ATTORNEYS FOR APPELLANT			ATTORNEYS FOR APPELLEE

Robert T. Keen, Jr.				Joseph A. Christoff

Karl J. Veracco				Catherine S. Christoff

Fort Wayne, Indiana				Fort Wayne, Indiana

IN THE

SUPREME COURT OF INDIANA

DENNIS TIPPMANN, JR.,			)

							)

	Appellant (Defendant Below),	)

							)  02S03-9603-CV-201

		v.					)  in the Supreme Court

							)

BRIAN S. HENSLER,				)  02A03-9412-CV-467

							)  in the Court of Appeals

	Appellee (Plaintiff Below).	)

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Nancy Eshcoff Boyer, Judge

Cause No. 02D01-9209-CP-1645

September 22, 1999

SHEPARD, Chief Justice.

	This case comes to us on interlocutory appeal from the denial of Dennis Tippmann, Jr.'s, motion for summary judgment.  The Court

of Appeals remanded the case to the trial court for more fact

finding on the trial court's subject matter jurisdiction.  Tippmann v. Hensler, 654 N.E.2d 821, 826 (Ind. Ct. App. 1995).

	We grant transfer.

Facts

	Brian S. Hensler and Dennis Tippmann, Jr., were co-employees

at Tippmann Pneumatics, Inc.  Hensler worked as a paintball gun

assembler, and Tippmann worked in the service department repairing

paintball guns shipped to the company for repairs.  On or about

October 19, 1990, Hensler, Tippmann, and other employees were

taking a scheduled afternoon break in a large room where paintball

guns were serviced.  According to Hensler,1 Tippmann began "playing around" by aiming a gun that Tippmann had just serviced at Hensler

and asking him, "Where do you want me to shoot you at?"  (R. at

97.)  Hensler responded by leaving the room, getting another

paintball gun, and returning.  The employees then sat together

conversing, with Tippmann no longer pointing the gun at Hensler.  

	At the far end of the room in one corner was a paint booth in

which employees test fired paintball guns and paint grenades.  At

that same end of the room, but in the opposite corner, was the door

through which one would enter or exit the room.  "[J]ust for fun,"

and not as part of their actual duties, (R. at 97), one of the employees fired a few shots down the length of the service room

into the paint booth, and Hensler did likewise with the gun he now

had.  Tippmann angrily told the employees to stop firing their guns

because, according to Tippmann, "it [was] kind of messy" and he

"would probably have the clean it up."  (R. at 49.)  Hensler,

however, stated that it was not part of Tippmann's job

responsibilities to clean the paint booth, that in fact no one

cleaned it.  Regardless, Hensler responded to Tippmann's order by

"dry firing" his gun (firing without ejecting a paintball) at the

ceiling.  Tippmann responded to Hensler's act of defiance by

beginning to load his paintball gun, stating that he was going to

shoot Hensler.  Tippmann admitted that at this time he "may have

wanted to hit Hensler while he was in the room."  (R. at 95.) 

Hensler responded, "Forget this.  I'm going to get out of here,"

(R. at 60), and exited the service room.  He did not state that he

would be returning.

	Tippmann testified that after Hensler left he decided to fire

at the door through which Hensler had exited so as to make a loud

sound against it and "scare" Hensler.  (R. at 53-55.)  Hensler,

however, realizing after exiting that his break had not yet

expired, re-entered the service room to continue his break "and

talk to the guys."  (R. at 61.)  He stated that he was not in fear

of being shot by Tippmann if he re-entered, believing that Tippmann

had been "playing around" and was not really serious when he

earlier threatened to shoot Hensler.  (Id.)  He therefore approached the door and proceeded to re-enter unannounced. 

Tippmann says that just as he fired his shot at the door, Hensler

unexpectedly reentered the room through it.  Tippmann's paintball

struck Hensler in the left eye, causing severe and permanent

damage.

	Hensler filed a worker's compensation claim with Tippmann

Pneumatics, and entered a settlement agreement with the company

regarding the claim.  He then filed a complaint in Allen Superior

Court against Tippmann, alleging that Tippmann's negligence caused

his injury, or alternatively that Tippmann intentionally caused his

injury.  Tippmann moved for summary judgment, claiming that the

exclusivity provision of the Worker's Compensation Act, Ind. Code

§ 22-3-2-6, barred Hensler's action against him.  The trial court

denied Tippmann's motion, finding that material issues existed as

to whether Tippmann intended to injure Hensler; whether the

injuries were the result of horseplay and, if so, whether Hensler

was an active participant or an innocent victim; and whether

Tippmann was "in the same employ" when he injured Hensler. 

