Abigail Elizabeth Freeman Jacks, a minor, by next friends Jennifer Jacks and William Scott Freeman, and Jennifer Jacks, and Jennifer Edwards v. Tipton Community School Corporation

FILED
Feb 14 2018, 6:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Laurie D. Johnson Alexander P. Pinegar
Alicia M. Adcock Kevin S. Smith
Boje, Benner, Becker, Markovich & Church Church Hittle & Antrim
Hixson, LLP Noblesville, Indiana
Noblesville, Indiana
James J. Shea, Sr.
Andrew S. Williams
Jeremy D. Lemon
Hunt Suedhoff Kalamaros, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Abigail Elizabeth Freeman February 14, 2018
Jacks, a minor, by next friends Court of Appeals Case No.
Jennifer Jacks and William Scott 80A02-1705-PL-923
Freeman, and Jennifer Jacks, Appeal from the Tipton Circuit
Appellants-Plaintiffs, Court
The Honorable Thomas R. Lett,
and Judge
Jennifer Edwards, Trial Court Cause No.
80C01-1512-PL-397
Appellant-Defendant,
v.
Tipton Community School
Corporation,
Appellee-Defendant.
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Barnes, Judge.
Case Summary
[1] In this interlocutory appeal, Jennifer Edwards and Abigail Elizabeth Freeman
Jacks (“Abigail”), a minor, by next friends, Jennifer Jacks and William Scott
Freeman, and Jennifer Jacks (collectively, “Jacks Family”), appeal the trial
court’s grant of summary judgment to the Tipton Community School
Corporation (“School”). We affirm.
Issues
[2] Edwards and the Jacks Family raise several issues, which we restate as:
I. whether the trial court properly denied the
Jacks Family’s motion to strike; and
II. whether the trial court properly granted
summary judgment to the School.
Facts
[3] In August 2013, the School awarded Edwards a four-year contract to transport
students on a school bus route in her own bus. Edwards had previously worked
as a school-employed bus driver from 2010 through May 2013 driving a bus
owned by a school corporation. In November 2014, Abigail was a thirteen-
year-old student and was riding home from school on a bus driven by Edwards.
Abigail was sitting near the rear of the bus when Edwards drove over a dip in
the road. Abigail was allegedly thrown up and into the seat in front of her
causing her to sustain a lacerated pancreas.
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[4] In December 2015, the Jacks Family filed a complaint against Edwards and the
School. The Jacks Family alleged negligence by Edwards for operating the
school bus “at an unreasonable rate of speed appropriate for the road
conditions” and “failing to adequately supervise children on the bus under her
care,” negligence by the School “by failing to provide safe school bus
transportation” and “failing to properly train and supervise Defendant
Edwards,” and a loss of services, expenses, and lost wages by Jennifer Jacks as
a result of Edwards’s and the School’s negligence. Appellants’ App. Vol. II pp.
17-18. In its answer, the School alleged in part that it was entitled to immunity
pursuant to the Indiana Tort Claims Act, Indiana Code Section 34-13-3-3.
[5] In October 2016, the School filed a motion for summary judgment. The School
argued in part that Edwards was an independent contractor, not a school
employee, and that, under the Indiana Tort Claims Act, it was immune from
liability for Edwards’s actions. The School also argued that it was entitled to
summary judgment on the direct liability negligence claim because: (1) it had
no duty to train or supervise Edwards; and (2) if it did have such a duty, the
undisputed material facts demonstrate that it did not breach that duty.
[6] Both Edwards and the Jacks Family filed responses to the motion for summary
judgment. The Jacks Family argued that genuine issues of material fact existed
regarding whether Edwards was an employee or independent contractor and
whether the School properly trained and supervised Edwards. They also
argued that the School could not avoid liability by delegating a nondelegable
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duty to an independent contractor. Edwards argued that she was an employee
of the School and that the School owed a duty of care to Abigail.
[7] The School then filed a reply brief and supplemental designation of evidence.
The Jacks Family filed a motion for leave to respond to the School’s reply,
which the trial court granted, and they also filed a motion to strike the School’s
reply. The trial court denied the Jacks Family’s motion to strike. After a
hearing, the trial court granted the School’s motion for summary judgment.
The trial court certified the order for interlocutory appeal, and this court
granted permission pursuant to Indiana Appellate Rule 14(B).
