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Weikart v. Whitko Community School Corporation

Court of Appeals of Indiana

October 17, 2019

Courtney Weikart, Ruth Weikart, and Kevin Weikart, Appellants-Plaintiffs,
v.
Whitko Community School Corporation and Town of South Whitley, Indiana, Appellees-Defendants

          Appeal from the Whitley Circuit Court The Honorable Matthew J. Rentschler, Judge Trial Court Cause No. 92C01-1901-CT-8

          Attorney for Appellants David C. Kolbe

          Attorney for Appellee Whitko Community School Corporation David A. Izzo

          Attorney for Appellee Town of South Whitley, Indiana Robert T. Keen, Jr., Barrett McNagny LLP

          BAKER, JUDGE.

         [¶1] Courtney, Ruth, and Kevin Weikart filed a lawsuit against the Whitko Community School Corporation (the School) and the Town of South Whitley, Indiana (the Town), after a school resource officer allegedly failed to report Courtney's allegation that she had twice been gang raped. The Appellees filed a motion to dismiss for failure to state a claim, which the trial court granted, finding as a matter of law that there is no civil cause of action based upon a failure to report. The Weikarts appeal, arguing that their complaint makes a prima facie case for breach of a special duty by a police officer. Finding no error, we affirm.

         Facts

         [¶2] According to the Weikarts' complaint, in 2017, Matthew Gilbert was employed by the Town as a police officer and by the School as a school resource officer. Courtney was a student at the School, and Kevin and Ruth are her parents. In 2017, Courtney "was twice gang raped and reported each event to Officer Gilbert." Appellants' App. Vol. II p. 8. Officer Gilbert told Courtney and Ruth that he had notified the Kosciusko and Whitley County Sheriff's Departments about the alleged assaults and was "working on it." Id. But in fact, Officer Gilbert did not report the alleged assaults to the Sheriff's Departments.

         [¶3] At some point, Officer Gilbert's failure to report the alleged assaults was discovered and he was charged with Class B misdemeanor failure to make a report.[1] Regional media reported on the criminal charge, [2] and as a result, the Weikarts "were subject to public disclosure of the events and suffered great emotional stress." Id. Courtney, in particular, has suffered nightmares, emotional trauma, fear, anger, and post-traumatic stress disorder, and has required medication and psychiatric therapy as a result.

         [¶4] On January 7, 2019, the Weikarts sued the Appellees. In addition to the above-described facts, the complaint also contains the following allegation: "Officer Gilbert obtained information from [Courtney] with regard to drug activity. The public exposure of the gang rape[s] also resulted in the likelihood of exposure of the information she provided to Officer Gilbert regarding drug activity, and the persons there engaged, which has potentially placed her well being in danger and greatly compounded her emotional trauma and stress." Id. at 8-9. With regard to the legal claim, the complaint alleges that "Officer Gilbert was carrying out his employer-conferred duties, which he willfully abused such that Defendants are liable pursuant to the doctrine of respondeat superior." Id. at 9.

         [¶5] On March 26, 2019, the Town filed a Trial Rule 12(B)(6) motion to dismiss the complaint; the School later joined the motion. On May 1, 2019, the trial court granted the motion to dismiss. In relevant part, it found as follows:

1. Plaintiffs' claim is predicated on a police officer's failure to report events allegedly relayed to him by the then-minor-child Plaintiff. Plaintiffs seek to have Officer Gilbert's employers held responsible for ensuing damage via the legal doctrine of respondent [sic] superior.
2. Indiana's caselaw consistently holds that there is no civil cause of action based upon this failure to report. This Court is bound to follow precedent.
4. Here, Plaintiffs claim in their Response that their action is one for "failure to execute law enforcement duties." The attempt to distinguish their case as something more ...

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