Tippmann then sought and received leave to file an interlocutory

appeal.  

	The Court of Appeals remanded for a factual determination only

on the issue of whether Hensler actively participated in horseplay,

stating that if so, the trial court could hear the case, but if

not, the trial court should dismiss for lack of subject matter jurisdiction.  Tippmann, 654 N.E.2d at 826.  The court based its holding on prior Indiana cases that denied worker's compensation

benefits to victims of horseplay injuries who themselves were

actively engaged in the horseplay when the injury occurred.  Id. at 826 (citing Weldy v. Kline, 616 N.E.2d 398 (Ind. Ct. App. 1993)).  It rejected the trial court's rulings concerning the other two

material issues.  First, the Court of Appeals held that the

litigants had been "in the same employ," because "had Tippmann been

injured under the same or similar circumstances, he would have been

able to obtain worker's compensation benefits to the same extent as

Hensler."  Id. at 825.  Second, it declared that the trial court must consider the question of Tippmann's intent to harm Hensler

when he fired the injurious volley.  Id. at 826.

I.  Standard of Review

	As the Court of Appeals correctly noted, "[T]he use of a

summary judgment motion is an inappropriate manner in which to

claim that the exclusivity provision of the [Worker's Compensation]

Act bars a plaintiff's complaint."  Id. at 824 (citing Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994)).  This is because such a claim "is an attack on the court's subject matter

jurisdiction, which cannot form the basis of a motion for summary

judgment."  Perry, 637 N.E.2d at 1286 (footnote omitted).  "Accordingly, we proceed to analyze this case as a question of jurisdiction on which the plaintiff carries the burden of proof and

would, typically, have been required to present evidence."  Foshee v. Shoney's Inc., 637 N.E.2d 1277, 1280-81 (Ind. 1994).

II.  Suits Against Co-Employee Tortfeasors

	The Worker's Compensation Act provides an exclusive remedy against an employer for accidental injuries that arise out of and

in the course of the injured victim's employment.  Ind. Code Ann.

§§ 22-3-2-6, 22-3-6-1(e) (West Supp. 1997); Evans v. Yankeetown Dock Corp., 491 N.E.2d 969 (Ind. 1986).  The Act extends the immunity provided by the exclusivity provision to those "in the

same employ" as the injured employee when the injury occurred. 

	Thus, a suit against a co-employee can proceed at trial under

one of two circumstances.  First, if the plaintiff can show that

the Act does not apply to that particular litigation, then the

trial court, and not the Worker's Compensation Board, has

jurisdiction.  The plaintiff accomplishes this by showing that the

injury was not "by accident," that it did not "arise out of his

employment," or that it did not "occur in the course of his

employment."  Ind. Code Ann. §§ 22-3-2-6, 22-3-6-1(e) (West Supp.

1997); Evans, 491 N.E.2d at 973.  Second, even if the Act applies, its exclusive remedy provision will not bar a common law suit

against an employee who was not "in the same employ" as the plaintiff when the injury occurred.  Ind. Code Ann. § 22-3-2-13

(West 1991); Thiellen v. Graves, 530 N.E.2d 765, 768 (Ind. Ct. App. 1988). 

III.  Intentional Torts

	 The first jurisdictional question a trial court must answer

is whether the injury at issue occurred "by accident."  See Evans, 491 N.E.2d at 973.  If the injury did not occur "by accident," then

the Act does not apply and the trial court has jurisdiction.  In

Evans, we examined whether the phrase "by accident" focused on the unexpectedness and unusualness of the event causing the injury, or merely on the unexpectedness of the injury itself.  We decided on

the latter, concluding that injury "by accident" meant "accidental

injury," not "injury caused by an accident."  Id. at 974.  Given this interpretation, we adopted the following test for determining

when an accidental injury had occurred:  whether the sufferer

intended or expected that injury would, on that particular

occasion, result from what he was doing.  Id.  