Analysis
I. Motion to Strike
[8] The Jacks Family argues that the trial court erred by denying their motion to
strike the School’s reply brief and supplemental designation. The trial court has
broad discretion in ruling on the admissibility of evidence. Price v. Freeland, 832
N.E.2d 1036, 1039 (Ind. Ct. App. 2005). This discretion extends to rulings on
motions to strike where a party argues that a filing fails to comply with the
summary judgment rules. Id.
[9] According to the Jacks Family, the School was not permitted to file a reply or
supplemental designation under Indiana Trial Rule 56, which governs summary
judgment proceedings. They also argue that the School did not request
permission to do so and did not include newly-discovered evidence in the
supplemental designation. Trial Rule 56 does not specifically address reply
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briefs. The Rule discusses the initial motion and responses to the initial
motion. However, it also provides: “The court may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories, or further
affidavits.” Ind. Trial Rule 56(E).
[10] In Spudich v. Northern Indiana Public Service Co., 745 N.E.2d 281, 285-87 (Ind. Ct.
App. 2001), trans. denied, we addressed a similar issue. There, NIPSCO filed a
motion for summary judgment, Spudich filed a response, and NIPSCO then
filed a reply brief with the trial court’s permission. Spudich filed a motion to
strike the reply, which the trial court denied. On appeal, Spudich argued that
Trial Rule 56 did not “specifically provide for the filing of reply briefs on
summary judgment” and that a local rule allowing reply briefs conflicted with
Trial Rule 56. Spudich, 745 N.E.2d at 286. We noted that Trial Rule 56
“neither expressly permits nor precludes such a reply brief.” Id. at 287. The
Rule does, however, “provide for affidavits submitted in support or in
opposition to summary judgment to be supplemented or opposed by
depositions, answers to interrogatories, and further affidavits.” Id. Thus, the
submission of additional evidence after the initial filings is contemplated by the
Rule. We noted that the “practice of filing a reply brief on summary judgment
was not unique” to that county and concluded that the local rule was not
“incompatible” with Rule 56. Id. Consequently, we concluded that the local
rule was not invalid. We also held that NIPSCO was allowed to include
additional designations of evidence with the reply brief and arguments not
made in its original motion. Id. at 288-89.
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[11] Relying on Spudich, we reached the same result in Auto-Owners Ins. Co. v. Benko,
964 N.E.2d 886, 889-90 (Ind. Ct. App. 2012), trans. denied. There, the insured
filed a motion for summary judgment, the insurer filed a response, and the
insured then supplemented her designation of evidence without obtaining
permission from the trial court. The insured filed a motion to strike the
supplemental designation, which the trial court denied. On appeal, we held,
“[i]n the absence of any language in Trial Rule 56 explicitly prohibiting reply
briefs and such designations and in light of these facts and circumstances, we
cannot say the trial court erred in denying [the insured’s] motion to strike.”
Benko, 964 N.E.2d at 890.
[12] Based on the language of Trial Rule 56, Spudich, and Benko, we find no error by
the trial court in allowing the School’s reply and supplemental designation.
Trial Rule 56 does not prohibit reply briefs and specifically allows the
designated evidence to be supplemented. The trial court did not abuse its
discretion when it denied the Jacks Family’s motion to strike.
II. Motion for Summary Judgment
[13] The Jacks Family and Edwards argue that the trial court erred by granting the
School’s motion for summary judgment. Summary judgment is appropriate
only when the moving party shows there are no genuine issues of material fact
for trial and the moving party is entitled to judgment as a matter of law.
Schoettmer v. Wright, 992 N.E.2d 702, 705 (Ind. 2013); see also T.R. 56(C). Once
that showing is made, the burden shifts to the non-moving party to rebut it.
Schoettmer, 992 N.E.2d at 705-06. When ruling on the motion, the trial court
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construes all evidence and resolves all doubts in favor of the non-moving party.
Id. at 706. We review the trial court’s grant of summary judgment de novo, and
we take “care to ensure that no party is denied his [or her] day in court.” Id.
