Appeal from the Hendricks Superior Court. Lower Court Cause No. 32D04-1105-CT-63. The Honorable Mark A. Smith, Judge.
ATTORNEY FOR APPELLANT: Brent Welke, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES: Gregory F. Zoeller, Attorney General of Indiana; Kathy Bradley, Deputy Attorney General, Indianapolis, Indiana.
Pyle, Judge. Barnes, J., and May, J., concur.
Statement of the Case
[¶1] John Feldhake (" Feldhake" ) appeals the trial court's grant of summary judgment in favor of Edwin Buss (" Buss" ), Latoya Lane (" Lane" ), and Nathan Walters (" Walters" ), (collectively, " the Defendants" ) on his personal injury claim. On appeal, Feldhake claims that the trial court erred in granting summary judgment because the Defendants based their motion on defects in the complaint and failed to designate factual evidence in support of their motion. In addition, he claims that the trial court erred in considering the Defendants' motion for summary judgment while discovery was ongoing. Defendants argue that they are entitled to summary judgment because Feldhake did not comply with various requirements of the Indiana Tort Claims Act (" ITCA" ). We affirm the trial court's grant of summary judgment because Feldhake's complaint did not comply with the ITCA's pleading requirements to sue a government employee individually or its notice requirements.
[¶2] We affirm.
Whether the trial court erred in granting summary judgment in favor of the Defendants.
[¶3] The facts most favorable to Feldhake are that in May 2009, Feldhake was incarcerated at the Plainfield Re-entry Educational Facility, a Department of Correction (" DOC" ) facility. At that time, Buss was the commissioner of DOC, Lane was the interim superintendent of the facility, and Walters was a maintenance supervisor at the facility. On May 17, 2009, Feldhake was assigned to a crew that was painting a house at the facility owned by DOC.
[¶4] On May 20, 2009, Feldhake and three other inmates entered the bed of a pickup truck being driven by Walters so that they could go to the house. Once Feldhake was in the bed of the pickup truck, Walters started it " with a lurch" and accelerated " at an unreasonable rate of acceleration." (App. 13). Feldhake was thrown against the tailgate of the pickup truck. The tailgate opened, and Feldhake fell from the truck. He landed on his head and sustained head, neck, and back injuries.
[¶5] On May 17, 2011, Feldhake filed a complaint against the Defendants, individually and in their official capacities as employees of the DOC. Feldhake alleged that Walters's operation of the truck had caused his injuries, and that Lane had failed to comply with DOC procedures in reporting the accident. He did not file a notice of tort claim with the Attorney General. On December 2, 2011, the trial court issued a Trial Rule 41(E) order because Feldhake took no other action after filing his complaint. On February 14, 2012, Feldhake filed a motion for default judgment, and the Defendants filed a motion for an enlargement of ...