	In Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271 (Ind. 1994), we reaffirmed the Evans interpretation of "by accident" as meaning an unexpected injury, rather than an unexpected or unusual

event.  We noted, however, that Evans' victim-focused "by accident" test left out another important consideration for determining when an employee's injury, if caused by his employer, was accidental: 

the employer's intentions and expectations.  Id. at 1273.  Thus, we stated, "Because we believe an injury occurs 'by accident' only

when it is intended by neither the employee nor the employer, the

intentional torts of an employer are necessarily beyond the pale of

the act."  Id.; see also Perry, 637 N.E.2d at 1287; Foshee, 637 N.E.2d at 1281.

	Viewing this language in Baker narrowly, Tippmann argues that his alleged intent to harm Hensler is of no moment, since only the

employer's and injured employee's intentions matter when

determining whether the injury was "by accident."  (Appellant's Br.

at 14-15, Appellant's Transfer Br. at 9-10.)  The Court of Appeals

agreed with Tippmann's interpretation of Baker.  Tippmann, 654 N.E.2d at 825; see also Landis v. Landis, 664 N.E.2d 754, 756 (Ind. Ct. App. 1996).  Such an application of the test enunciated in our

recent cases, while adhering to its letter, ignores its reasoning

and misapprehends its purpose.  

	Baker, Perry, and Foshee were cases in which an employer was being sued by its employee -- the "by accident" requirement in

suits against co-employees was not at issue, see, e.g., Perry, 637 N.E.2d at 1285 n.1; Foshee, 637 N.E.2d at 1280 n.1, nor was it specifically addressed.2  While the test stated in these opinions mentions only the expectations of employer defendants and employee

plaintiffs, the reasoning behind the test imparts itself equally to

intentional torts inflicted by employees as to those inflicted by

employers.  We think that the same considerations which prevent an

employer who has intentionally injured its employee from claiming

that the injury was "by accident" also prevent a co-employee who

has intentionally injured a fellow employee from asserting the

injury was "by accident."  Therefore, following the logical

progression of reasoning from Evans to Baker to the case at hand, we hold that a party to a worker's compensation suit cannot claim

that the injury at issue occurred "by accident," and thereby

receive compensation3 or immunity under the Act, when that party intended harm to arise from the acts which resulted in the injury. 

Therefore, the appropriate test for determining whether the injury

was accidentally caused is the question, "Did the party who is advocating the applicability of the Act intend for harm to result

from the actions that party undertook?"  If so, then the injury did

not occur "by accident" for that particular litigant.

	Because this test focuses more on the intentions of the party

alleging "accidental" injury than on the injury itself, one might

notice that the same injury can be both "by accident" and not "by

accident," depending on who is alleging the applicability of the

Act.  Such a circumstance, however, is not unusual.  According to

the North Carolina Court of Appeals, "[t]he mere fact . . . that an

injury is termed 'accidental' from the injured employee's

viewpoint, requiring the employer to pay compensation under the

Act, does not mean that the injury is accidental from the viewpoint

of the intentional assailant."  Andrews v. Peters, 284 S.E.2d 748, 750 (N.C. Ct. App. 1981).  For instance, an employee who is

repeatedly stabbed by a fellow employee during an argument at work

could file a claim for and receive worker's compensation on the

premise that the injury she suffered was "by accident."  In this

instance, neither the employee nor the employer intended or

expected the injury; therefore, to those parties it was unexpected

and accidental.  

	When the same employee, however, then brings suit against the

co-employee for the intentional tort, it is the co-employee

tortfeasor, and not plaintiff who, in order to receive immunity,

must allege that the stabbing injury he inflicted was "by accident," something he is unable to do.  As Professor Larson

states, "The legal reason for permitting the common-law suit for

direct assault by the employer or coemployee . . . is that the same

person cannot commit an intentional assault and then allege it was

accidental."  6 Arthur Larson, Larson's Worker's Compensation Law, § 68.21(b), at 13-123 (1997).  He further states, "There is nothing

inconsistent in this result, curious as it may seem on the surface,

since it is quite proper to analyze the incident in each type of

action from the standpoint of the person having the burden of

establishing his case or defense."  Id. § 68.12 at 13-12.