A. Immunity for Edwards’s Alleged Negligence
[14] In its motion for summary judgment, the School argued that it was immune
from liability for Edwards’s negligence. “Government entities and their
employees are subject to liability for torts committed by them, unless one of the
[Indiana Tort Claims Act “ITCA”)] exceptions provides immunity.” Indiana
Dep’t of Transp. v. Sadler, 33 N.E.3d 1187, 1191 (Ind. Ct. App. 2015). “Whether
a government entity is immune from liability is a question of law, which we
review de novo.” Id. “Because the ITCA is in derogation of the common law,
we construe it narrowly against the grant of immunity.” Id. “The party seeking
immunity has the burden of establishing that its conduct falls within one of the
exceptions provided by the ITCA.” Id.
[15] The ITCA provides that “[a] governmental entity or an employee acting within
the scope of the employee’s employment is not liable if a loss results from . . .
[t]he act or omission of anyone other than the governmental entity or the
governmental entity’s employee.” Ind. Code § 34-13-3-3(10). This subsection’s
immunity “applies in ‘actions seeking to impose vicarious liability by reason of
conduct of third parties’ other than governmental employees acting within the
scope of their employment.” King v. Ne. Sec., Inc., 790 N.E.2d 474, 481 (Ind.
2003) (quoting Hinshaw v. Bd. of Comm’rs of Jay County, 611 N.E.2d 637, 640-41
(Ind. 1993)). For purposes of the ITCA, an “employee” is “a person presently
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or formerly acting on behalf of a governmental entity, whether temporarily or
permanently or with or without compensation . . . .” I.C. § 34-6-2-38(a).
However, the term does not include “an independent contractor.” I.C. § 34-6-
2-38(b)(1).
[16] The General Assembly has enacted a detailed statutory scheme regarding
school transportation. See Indiana Code Article 20-27. Indiana Code Section
20-27-5-2(a) provides that “[t]he governing body of a school corporation may
provide transportation for students to and from school.” Cf. Hoagland v.
Franklin Twp. Cmty. Sch. Corp., 27 N.E.3d 737, 738 (Ind. 2015) (finding no
constitutional requirement for school corporations to provide transportation to
and from school). In this statutory scheme, the General Assembly
differentiated between “employment contracts” and “transportation contracts”
for student bus transportation. An “employment contract” is “a contract: (1)
between: (A) a school corporation that owns all necessary school bus
equipment; and (B) a school bus driver; and (2) that provides that the school
bus driver is employed in the same manner as other noninstructional personnel
are employed by the school corporation.” I.C. § 20-27-2-4. On the other hand,
a “transportation contract” is “a contract between a school corporation and a
school bus driver in which the school bus driver promises to provide, in
addition to driving services, a school bus, school bus chassis, or school bus
body.” I.C. § 20-27-2-12. Here, Edwards had a transportation contract with
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the School.1 Although school bus drivers with an employment contract are
employed in the same manner as other noninstructional personnel, school bus
drivers with a transportation contract are not employed in this manner.
Compensation for school bus drivers with a transportation contract is
determined and fixed by the contract on a per diem basis for the
number of days on which:
(1) the calendar of the school corporation provides that
students are to attend school;
(2) the driver is required by the school corporation to operate
the bus on school related activities; and
(3) inservice training is required by statute or authorized by
the school corporation, including the safety meeting
workshops required under section 9 of this chapter.
I.C. § 20-27-8-7. Additionally, school bus drivers with a transportation contract
must provide their own liability insurance, whereas the school corporation
insures school bus drivers with employment contracts. I.C. § 20-27-5-4;
Appellants’ App. Vol. II p. 112.
1
The School notes that both Indiana Code Section 20-27-5-5(a) and Indiana Code Section 20-27-5-7 provide
that such transportation contracts are entered into under Indiana Code Article 5-22. That chapter governs
public purchasing, and it does not apply to an “employment relationship between a governmental body and
an employee of the governmental body.” I.C. § 5-22-1-3(4). However, at the time Edwards entered into the
transportation contract with the School in 2013, those statutes did not contain the language referencing
Indiana Code Article 5-22. Those statutes were amended in 2015 to add that language. See P.L. 233-2015, §
185 (eff. July 1, 2015); P.L. 233-2015, § 187 (eff. July 1, 2015). Consequently, we do not find the references
to Indiana Code Section 5-22-1-3 pertinent here.
