Court of Appeals of Indiana | Opinion 48A02-1608-PL-1704 | September 26, 2017 Page 12 of 22
asked defendant to leave bank premises, but defendant refused to leave bank
premises).
I. Claims against IGC Appellees
[22] Donovan argues the trial court erred in granting summary judgment for the
IGC Appellees on his claims of wrongful arrest, false imprisonment, abuse of
process, malicious prosecution, and battery.
Statutory Immunity
[23] The Indiana Tort Claims Act (“ITCA”) provides governmental entities, or
governmental employees acting within the scope of the employee’s
employment, immunity from liability for certain acts. Specifically,
[a] governmental entity or an employee acting within the scope
of the employee’s employment is not liable if a loss from . . . [t]he
adoption and enforcement of or failure to adopt or enforce . . . a
law (including rules and regulations) . . . unless the act of
enforcement constitutes false arrest or false imprisonment.
Tallman v. State, 13 N.E.3d 854, 857 (Ind. Ct. App. 2014) (quoting Ind. Code §
34-13-3-3(8)). “The purpose of immunity is to ensure that public employees can
exercise their independent judgment necessary to carry out their duties without
threat of harassment by litigation or threats of litigation over decisions made
within the scope of their employment.” Bushong v. Williamson, 790 N.E.2d 467,
472 (Ind. 2003). “Whether the ITCA imparts immunity to a governmental
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entity is a question of law for the court to decide.” Lee by & through Estes v.
Bartholomew Sch. Corp., 75 N.E.3d 518, 525 (Ind. Ct. App. 2017).
False Imprisonment and False Arrest
[24] As noted above, false arrest and false imprisonment “fall outside the perimeters
of the immunity conferred by the ITCA.” Miller v. City of Anderson, 777 N.E.2d
1100, 1104 (Ind. Ct. App. 2005), trans. denied. The tort of false imprisonment
occurs when there is an (1) unlawful (2) restraint (3) upon one’s freedom of
movement or the deprivation of one’s liberty (4) without consent. Ali v. Alliance
Home Health Care, LLC, 53 N.E.3d 420, 432 (Ind. Ct. App. 2016) (citing Miller,
777 N.E.2d at 1104-05).
[25] “[W]here a claim for false imprisonment stems from an alleged false arrest, ‘we
need not make a separate analysis for the former.’” Tallman v. State, 13 N.E.3d
at 857 (citing Row v. Holt, 864 N.E.2d 1011, 1016 (Ind. 2007)).
Where the plaintiff claims false arrest, she must demonstrate the
absence of probable cause to make the arrest. Probable cause for
arrest is demonstrated by facts and circumstances known to the
arresting officer which would warrant a person of reasonable
caution and prudence in believing that the accused had
committed or was committing a criminal offense. Where the
plaintiff in a false arrest action fails to demonstrate the absence of
probable case, or if the record as a whole reflects probable cause
for the arrest, then the plaintiff’s case must fail.
Ali, 53 N.E.3d at 432 (internal quotations omitted).
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[26] The undisputed evidence shows Agent Hosier and Agent Wilkinson were
responding to Hoosier Park security employees’ alert about Donovan when
they approached Donovan. The agents were relying on the information
Hoosier Park security staff conveyed to them regarding an evicted patron. The
facts known to the agents at the time they approached Donovan—Blevins’ and
Sollars’ indication that Donovan, an evicted person, was at the casino—was
enough to lead a reasonable person to believe Donovan was indeed criminally
trespassing. See supra ¶ 22. Thus, based on the information received from
Sollars and Blevins, the IGC agents had probable cause to arrest Donovan, and
their actions do not constitute false arrest or false imprisonment. See Miller, 777
N.E.2d at 1105 (based on facts known to officers at time of arrest, officers had
probable cause to arrest Miller, and thus their actions did not constitute false
arrest or false imprisonment). Because the IGC agents had probable cause to
arrest Donovan based on Donovan’s trespassing, we need not address
Donovan’s arguments the IGC agents lacked probable cause to arrest based on
disorderly conduct or resisting law enforcement. 9
9
In his Complaint, Donovan also claimed he was wrongfully arrested in violation of the Fourth and
Fourteenth Amendments to the United States Constitution. (Appellant’s App. Vol. II at 32.) We agree with
the trial court’s finding this claim was barred under 42 U.S.C.A. § 1983, as the State is not a “person,” and
“therefore, neither the State nor its officials when sued in their official capacity can be sued for money
damages under this section.” Benedetto v. Indiana Univ., 707 N.E.2d 1062, 1063 (Ind. Ct. App. 1999).
Donovan’s argument on appeal that the IGC Appellees failed to show they were acting as state officials has
no merit. The Indiana Gaming Commission is a “state office” created by statute under Title 4, “State Offices
and Administration.” See Ind. Code § 4-33-3-1 (1993). Furthermore, Donovan named Agent Hosier and
Agent Wilkinson in their official capacities when he filed this suit, raising a presumption that they were sued
in their official capacities. See Crawford v. City of Muncie, 655 N.E.2d 614, 620 (Ind. Ct. App. 1995) (“If a
plaintiff seeks to sue public officials in their personal capacities or in both their personal and official
capacities, the plaintiff should expressly say so in the complaint.”) (internal quotations omitted), reh’g denied,
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Remaining Claims
[27] Donovan’s remaining tort claims of abuse of process, malicious prosecution,
and battery against the IGC Appellees are barred by statutory immunity under
the ITCA.