A.  Previous Cases and the "By Accident" Requirement.  At first glance, Indiana precedent might seem to preclude review of a

defendant employee's intentions as part of the "by accident"

determination, as many prior cases have found such co-employee

intentional torts to be "by accident" for purposes of coverage

under the Act.  For example, in Evans we found the shooting death of an employee at the hands of a fellow employee while at work to

be "by accident."  Evans, 491 N.E.2d at 975.  Likewise, in Foshee,  we found stabbing injuries inflicted by one employee upon another

to be "by accident."  See Foshee, 637 N.E.2nd at 1281; see also Baker, 637 N.E.2d at 1275 n.6.  Many other Indiana cases have found likewise.4  There is one important distinction, however, between these many cases and the case at bar.  These cases involved either

an injured employee's attempt to sue her employer for an injury

intentionally caused her by a co-employee, see, e.g., Foshee, 637 N.E.2d 1277; Evans, 491 N.E.2d 969; Gordon v. Chrysler Motor Corp., 585 N.E.2d 1362 (Ind. Ct. App. 1992); Fields v. Cummins Emp. Fed. Credit Union, 540 N.E.2d 631 (Ind. Ct. App. 1989); Arrow Uniform Rental, Inc. v. Suter, 545 N.E.2d 832 (Ind. Ct. App. 1989); Shelby v. Truck & Bus Group Div. of GMC,5 533 N.E.2d 1296 (Ind. Ct. App. 1989); or an employer's attempt to overturn an award of

compensation to an employee who was intentionally injured by a co-

employee, see, e.g., Inland Steel Co. v. Flannery, 88 Ind. App. 347, 163 N.E. 841 (1928); Furst Kerber Cut Stone Co. v. Mayo, 82 Ind. App. 363, 144 N.E. 857 (1924); Payne v. Wall, 76 Ind. App. 634, 132 N.E. 707 (1921); Mueller v. Klingman, 73 Ind. App. 136, 125 N.E. 464 (1919).  None of these cases involved the

applicability of the Worker's Compensation Act to an intentional tort action between fellow employees.  This is an important

distinction, because in all these cases the party alleging that the

injury was "by accident" was not the party that had intentionally

caused the harm.  Thus, from the standpoint of the one alleging

accidental injury in each case, the injury was not intended or

expected, and was, to him or her, "accidental."6

	Thirty-four states currently exclude intentional tortfeasors

from worker's compensation immunity.  Larson, § 72.21 at 14-143 n.

23.01 (Supp. Nov. 1997).  Twenty-two have statutory provisions

explicitly excepting intentional torts, id. n.23.1, and twelve except intentional torts through judicial decisions "based usually

either on public policy or on the limitation of the act to accidental injury." Id. at 14-143, 14-145.  Like Indiana, many of the states which exclude intentional torts from worker's

compensation immunity under an accidental injury limitation or its

equivalent do so in the face of older precedent finding one

employee's intentional injuring of another to be "by accident" for

purposes of compensation of the injury under the Act.  The Supreme

Court of Tennessee addressed this apparent inconsistency thirty

years ago:

	We have authority for the proposition that an

employee who is injured by a third person at a time when

he is acting in the course of his employment suffers an

"accident arising out of employment," which is

compensable.

	All of these cases treat the injuring incident as an

"accident" on the theory the incident was unexpected or

unusual, or unintended from the standpoint of the

employee. . . .

	. . . .

[W]hat we have to decide is whether or not the fiction,

that the employee-victim of an intentional, deliberate

assault has sustained an accident because it was

unexpected and unintended on his part, can be availed of

by an assaulting co-employee to compel his victim to

proceed under the Act.  And we think the assaulter cannot

so compel the victim, because the fiction was created and

is allowed to operate solely because this is the fair,

right and just thing to do.  It is a conclusion based

entirely on the effect on the assaulted employee.  So

that it would be a travesty on justice, indeed, to make

this fiction operate in favor of one whose act has been

wilful and malicious and intentionally harmful and is in

no conceivable sense an "accident."

Williams v. Smith, 435 S.W.2d 808, 809-11 (Tenn. 1968) (citations omitted).  Professor Larson also approves distinguishing the older

cases on this basis, as noted by the Michigan Supreme Court:

[T]his Court has found deliberate assaults by coemployees

or third persons to be compensable under the act.  Apparently, the Court found the assaults to be accidents. 

As Professor Larson explained,  "[T]he early difficulty

presented by the argument that such an injury was the

result of intention as distinguished from accident was

overcome by the simple expedient of viewing the affair

from the point of view of the victim rather than of the

assailant, since from the victim's point of view the

assault was an unexpected and untoward mishap." 

