Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 1 of 13

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS

Craig R. Karpe

Karpe Litigation Group

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Robert T. Keen, Jr.

William A. Ramsey

Barrett McNagny LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Sarah Nickolson, et al.,

Appellants-Plaintiffs,

v.

Tammie Freed,

Appellee-Defendant.

August 31, 2020

Court of Appeals Case No.

20A-CT-1046

Appeal from the DeKalb Superior 

Court

The Honorable Kevin P. Wallace, 

Judge

Trial Court Cause No.

17D01-1705-CT-15

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 2 of 13

Case Summary

[1] A vehicle driven by Mataya Nickolson (“Mataya”) collided with a public 

school bus driven by Tammy Freed (“Freed”). Mataya and her parents, Sarah 

Nickolson and Terry Nickolson (at times collectively referred to as “the 

Nickolsons”), brought a negligence claim against Freed in her individual 

capacity. The trial court granted Freed summary judgment on immunity 

grounds and the Nickolsons now appeal. They present the sole restated and 

consolidated issue of whether summary judgment was improvidently granted. 

We affirm.

Facts and Procedural History

[2] In 2016, Freed was employed by Hamilton Community Schools in Dekalb 

County as a school bus driver. Freed was paid on a per diem basis. Her 

primary duty was to transport students, but she had incidental duties such as 

participating in safety training, cleaning her bus, and presenting the bus for 

mandatory State of Indiana inspections. Freed’s route began within two miles 

of her residence, and she was authorized to take the bus home.

[3] On May 11, 2016, Freed’s supervisor, John Dutton (“Dutton”), instructed her 

to drive her bus, in a clean condition, to an inspection site. Freed completed 

her morning route, and briefly stopped by her residence where she checked the 

condition of the bus and used her garage bathroom. Freed, driving the bus,

exited her driveway onto County Road 71 at approximately 7:45 a.m. 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 3 of 13

[4] When Freed was “partially into the road with the front of the bus,” she saw a 

vehicle approaching. (Appellee App. Vol. I, pg. 64.) Freed moved her bus into 

her lane “as far as [she] could” but then “felt the impact.” (Id. at 65.) Mataya’s 

vehicle struck the rear of the bus, at a speed estimated by an accident 

reconstructionist to be sixty-nine miles per hour. Mataya was injured and lacks 

any recollection of the accident details.

[5] On May 5, 2017, the Nickolsons filed a complaint against Freed, individually,

alleging that she had negligently operated the bus and caused injury to Mataya. 

The Nickolsons made no allegation that Freed had been acting outside the 

scope of her employment and did not include the school corporation as a 

defendant. Freed filed her answer and asserted as an affirmative defense that 

she had immunity afforded a governmental employee pursuant to Indiana Code 

Section 34-13-3-5 of the Indiana Tort Claims Act (“ITCA”). Freed averred that 

she had been acting within the scope of her employment with Hamilton 

Community Schools at the time of the collision.

[6] On December 12, 2017, Freed filed a motion for summary judgment, which the 

trial court denied. Freed then unsuccessfully pursued an interlocutory appeal. 

On March 6, 2020, Freed again requested summary judgment in her favor, 

directing the trial court’s attention to a recent Indiana Supreme Court decision

addressing government employee immunity.

1

 On April 16, 2020, the trial court 

1

See Burton v. Benner, 140 N.E.3d 848 (Ind. 2020).
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 4 of 13

granted Freed summary judgment upon the Nickolsons’ negligence claim. The 

Nickolsons appeal. 

Discussion and Decision

Standard of Review

[7] “The purpose of summary judgment is to terminate litigation about which there 

can be no factual dispute and which may be determined as a matter of law.” 

Bd. of Sch. Comm’rs of City of Indianapolis v. Pettigrew, 851 N.E.2d 326, 330 (Ind. 

Ct. App. 2006). We review the trial court’s grant of summary judgment under a 

well-settled standard:

The party moving for summary judgment has the burden of 

making a prima facie showing that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as 

a matter of law. Reed v. Reed, 980 N.E.2d 277, 285 (Ind. 2012). 

Once these two requirements are met by the moving party, the 

burden then shifts to the non-moving party to show the existence 

of a genuine issue by setting forth specifically designated facts. 

Id. Any doubt as to any facts or inferences to be drawn 

therefrom must be resolved in favor of the non-moving party. Id. 

