United States District Court, S.D. Indiana, Terre Haute Division
ORDER ON SUMMARY JUDGMENT
J. MCKINNEY, JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on Defendant Vigo County,
Indiana’s (“Vigo County’s”) Motion
for Summary Judgment. Dkt. 53. Vigo County moves for summary
judgment as to all claims alleged against it by Jane Doe in
her Amended Complaint. Dkt. 35. Doe alleges that Vigo County
is vicariously liable for the torts of its employee, David
Gray, after he assaulted and raped her while she was
performing community service under Gray’s supervision
at a park in Vigo County. Vigo County claims that it cannot
be held liable because Gray’s tortious behavior falls
outside the scope of his employment as a maintenance
specialist with Vigo County. For the reasons set forth below,
Vigo County’s Motion for Summary Judgment is
VIGO COUNTY PARKS DEPARTMENT
facts in this matter are not in dispute. Prior to 2009,
maintenance specialists with the Vigo County Parks Department
(“Parks Department”) were supervised by a foreman
who directly reported to the Assistant Superintendent. Dkt.
57-1 at 7. Beginning in 2010, the foremen position as a level
of management was eliminated due to budgetary concerns. Dkt.
57-1 at 8. Following the cuts, the Parks Department was
reorganized to provide a team of two maintenance specialists
at each of the primary locations in Vigo County. Dkt. 57-1 at
2009, Kara Kish was hired as the Assistant Superintendent of
the Parks Department. Dkt. 57-1 at 6. Kish was promoted to
Superintendent in 2013. Dkt. 57-2 at 5. The Parks Department
hired Adam Grossman as Assistant Superintendent to oversee
maintenance specialists and report to Kish. Dkt. 57-3 at 10.
Grossman stated that maintenance specialists are “given
a lot of autonomy.” Dkt. 57-3 at 9.
Gray began working for the Parks Department on July 1, 2001.
Dkt. 57-5 at 12. He was hired as a temporary employee and
subsequently received a full-time maintenance specialist
position. Dkt. 57-5 at 13; Dkt. 57-1 at 9.
fall of 2014, Gray worked with Mark Wiggins at Prairie Creek
Park. Dkt. 57-6 at 8, 11. When someone would come in to do
community service with the Parks Department, Wiggins was told
that Gray would supervise them. Dkt. 57-6 at 13. Wiggins let
Gray handle all community service workers. Dkt. 57-6 at 14.
Gray and Wiggins worked by themselves at the park a fair
amount of time and were provided a lot of autonomy. Dkt. 57-6
at 20; Dkt. 57-3 at 9.
2014, Doe was convicted of public intoxication in Vigo
County. Dkt. 57-7 at 17. The conviction resulted in probation
and the requirement that she perform thirty or forty hours of
community service. Dkt. 57-7 at 17. Doe chose to perform her
community service at the Parks Department. Dkt. 57-7 at
November 3, 2014, Doe, who brought her daughter with her,
went to perform community service for the Parks Department at
Prairie Creek Park. Dkt. 57-7 at 25, 29-30. Fearing that she
would fail to get her community service hours performed by
the date ordered by the court, Doe asked Gray if she could
give him fifty dollars to sign off on the rest of her hours.
Dkt. 57-7 at 30. Gray told her, “Keep your money. Why
don’t you go get some tequila and we’ll figure
something out.” Dkt. 57-7 at 31. Gray then gave her
money and told her to go to the liquor store. Dkt. 57-7 at
31. Doe purchased the tequila and returned to the park. Dkt.
57-7 at 37. Doe gave the tequila to Gray who procured two
glasses with ice and made a drink for himself; Doe also made
a drink. Dkt. 57-7 at 39-40.
making the drinks, Gray told Doe that they were going to
clear off some trails. Dkt. 57-7 at 42. Gray, Doe, and
Doe’s daughter then rode on an ATV vehicle to take
Doe’s daughter to a playground. Dkt. 57-5 at 42.
Doe’s daughter was dropped off at a playground and
given a walkie-talkie so that she could communicate with Doe
if necessary. Dkt. 57-7 at 43-45.
and Doe got back on the ATV and rode to the restrooms, which
were approximately four or five minutes away from the
playground. Dkt. 57-7 at 45-46. Gray told Doe that they
needed to first clean the restrooms before getting to the
trails. Dkt. 57- 7 at 46. Bedding and a blanket were on the
floor of the bathroom. Dkt. 57-7 at 47. After Doe entered the
restrooms, Gray locked the door behind them and began to kiss
and place his hands on Doe, who told him that she was not
comfortable with the fondling. Dkt. 57-7 at 47-48. Gray then
raped Doe in the bathroom. Dkt. 57-7 at 49-51. At one point
during the rape, Gray stated, “This is how we get your
community service taken care of.” Dkt. 57-7 at 50.
thereafter, Doe’s daughter used the walkie-talkie to
reach Doe. Dkt. 57-7 at 52. Gray, Doe, and Doe’s
daughter then cleaned trails for approximately thirty minutes
before Gray took Doe and her daughter back to Doe’s
car. Dkt. 57-7 at 53-54. Doe then took her daughter to her
boyfriend’s house so that she could go to the hospital.
Dkt. 57-7 at 57. Doe spoke with law enforcement officers
about the rape at the hospital. Dkt. 57-7 at 57-58.
November 6, 2014, the State of Indiana charged Gray with: (1)
Rape; (2) Criminal Confinement; and (3) Official Misconduct.
Dkt. 57-10. Gray pleaded guilty to Criminal Confinement and
Official Misconduct. Dkt. 57-11.
OTHER GRAY INCIDENTS
of their investigation into the rape, law enforcement spoke
with Grossman about Gray’s employment. Dkt. 57-3 at 31;
Dkt. 57-5, Ex. 6. Grossman informed the officers that Gray
had been written up for sexual harassment involving another
county employee and was also involved in an undocumented