Professor Larson has suggested that in deciding whether

an incident was an accident, the incident should always

be viewed from the perspective of the person seeking the

protection of the act:  When the employee seeks to

recover benefits, the question is whether the injury was

an accident from the employee's perspective; if the

employer seeks to impose the accident requirement as a

defense, the question is whether the injury was an

accident from the employer's perspective.  Once it is

recognized that the accident requirement is examined from

the perspective of the party seeking to benefit from the

alleged accident, the apparent conflict [with the older

precedent] is resolved. 

Beauchamp v. Dow Chemical Co., 398 N.W.2d 882, 888 (Mich. 1986) (superceded by statute) (quoting 2A Larson, § 68.12, p. 13-7)

(footnotes omitted).7  Accord Elliott v. Brown, 569 P.2d 1323 (Alaska 1977); Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222 (Ill. 1990); Richardson v. County of Cook, 621 N.E.2d 114 (Ill. App. Ct. 1993); Mazarredo v. Levine, 80 N.Y.S.2d 237 (N.Y. App. Div. 1948).

2B.  Justifications for Excluding Intentional Tortfeasors from Immunity.  Besides finding support from many other jurisdictions and from Professor Larson, our extension of the Baker rule to encompass the  intentions of a co-employee intentional tortfeasor

when he is defending an intentional tort claim is supported by

text, precedent, and policy.

	First, as we said in Evans, "by accident" means "accidental injury."  Evans, 491 N.E.2d at 974.  The common understanding of an "accidental" injury is one in which neither the inflicting nor the

injured party expected the injury to occur, as exemplified by the

following definition of "accidental":  "happening or ensuing

without design, intent, or obvious motivation or through inattention or carelessness."  Webster's Third New International Dictionary 11 (1993) (emphasis added).  Words such as "design," "intent," "inattention," and "carelessness" contemplate the mens

rea of the one causing the injury, and not just the one receiving

it.8  This understanding, that the phrase "by accident" encompassed both the plaintiff's and the defendant's expectations, motivated us

in Baker to broaden the Evans test and hold that the Act's language excluded from immunity an employer who intentionally injured its

employee.  See Baker, 637 N.E.2d at 1273.  In light of that understanding of the Act's express language, to hold now that this

same language does not exclude a co-employee's intentional torts from immunity would create an exception to the Act incompatible

with its express language.  Also, given Baker, such a holding would be "anomalous," Golec v. Metal Exchange Co., 551 N.W.2d 132, 150 (Mich. 1996), and "unreasonable," Newby v. Gerry, 690 P.2d 603, 607 (Wash Ct. App. 1984).  "If the employer cannot use the worker's

compensation act as a shield to protect itself from intentional

misconduct, then neither should the act shield a coemployee from

liability for intentional misconduct."  Whaley v. McClain, 405 N.W.2d 187, 189 (Mich. Ct. App. 1987).  

	Second, to hold that the Act provides immunity for employees

who intentionally injure their co-workers would insulate those

employees from the deterrence that arises from exposure to regular

civil damages.  Cf. Baker, 637 N.E.2d at 1274 (explaining the deterence effects of allowing regular civil damages against

employers who commit intentional torts).  As the Michigan Supreme

Court noted, "Intentional misconduct would seem to be the type of

behavior the Legislature would most want to deter and punish. 

Including intentional torts within the exclusivity provision would

in that sense be counterproductive."  Beauchamp, 398 N.W.2d at 889.  In discussing this deterrence rationale, the Utah Supreme Court

stated, "It would serve no social purpose to allow an employee to

intentionally injure another employee engaged in the same

employment, then use an otherwise socially beneficial, remedial,

statute as a shield for such wrongdoing."  Bryan v. Utah Int'l, 533 P.2d 892, 894 (Utah 1975).  See also Newby, 690 P.2d at 607-08 ("forbidding suit would allow an employee to bludgeon a co-worker

with civil impunity, and . . . remove the deterrent effect of civil

liability and damages").

	Third, while immunity from liability for accidental workplace

injuries is part of what employees received in the quid quo pro exchange underlying the worker's compensation system, Indiana

public policy would not allow the exchange to include immunity from

intentional torts, because "Indiana generally denies the ability to insure against or waive liability for intentional torts."  Baker, 637 N.E.2d at 1274 (citing LaFrenz v. Lake County Fair Bd., 172 Ind. App. 389, 360 N.E.2d 605 (1977)).  As we noted in Stump v. Commercial Union, 601 N.E.2d 327 (Ind. 1992), "The long-standing rule of this jurisdiction is that the Worker's Compensation Act

should be liberally construed to effectuate the humane purposes of

the Act . . . ."  Id. at 331-32 (citing Talas v. Correct Piping Co., Inc., 435 N.E.2d 22, 28 (Ind. 1982)).  We do not believe those "humane purposes" include shielding from civil liability an

employee who intentionally injures his fellow employee.