Summary judgment should be granted only if the evidence 

sanctioned by Indiana Trial Rule 56(C) shows there is no genuine 

issue of material fact and that the moving party deserves 

judgment as a matter of law. Freidline v. Shelby Ins. Co., 774 

N.E.3d 37, 39 (Ind. 2002).

Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 5 of 13

Analysis

[8] The Nickolsons argue that the trial court misconstrued the law and Freed is 

subject to personal liability because of the “coming and going [to work] rule.” 

Appellant’s Brief at 14. “The common law rule in this state is that travel to and 

from work is not considered activity within the scope of employment so as to 

hold the employer liable for injury caused by an employee’s negligence.”

Dillman v. Great Dane Trailers, Inc., 649 N.E.2d 665, 667 (Ind. Ct. App. 1995). 

The Nickolsons describe Freed’s activities on the morning of the collision as her 

driving the morning route, going home to take a break, and then leaving for 

work.

[9] When deposed, Freed testified that, with employer permission, she typically

drove her bus home between morning and afternoon routes, and again after 

completing the afternoon route. She testified that, on the day of the accident in 

particular, she drove the bus back home, looked underneath it to check for mud 

and determine if it needed additional cleaning, decided no further cleaning was 

necessary, took a bathroom break, and then started driving to the bus inspection 

site. Dutton was also deposed, and he confirmed that Freed had been 

instructed to bring the bus, in a clean condition, in for an inspection on that 

day. He testified that he had not specifically instructed her to clean the bus at 

her home, but “it made sense to me that she do that, since it’s right on her way 

to, almost to [the town of] Butler.” (App. Vol. II, pg. 115.) He also explained 

“they took their buses home anyway” because “their routes start right where 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 6 of 13

they live.” (Id.) The school corporation maintained a cleaning area but not 

garage facilities for its buses.

[10] It is undisputed that Freed had been assigned the express duty of driving the bus 

to an inspection site. She was performing this express duty at the time of the 

accident. Because Freed was required to make the bus available for inspection,

she was not simply “on her way” to work. The uncontroverted facts do not fit 

within the “coming and going” rule and, moreover, a plaintiff is limited in 

bringing suit against a government employee by certain provisions of the ITCA. 

The common law rule lacks application here. 

[11] The ITCA, Indiana Code section 34–13–3–1 et. Seq., governs lawsuits against 

political subdivisions and their employees. “Among other things the statute 

provides substantial immunity for conduct within the scope of the employee’s 

employment.” Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003). 

Immunity assumes negligence but then denies liability. Id.

[12] In relevant part, Indiana Code Section 34-13-3-5 provides:

(a) Civil actions relating to acts taken by a board, a committee, a 

commission, an authority, or another instrumentality of a 

governmental entity may be brought only against the board, 

the committee, the commission, the authority, or the other 

instrumentality of a governmental entity. A member of a 

board, a committee, a commission, an authority, or another 

instrumentality of a governmental entity may not be named as 

a party in a civil suit that concerns the acts taken by a board, a 

committee, a commission, an authority, or another 

instrumentality of a governmental entity where the member 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 7 of 13

was acting within the scope of the member’s employment. 

For the purposes of this subsection, a member of a board, a 

committee, a commission, an authority, or another 

instrumentality of a governmental entity is acting within the 

scope of the member’s employment when the member acts as 

a member of the board, committee, commission, authority, or 

other instrumentality.

(b) A judgment rendered with respect to or a settlement made by 

a governmental entity bars an action by the claimant against 

an employee, including a member of a board, a committee, a 

commission, an authority, or another instrumentality of a 

governmental entity, whose conduct gave rise to the claim 

resulting in that judgment or settlement. A lawsuit alleging 

that an employee acted within the scope of the employee’s 

employment bars an action by the claimant against the

employee personally. However, if the governmental entity 

answers that the employee acted outside the scope of the 

employee’s employment, the plaintiff may amend the 

complaint and sue the employee personally. An amendment 

to the complaint by the plaintiff under this subsection must be 

filed not later than one hundred eighty (180) days from the 

date the answer was filed and may be filed notwithstanding 

the fact that the statute of limitations has run.

(c) A lawsuit filed against an employee personally must allege 

that an act or omission of the employee that causes a loss is:

(1) criminal;

(2) clearly outside the scope of the employee’s employment;

(3) malicious;
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 8 of 13

(4) willful and wanton; or

(5) calculated to benefit the employee personally.