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[17] Based on this statutory scheme, the School argued that Edwards was an
independent contractor, not an employee of the School. Consequently, the
School would be immune from liability for Edwards’s negligence under the
ITCA. Edwards and the Jacks Family argue that we must apply the common
law ten-factor test to determine whether Edwards was an independent
contractor or an employee of the School. The ten factors include the following:
(a) the extent of control which, by the agreement, the master may
exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the
employer;
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(i) whether or not the parties believe they are creating the relation
of master and servant; and
(j) whether the principal is or is not in business.
Mortg. Consultants, Inc. v. Mahaney, 655 N.E.2d 493, 495-96 (Ind. 1995). The
School contends the statutory scheme makes it clear that Edwards was an
independent contractor, not an employee, and we “need not, and indeed should
not, look to common law to make that determination.” Appellee’s Br. p. 25.
[18] “‘An abrogation of the common law will be implied (1) where a statute is
enacted which undertakes to cover the entire subject treated and was clearly
designed as a substitute for the common law; or, (2) where the two laws are so
repugnant that both in reason may not stand.’” Caesars Riverboat Casino, LLC v.
Kephart, 934 N.E.2d 1120, 1123 (Ind. 2010) (quoting Irvine v. Rare Feline
Breeding Ctr., Inc., 685 N.E.2d 120, 123 (Ind. Ct. App. 1997), trans. denied). The
General Assembly’s comprehensive statutory scheme regarding school bus
transportation clearly differentiates between “employment contracts” and
“transportation contracts.” The statutory scheme makes it clear that drivers
under transportation contracts are not employees of the school corporation;
rather, they are independent contractors. Given the clear statutory language,
we decline to apply the ten-factor common law test to differentiate between
employees and independent contractors. See Kosarko v. Padula, 979 N.E.2d 144,
149 (Ind. 2012) (holding that “the comprehensive nature of the TPIS and the
codification of two common law rules convince us that the legislature intended
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the statute to be the exclusive source governing the award of prejudgment
interest in cases falling within its ambit”). It is clear here that Edwards was an
independent contractor. There are no genuine issues of material fact on this
issue.
[19] Despite our conclusion that Edwards was an independent contractor and, thus,
the School was entitled to immunity for Edwards’s alleged negligence under the
ITCA, the Jacks Family argues that the School owed a non-delegable duty to
the students under its care. They rely on Shand Mining, Inc. v. Clay County Board
of Commissioners, 671 N.E.2d 477, 481 (Ind. Ct. App. 1996), trans. denied, and
City of Vincennes v. Reuhl, 672 N.E.2d 495, 497-98 (Ind. Ct. App. 1996), trans.
denied, which held that, despite the ITCA’s provisions, a governmental entity
could be liable for an independent contractor’s actions based on a non-delegable
duty analysis.
[20] We rejected this argument in Bartholomew Cty. v. Johnson, 995 N.E.2d 666 (Ind.
Ct. App. 2013). There, we noted:
Generally, a principal who delegates a duty to an independent
contractor is not liable for the negligence of that independent
contractor in performing the duty. Bagley v. Insight
Communications Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995).
However, an exception to this general rule exists “where the
principal is by law or contract charged with performing the
specific duty.” Id. Duties that are imposed by law or contract
are considered non-delegable because they are deemed so
important to the community that the principal should not be
permitted to transfer these duties to another. Id. at 587. As a
result, although a principal may transfer the responsibility for
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performing a duty to an independent contractor, the principal
remains liable if the duty is negligently performed.
Johnson, 995 N.E.2d at 675. However, we also noted:
Immunity assumes negligence but denies liability. Thus, the
issues of duty, breach and causation are not before the court in
deciding whether the government entity is immune. If the court
finds the government is not immune, the case may yet be decided
on the basis of failure of any element of negligence. This should
not be confused with the threshold determination of immunity.
Id. at 672 (citing Peavler v. Bd. of Comm’rs of Monroe Cnty., 528 N.E.2d 40, 46-47
(Ind. 1988)).
[21] Relying on our supreme court’s opinion in Hinshaw v. Board of Commissioners of
Jay County, 611 N.E.2d 637 (Ind. 1993), and rejecting the approach taken in
Shand Mining and Reuhl, we concluded:
[W]e find it telling that neither Shand Mining nor Reuhl mentions
Hinshaw and that Indiana Code Section 34-13-3-3(10) contains no
exceptions to its straightforward grant of immunity. Although
the Hinshaw court was not faced with a situation involving an
independent contractor and did not use the phrase “non-
delegable duty,” that concept was at the heart of its discussion of
vicarious liability. . . .