[28] In arresting Donovan, Agent Hosier and Agent Wilkinson were acting within
the scope of their employment as defined by Ind. Code § 34-13-3-3(8). As IGC
agents, Hosier and Wilkinson are “vested with full police powers and duties[.]”
Ind. Code § 4-33-4.5-1(a) (2005). Specifically, gaming agents “may act as an
officer for the arrest of offenders who violate the laws of Indiana if the gaming
agent reasonably believes that a crime has been, is being, or is about to be
committed or attempted in the gaming agent’s presence.” See Ind. Code § 4-35-
2-6 (2007); Ind. Code § 4-33-4.5-1(c). Thus, to the extent the IGC agents’ acts
of arresting Donovan and filing of a probable cause affidavit for Donovan’s
arrest could satisfy the torts of malicious prosecution or abuse of process, these
claims are barred by the ITCA. See Katz-Crank v. Haskett, 843 F.3d 641, 651 (7th
Cir. 2016) (finding plaintiff’s claims against state officials of malicious
prosecution and abuse of process fell “comfortably within the state immunity
bar” of the ITCA), cert. denied; Butt v. McEvoy, 669 N.E.2d 1015, 1018 (Ind. Ct.
App. 1996) (police officer was acting in scope of employment in providing
information to sheriff’s office that led to judicial proceedings against plaintiff,
trans. denied. “A suit against a public official in his official capacity is simply a suit against the public entity
itself.” Id. (citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105 (1985)).
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and thus police officer was immune from liability under ITCA on claim for
malicious prosecution).
[29] Similarly, battery falls within the statutory immunity of ITCA. See Bushong,
790 N.E.2d at 473-74 (no genuine issue of material fact battery occurred in the
scope of employment where gym teacher of a school corporation, a government
employee, struck student after student kicked gym teacher in the buttocks, and
thus gym teacher was immune from liability under ITCA). Because the
undisputed evidence shows the IGC agents did not falsely imprison Donovan,
and Donovan’s abuse of process, malicious prosecution, and battery claims are
barred by the ITCA, we affirm the trial court’s summary judgment in favor of
the IGC Appellees.
II. Claims Against Hoosier Park Appellees
False Arrest and False Imprisonment
[30] The undisputed facts demonstrate IGC Agent Hosier arrested Donovan, not
Hoosier Park employees. Nevertheless, Donovan claims Blevins and Sollars
“proximately caused” IGC Agents Hosier and Wilkinson to falsely arrest and
falsely imprison Donovan when they alerted the IGC office of Donovan’s
presence at the casino, (Appellant’s App. at 18-19), and therefore, the Hoosier
Park Appellees are liable for false imprisonment. Because Donovan does not
argue Hoosier Park employees falsely imprisoned Donovan, but instead argues
the Hoosier Park employees proximately caused Donovan’s arrest, our finding
that the IGC Appellees did not commit false imprisonment is dispositive of this
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claim. See Conn v. Paul Harris Stores, Inc., 439 N.E.2d 195, 198-99 (Ind. Ct. App.
1989) (finding liability for false arrest will not be imposed on a defendant who
does nothing more than notify an officer when the defendant believes a crime
has been committed), reh’g denied. We therefore affirm the trial court’s
summary judgment on this claim.
Abuse of Process
[31] Donovan claims Hoosier Park employees
informed the IGC Officers that Donovan was trespassing even
though Donovan had not actually been evicted. Therefore, there
is a question of material fact as to whether this was done in an
attempt to merely make an example out of Donovan due to his
previous claims against casinos, or merely an attempt to stop
Donovan from gambling at their casino.
(Appellant’s Br. at 26-27.)
[32] An abuse of process claim requires a showing that a defendant had “(1) ulterior
purpose or motives; and (2) a willful act in the use of process not proper in the
regular conduct of a proceeding.” Watson v. Auto Advisors, Inc., 822 N.E.2d
1017, 1029 (Ind. Ct. App. 2005) (internal quotations omitted), trans. denied. “If
a defendant’s acts are procedurally and substantively proper under the
circumstances, then his intent is irrelevant.” Id. “A party may not be held
liable for abuse of process if the legal process has been used to accomplish an
outcome for which the process was designed to accomplish.” Id.Court of Appeals of Indiana | Opinion 48A02-1608-PL-1704 | September 26, 2017 Page 18 of 22
[33] Donovan cites no facts supporting a claim the Hoosier Park Appellees had a
purpose other than to remove Donovan, an evicted person, from the casino
premises. And we have already resolved that Hoosier Park properly “evicted”
Donovan for purposes of this cause. Thus, as Donovan was trespassing on
August 5, 2011, and Hoosier Park alerted the IGC agents to remove him from
the premises, the Hoosier Park Appellees’ actions were substantively and
procedurally proper, and accomplished the outcome the legal process was
designed to accomplish: to ensure Donovan would not return to Hoosier Park.