	Finally, we see little danger that allowing an employee to sue

a co-employee for an intentional tort might lead to double

recovery.  See, e.g., Fregeau v. Gillespie, 451 N.E.2d 870, 872 (Ill. 1983).  Such a fear, however, is unfounded because the

employer or its worker's compensation insurance carrier would have

subrogation rights to the award under Ind. Code § 22-3-2-13.  Such

subrogation would thereby repay the insurance carrier or company

for the cost of the intentional wrong.  In this way subrogation

also prevents the intentional tortfeasor from shifting the cost of his wrongdoing onto the industry and the consumer.9  Meerbrey, 564 N.E.2d at 1229.  As the Alaska Supreme Court stated, 

Workmen's compensation benefits are paid from

employer[s'] premiums, as a means of spreading the cost

of hazards of the workplace.  We do not believe it would

be wise public policy to allow an intentional tortfeasor

to shift his liability for his acts to such a fund. 

Assaults by fellow workers differ not in degree but in

kind from the type of harm the statute was enacted to

deal with [sic].

Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977).  The Washington Court of Appeals summed up nicely the subrogation

justification for not shielding co-employee intentional tortfeasors

from liability:

The employer and worker's compensation fund will benefit

because it has a lien on any recovery from the tortfeasor

for benefits paid. . . .  The employee will benefit by

possessing a right to recover for the full measure of his

injuries. . . .  The public will benefit by a fairer

allocation of compensation for injuries, and the

deterrence of workplace intentional torts.  The consumers

will benefit because the costs of the wrongdoer's actions

are not passed on as higher prices for goods and

services.  Only the intentional tortfeasor stands to lose

if a suit proceeds.  He is not deserving of protection.

Newby, 690 P.2d at 608 (citations omitted).  

C.  Showing Intent.  In Baker we decided that a plaintiff must demonstrate a high degree of "intent to harm" on the part of an

employer before an injury caused by that employer will be found

intentional.  We based our decision on the observation of the Court of Appeals in National Can Corp. v. Jovanovich, 503 N.E.2d 1224 (Ind. Ct. App. 1987), that a lower standard risked "'the workmen's

compensation scheme being "swallowed up" by a glut of common law

suits outside the Act.'"  Baker, 637 N.E.2d at 1275 (quoting National Can, 503 N.E.2d at 1233 n.14.)  Our concern over a proliferation in litigation also informs our view of intentional

tort actions against co-employees.  Accord  Fregeau, 451 N.E.2d at 872.  Therefore, "[n]othing short of deliberate intent to inflict an

injury, or actual knowledge that an injury is certain to occur,

will suffice." Baker, 637 N.E.2d at 1275.10  We note, however, that the defendant need not have intended the particular injury which

resulted.  As long as he intended an appreciable degree of harm to

arise from his actions, it does not matter that more or less harm

resulted, compared to that which he originally intended.  See Restatement (Second) of Torts § 8A cmt. b (1965).

4D.  Application of "By Accident" Standard.  

	The trial court determined that a factual dispute existed as to "whether Tippmann

intentionally acted to harm Hensler" when he fired the shot whichthat

struck Hensler in the eye.  (R. at 128.)  This determination was

the product of its review of the evidence under a motion for

summary judgment, upon which a court cannot weigh evidence, and must resolve all inferences in favor of the non-moving party. 

Perry, 637 N.E.2d at 1286.  When making a jurisdictional determination, however, a trial court has "considerable latitude in

devising procedures to ferret out the facts pertinent to

jurisdiction," and "may weigh evidence to determine the existence

of the requisite jurisdictional facts.  Id. at 1286-87.  

	Our review of the record satisfies us that the evidence

provided an adequate showing of "deliberate intent to inflict an

injury," Baker, 637 N.E.2d at 1275, and that granting a motion to dismiss would have been error.  Tippmann grabbed a gun, announced

"Where do you want me to shoot you at?", and fired multiple times

in Hensler's direction.  This sufficies.  

Conclusion

	We reverse the trial court and remand for proceedings on the

merits of Hensler's lawsuit.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.