The clear import of Hinshaw’s vicarious liability analysis is that
Indiana Code Section 34-13-3-3(10) entitles a governmental
entity to immunity from liability for a loss resulting from the acts
or omissions of an independent contractor; that liability would
arise only if the independent contractor had performed a non-
delegable duty. Indiana Code Section 34-13-3-3(10) would be
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useless in situations involving an independent contractor if it did
not apply to non-delegable duties, and we “presume that the
legislature did not enact a useless provision.” Hinshaw, 611
N.E.2d at 638. To the extent that Shand Mining and Reuhl
conflict with Hinshaw on this point, we respectfully disagree with
those cases. If Hinshaw is to be abrogated, it should be done by
our supreme court. Consequently, even assuming that a non-
delegable duty exists in this case, we conclude that the trial court
erred in denying the County’s summary judgment motion as to
its immunity from liability for any of CBE’s acts or omissions
and therefore reverse as to that issue.
Johnson, 995 N.E.2d at 678-79 (footnotes omitted) (internal citation omitted).
Consequently, we concluded that, where a governmental entity has immunity
from the acts or omissions of an independent contractor, the non-delegable duty
analysis is inapplicable.2 We find Johnson persuasive here and, likewise,
conclude that the non-delegable duty argument fails.3 The trial court properly
granted the School’s motion for summary judgment regarding the Jacks
Family’s claim regarding Edwards’s alleged negligence.
2
The Jacks Family also relies upon Seiwert v. Spencer-Owen Comm. Sch. Corp., 497 F. Supp. 2d 942, 956 (S.D.
Ind. 2007), which denied a school’s motion for summary judgment regarding a claim of negligent supervision
of a bus driver. Relying on Shand Mining, the court concluded that, even if the bus driver was an independent
contractor, the school could still be liable under a non-delegable duty analysis. However, we have concluded
that Shand Mining is unpersuasive here.
3
The Jacks Family also argues that it believed Edwards to be an employee of the School rather than an
independent contractor. They cite no authority, however, that their belief concerning the relationship
between the School and Edwards was controlling. Consequently, this argument is waived for failure to make
a cogent argument. See Ind. Appellate Rule 46(A)(8)(a).
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B. Liability for School’s Alleged Negligence
[22] The Jacks Family and Edwards also alleged that the School was negligent for
failing to properly train and supervise Edwards. We noted in Johnson that a
governmental entity was not entitled to immunity if the loss “results from its
own negligence. . . .” Johnson, 995 N.E.2d at 679. This argument concerns the
School’s alleged direct negligence.
[23] Prevailing on a negligence claim requires fulfillment of three elements: 1) duty
owed to plaintiff by the defendant; 2) breach of duty by allowing conduct to fall
below the applicable standard of care; and 3) compensable injury proximately
caused by defendant’s breach of duty. Ryan v. TCI Architects/Engineers/
Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). In the School’s motion for
summary judgment, it argued that it did not owe a duty to supervise or train
Edwards. The School also argued that, even if it had duties to train or supervise
Edwards, it did not breach its duties. We need not address the duty argument
because, even if the School had a duty to supervise and train Edwards, there is
no genuine issue of material fact demonstrating that the School breached its
duty.
[24] In its motion for summary judgment, the School designated evidence that
Edwards had obtained her CDL and had taken the annual safety course
administered by the Indiana State Police; that Edwards’s CDL had never been
revoked or suspended, that Edwards had never been cited by the School for
misconduct or received any verbal or written warnings regarding her
performance; that the assistant superintendent had never considered
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disciplinary action against Edwards; that no one had ever brought concerns
regarding Edwards’s driving to the assistant superintendent’s attention; that the
assistant superintendent had never received any complaints from students or
parents regarding Edwards’s ability as a bus driver; and that the assistant
superintendent never had a reason to question Edwards’s abilities as a bus
driver. Consequently, the School argued that the plaintiffs could not “point to
any evidence establishing a genuine issue of material fact on whether the School
breached such a duty.” Appellants’ App. Vol. II pp. 31-32.