Donovan thus fails to show Hoosier Park Appellees committed abuse of
process. See Watson, 822 N.E.2d at 1029-30 (no abuse of process occurred
where defendant accomplished the outcome the legal process was designed to
accomplish).
Malicious Prosecution
[34] Donovan next claims malicious prosecution by Hoosier Park Appellees. To
establish a case for malicious prosecution, the plaintiff must prove “(1) the
defendant instituted or caused to be instituted an action against the plaintiff; (2)
the defendant acted maliciously in so doing; (3) the defendant had no probable
cause to institute the action; and (4) the original action was terminated in the
plaintiff’s favor.” Ali, 53 N.E.3d at 431.
[35] Here, the Hoosier Park Appellees did not institute or cause to be instituted the
criminal action against Donovan; the prosecutor did. Therefore, we affirm the
trial court’s grant of summary judgment in favor of Hoosier Park on Donovan’s
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malicious prosecution claim. See Bah v. Mac’s Convenience Stores, LLC, 37
N.E.3d 539, 547 (Ind. Ct. App. 2015) (where prosecutor, and not convenience
store or manager appellees, instituted or caused to be instituted a prosecution
against appellant, court affirmed summary judgment for appellees on
appellant’s malicious prosecution claim), trans. denied.
Battery
[36] Donovan claims in arresting him, the Hoosier Park security agents committed
battery against Donovan. An actor commits the tort of battery if “(a) he acts
intending to cause a harmful or offensive contact with the person of the other or
a third person, or an imminent apprehension of such a contact, and (b) a
harmful contact with the person of the other directly or indirectly results.”
Mullins v. Parkview Hosp. Inc., 865 N.E.2d 608, 610 (Ind. 2007) (citing
Restatement (Second) of Torts § 13 (1965)).
[37] Donovan contends the Hoosier Park Appellees failed to designate evidence
“that the people involved [in Donovan’s arrest] used reasonable force[,]” and
that “the designated evidence is clear Sollars and Blevins assisted the IGC
[agents] and committed battery against Donovan.” (Appellant’s Br. at 25.) We
disagree.
[38] First, the designated evidence included surveillance footage showing the entire
altercation between Donovan, the IGC agents, and the Hoosier Park security
employees. When Agent Hosier, Agent Wilkinson, Sollars, and Blevins began
following Donovan, Donovan continued to evade them and ignore Agent
Court of Appeals of Indiana | Opinion 48A02-1608-PL-1704 | September 26, 2017 Page 20 of 22
Hosier’s questioning. Agent Hosier eventually stepped in front of Donovan and
told him to stop, blocking Donovan from exiting the doors of the casino. When
Donovan became loud and would not engage with Agent Hosier civilly, Agent
Hosier informed Donovan he was being arrested for trespass and disorderly
conduct. Agent Hosier began to arrest Donovan but Donovan resisted. Agent
Wilkinson attempted to help stabilize Donovan so Agent Hosier could handcuff
him, but both agents were having trouble getting Donovan’s arms behind his
back. Blevins and Sollars then also aided in controlling Donovan so Donovan
could be handcuffed.
[39] Based on the designated evidence—the surveillance video—we agree with the
trial court’s conclusion the IGC agents used reasonable force in arresting
Donovan. See Ind. Code § 35-41-3-3(b) (1993) (“A law enforcement officer is
justified in using reasonable force if the officer reasonably believes that the force
is necessary to effect a lawful arrest.”); Ind. Code § 4-33-4.5-1(a) (2005) (“a
gaming agent is vested with full police powers and duties”). While the video
showed a physical altercation between Donovan and the IGC agents and
Hoosier Park security employees, it is also clear from the video the physical
nature of the altercation could have been avoided if Donovan had stopped
when Agent Hosier repeatedly asked him to stop. The extent of Sollars’ and
Blevins’ participation in the arrest was merely to aid the IGC agents in
controlling Donovan while Agent Hosier handcuffed Donovan. While
Donovan claims Blevins “trip[ped] him,” (Appellant’s App. at 25), the
surveillance video shows no evidence of this. Based on the surveillance video,
Court of Appeals of Indiana | Opinion 48A02-1608-PL-1704 | September 26, 2017 Page 21 of 22
there is no evidence the Hoosier Park employees acted with any intent to cause
harmful or offensive contact to Donovan. We therefore affirm the trial court’s
grant of summary judgment to the Hoosier Park Appellees on this claim.
Conclusion
[40] The designated evidence demonstrates there was no genuine issue of material
fact as to any of Donovan’s allegations against the Hoosier Park Appellees or
the IGC Appellees. As the law as applied to those facts entitles the Appellees to
summary judgment, we affirm the judgment of the trial court.
[41] Affirmed.
Najam, J., and Bailey, J., concur.
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