The complaint must contain a reasonable factual basis supporting 

the allegations.

[13] In finding Freed immune from a personal lawsuit and granting her summary 

judgment, the trial court relied upon Burton, supra. Like Freed, the defendant in 

Burton raised the affirmative defense of government employee immunity for 

conduct not “clearly outside the scope of the employee’s employment.” I.C. § 

34-13-3-5(c)(2). In Burton, the Indiana Supreme Court recognized that 

“[c]ertain negligent acts or omissions on the part of a government employee 

have the potential to remove the shield of respondeat superior and expose the 

employee to personal liability.” 140 N.E.3d at 849. One of the “handful of 

well-delineated pathways to accomplish this task” is to show that the 

employee’s act or omission was “clearly outside the scope of the employee’s 

employment.” Id. at 850 (citing I.C. § 34-13-3-5(c)).

[14] The plaintiff Bryce Burton attempted to sue Indiana State Trooper Martin 

Benner (“Trooper Benner”) in his personal capacity after the two were involved 

in an accident in rural Benton County. See id. At the time of the accident, 

Trooper Benner was off duty and headed to his son’s ballgame but was 

operating his state issued police commission as allowed under State Police 

policy. See id. Arguing that he was acting within the scope of his employment 

at the time of the accident, Benner sought summary judgment on whether he 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 9 of 13

could be held personally liable for any damages that flowed from the incident. 

The trial court awarded summary judgment in favor of Benner because though 

off duty, Benner was otherwise in substantial compliance with State Police 

policy in operating his commission and was therefore not clearly outside the 

scope of his employment. Id. The Court of Appeals reversed, opining that 

reasonable minds could disagree whether the trooper was outside the scope of 

his employment and summary judgment was thus inappropriate. Id. at 851. 

The Indiana Supreme Court granted transfer and found that, despite “some 

evidence that Trooper Benner was not in strict compliance with State Police 

policy at the time of the accident,” such was insufficient to place him “clearly 

outside” the scope of his employment. Id. Accordingly, the grant of summary 

judgment to Trooper Brenner was affirmed. Id.

[15] In reaching its decision, the Court discussed the availability of Trooper 

Benner’s affirmative defense under the ITCA:

The ITCA “governs lawsuits against political subdivisions and 

their employees.” Bushong v. Williamson, 790 N.E.2d 467, 472 

(Ind. 2003); Ind. Code § 34-13-3-1 et. Seq. The statute sets forth 

certain parameters to determine liability for negligent acts or 

omissions on the part of government employees and “provides 

substantial immunity for conduct within the scope of the 

employee's employment.” Id. “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.” Celebration 

Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind. 2000) (citation 

omitted). Relevant to the present case, “A lawsuit filed against 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 10 of 13

an employee personally must allege that an act or omission of the 

employee that causes a loss is ... clearly outside the scope of the 

employee’s employment.” Ind. Code § 34-13-3-5(c)(2) (emphasis 

added.)

Generally speaking, “whether an employee’s actions were within 

the scope of employment is a question of fact to be determined by 

the factfinder.” Knighten v. East Chicago Housing Authority, 45 

N.E.3d 788, 794 (Ind. 2015) (citation omitted). When the facts 

are undisputed and “would not allow a jury to find that the 

tortious acts were within the scope of employment,” however, a 

court may conclude as a matter of law that the acts were not in 

the scope of employment. Cox v. Evansville, 107 N.E.3d 453, 460 

(Ind. 2018).

Under the doctrine of respondeat superior, an employee’s act or 

omission falls within the scope of employment if the injurious 

behavior is incidental to authorized conduct or furthers the 

employer’s business to an appreciable extent. Knighten, 45 

N.E.3d at 792 (citation omitted). Conversely, “an employee’s act 

is not within the scope of employment when it occurs within an 

independent course of conduct not intended by the employee to 

serve any purpose of the employer.” Id. (quoting Barnett v. Clark, 

889 N.E.2d 281, 284 (Ind. 2008)). But “an employee’s wrongful 

act may still fall within the scope of his employment if his 

purpose was, to an appreciable extent, to further his employer’s 

business, even if the act was predominantly motivated by an 

intention to benefit the employee himself.” Id. Ultimately, we 

have found that “the scope of employment encompasses the 

activities that the employer delegates to employees or authorizes 

employees to do, plus employees’ acts that naturally or 

predictably arise from those activities.” Cox, 107 N.E.3d at 461.