[25] In response, the Jacks Family designated evidence that the School had failed to
maintain certain records regarding the bus drivers and, thus, failed to properly
supervise its drivers. They argue on appeal that genuine issues of material fact
exist regarding whether the School “maintained accurate records of its drivers
and busses, including their CDL licenses, their physical exams, inspection
records for driver owned buses, verification of insurance coverage, verification
that drivers have completed evacuation reports, and title records reflecting
ownership of driver owned buses.” Jacks Family Appellant’s Br. p. 41. They
also argue that the School failed to keep a record of whether Edwards attended
a meeting at the beginning of the school year to review the Transportation
Handbook and bus transportation policies and, thus, failed to properly train
Edwards.
[26] Edwards argued that the School failed to demonstrate “what training it
specifically provided to Ms. Edwards” and failed to demonstrate “how it
properly supervised Ms. Edwards.” Appellants’ App. Vol. III p. 148. On
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appeal, Edwards argues that the School must “affirmatively negate the claims
that it negligently trained or supervised Edwards . . . .” Edwards’s Appellant’s
Br. p. 29.
[27] In response, the School argued that whether it kept records regarding Edwards’s
training was irrelevant. The designated evidence showed that Edwards
completed all training required by the State of Indiana, that the School verified
that Edwards completed the training, and that the School did not maintain
separate copies of the records because “the State keeps these records on-line and
[the assistant superintendent] can access those records anytime he wishes,
making it unnecessarily redundant for the School to keep its own copies of such
records.” Appellants’ App. Vol. IV p. 2. Further, regarding the School’s
supervision of Edwards, the School designated evidence that it annually
evaluated her, had never received any complaints regarding her performance,
and never received any information that her performance was inadequate.
Consequently, the School argued that, if it had a duty to supervise or train
Edwards, the undisputed evidence demonstrated that it did so. According to
the School, it demonstrated “the affirmative steps it took to annually review
Edwards’s performance under her contract and to confirm Edwards had
satisfied the myriad of state requirements put in place by the General Assembly
to insure bus drivers are adequately trained in proper safety and that their buses
are safe to operate on Indiana’s roads.” Id. at 5.
[28] In support of their arguments on appeal, the Jacks Family and Edwards rely on
Simpson v. OP Property Management, LLC, 939 N.E.2d 1098 (Ind. Ct. App. 2010).
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In Simpson, a driver was injured when a school bus collided with her vehicle.
She filed a complaint against the school bus driver, the school corporation, and
others. The school bus driver and the school corporation were granted
summary judgment by the trial court, and this court reversed on appeal. One of
the allegations in the driver’s complaint was that the school was negligent “in
failing to properly hire school bus drivers” and “in failing to properly train and
teach school bus drivers proper procedures for preventing accidents.” Simpson,
939 N.E.2d at 1102. This court concluded, in part, that a genuine issue of
material fact existed regarding whether the school bus driver’s conduct was
negligent and, “because we cannot say how, if at all, [the school bus driver’s]
conduct was negligent, we also cannot rule out the possibility that the School
District was negligent in training and hiring him.” Id. at 1105.
[29] Simpson made no discussion of evidence designated in the case, and we do not
find Simpson persuasive here. In summary judgment proceedings, the initial
burden is on the movant—the School—to demonstrate the absence of any
genuine issue of material fact. Arthur v. MacAllister Mach. Co., 83 N.E.3d 783,
786 (Ind. Ct. App. 2017). The burden then shifted to the non-movant—the
Jacks Family and Edwards—to come forward with contrary evidence showing
an issue for the trier of fact. Id. Here, the School designated evidence that
Edwards received the required training, that it annually evaluated her
performance, and that it had never received any complaints about her
performance. The burden then shifted to the Jacks Family and Edwards to
come forward with contrary evidence showing a genuine issue of material fact.
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They responded only with evidence that the School failed to keep certain
records. The School responded by designating evidence that the records were
maintained online by the State and that it was unnecessary for it to retain
physical copies of the records. The Jacks Family and Edwards simply failed to
designate any relevant, material evidence that the School failed to properly train
or supervise Edwards. We conclude that there is no evidence designated
showing a genuine issue of material fact that the School failed to properly train
or supervise Edwards. The trial court properly granted summary judgment to
the School on this claim.
Conclusion
[30] The trial court properly denied the Jacks Family’s motion to strike and properly
granted the School’s motion for summary judgment. We affirm.
[31] Affirmed.
May, J., and Altice, J., concur.
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