140 N.E.3d at 852.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 11 of 13

[16] The Court acknowledged the absence of a “precise formula” for acting “outside 

the scope of employment” but observed that Trooper Benner’s “conduct [was] 

of the same general nature as that authorized, or incidental to the conduct 

authorized by the State Police.” Id. at 853. There existed no genuine issue of 

material fact precluding summary judgment. Id. 

[17] The Nickolsons argue that Burton is factually distinguishable in that Trooper 

Benner had “ongoing” duties pursuant to a “written policy promulgated by the 

Indiana State Police.” Appellant’s Brief at 21. But it is uncontroverted that 

Freed was acting in accordance with her employer’s instruction to get her bus to 

an inspection site; statutory immunity for a government employee is not limited 

to acts performed pursuant to written directives. The Nickolsons failed to 

allege that Freed was acting clearly outside the scope of her employment and, 

once Freed designated materials to show that she was acting in the scope of her 

employment, failed to designate any evidence to the contrary.

[18] Finally, the Nickolsons argue that summary judgment is inappropriate because 

of a factual dispute. Specifically, the Nickolsons claim that Freed’s credibility 

regarding her cell phone usage has been called into question. According to the 

Nickolsons, “[Freed’s] cellular phone records showed she did send a text during 

the period she claimed to be home cleaning her bus. Moreover, the text appears 

to have occurred on or about the exact time of her collision with Mataya.” 

Appellant’s Brief at 18. 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 12 of 13

[19] When deposed, Freed denied using her cell phone at the time of the accident; 

she stated that it was in her purse. This testimony was uncontroverted. 

However, Freed did not report having sent a text message at 7:44 a.m., as 

reflected in AT&T records.2 A fact is material if its resolution would affect the 

outcome of the case. Hughley v. State, 15 N.E.3d 1000, 2003 (Ind. 2014). An 

issue is genuine if a trier of fact is required to resolve the parties’ differing 

accounts of the truth or if the undisputed material facts support conflicting 

reasonable inferences. Id.

[20] The Indiana State Police Report indicated that the accident between Mataya’s 

vehicle and Freed’s bus occurred at 7:45 a.m. Freed’s cell phone usage at 7:44 

a.m. has temporal proximity, but no alleged connection to the accident. The

Nickolsons did not aver in their Complaint that Freed was engaging in willful 

and wanton behavior. In response to Freed’s testimony that her phone was in 

her purse at the time of the accident, the Nickolsons designated no evidence 

tending to show that Freed was then using her phone. They do not argue that 

phone usage was a contributing factor to the accident. The suggested relevance 

is that Freed was taking a break instead of cleaning her bus as directed. 

2 At her deposition, Freed was asked if she made calls when she was at home and she responded that she had 

not. Freed was then asked, “didn’t do anything,” and she responded “no.” (App. Vol. II, pg. 75.) The 

telephone records indicated use of the cell phone for an upload and download (possibly consistent with an 

internet search) and a text message. 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-1046 | August 31, 2020 Page 13 of 13

[21] Assuming its relevance here, Burton offers guidance on the imposition of 

personal liability when an employee is not fully compliant with employer 

policies:

To the extent Burton argues Trooper Benner’s violation of traffic 

laws exposed him to personal liability under the ITCA, we 

disagree. True, State Police policy expressly prohibits violation 

of traffic laws, but in our view, the violation in this case did not 

move Benner “clearly outside” the scope of his employment. 

Recall that the scope of employment “may include acts that the 

employer expressly forbids” or “that violate the employer's rules, 

orders, or instruction.” Cox, 107 N.E.3d at 461. While State 

Police policy forbids speeding in non-emergency situations, 

speeding could “naturally or predictably arise” from driving a 

commission even while off duty. See id. at 461-62. The “clearly 

outside” standard set forth in Indiana Code section 34-13-3-

5(c)(2) represents a high bar and, in this case, we are not 

convinced that bar has been cleared.

140 N.E.3d at 853. Here, the record discloses nothing taking Freed clearly 

outside the scope of her employment at the time of the accident. 

Conclusion

[22] Because Freed was not acting clearly outside the scope of her employment at 

the time of the collision, she is entitled to government employee immunity. 

The trial court properly granted summary judgment.

[23] Affirmed.

Vaidik, J., and Baker, Sr. J., concur.