Sec. 5. (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 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;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the
allegations.
(d) This subsection applies when the governmental entity defends
or has received proper legal notice and has the opportunity to defend
an employee for losses resulting from the employee's acts or omissions.
Subject to the provisions of sections 4, 14, 15, and 16 of this chapter,
the governmental entity shall pay any judgment of a claim or suit
against an employee when the act or omission causing the loss is within
the scope of the employee's employment, regardless of whether the
employee can or cannot be held personally liable for the loss.
(e) The governmental entity shall provide counsel for and pay all
costs and fees incurred by or on behalf of an employee in defense of a
claim or suit for a loss occurring because of acts or omissions within
the scope of the employee's employment, regardless of whether the
employee can or cannot be held personally liable for the loss.
(f) This chapter shall not be construed as:
(1) a waiver of the eleventh amendment to the Constitution of the
United States;
(2) consent by the state of Indiana or its employees to be sued in
any federal court; or
(3) consent to be sued in any state court beyond the boundaries of
Indiana.
[Pre-1998 Recodification Citation: 34-4-16.5-5.]
As added by P.L.1-1998, SEC.8. Amended by P.L.192-2001,
SEC.2; P.L.161-2003, SEC.7.
Notes of Decisions
Cited in
213
cases (
119 in the last 5 years), 2000–2026 · leading case:
Bushong v. Williamson, 790 N.E.2d 467 (Ind. 2003).
Bushong v. Williamson, 790 N.E.2d 467 (Ind. 2003).
· cites it 14× “” See I.C. § 34-13-3-5(a) (current version at I.”
Bushong v. Williamson, 760 N.E.2d 1090 (Ind. Ct. App. 2001).
· cites it 61× “Upon appeal, the Bushongs present the following issues which we restate: (1) Whether a trial court may rely upon documents outside the Complaint in determining if the Complaint alleges that the Defendant's acts were within the scope of employment for purposes of maintaining a…”
Porter Cnty. Sheriff Dep't v. Guzorek, 857 N.E.2d 363 (Ind. 2006).
· cites it 12× “Ind.Code § 34-13-3-5 (2006). Having received the Tort Claims Notice that claimed Officer Falatic was acting within the scope of his employment and then receiving a complaint that did not even mention his employment, they could plausibly conclude that Plaintiffs' counsel, having…”
Mayes v. City of Hammond, In, 442 F. Supp. 2d 587 (N.D. Ind. 2006).
· cites it 11× “ons were tentative, that Solan had forbidden Myszak to use hypnosis, that there is no evidence that Solan either fabricated or intentionally excluded exculpatory evidence leading to the arrest of Mayes, that he is entitled to qualified immunity, that he was not deliberately…”
Wallace v. Rosen, 765 N.E.2d 192 (Ind. Ct. App. 2002).
· cites it 8× “In separate counts, the complaint also alleged that IPS was negligent in the employment and continued employment of Rosen, and that the continued employment served to ratify the acts of Rosen.”
State v. Evans, 790 N.E.2d 558 (Ind. Ct. App. 2003).
· cites it 23× “He urges that Indiana Code § 34-13-3-5, requiring the provision of counsel to a governmental employee "in defense of a claim or suit for a loss occurring because of acts or omissions within the scope of the employee's employment, regardless of whether the employee can or cannot…”
Cantrell v. Morris, 849 N.E.2d 488 (Ind. 2006).
· cites it 4× “I.C. § 34-13-3-5(b), (d). 6 E. Damage Claims for Wrongful Discharge in Violation of Section 9 Under traditional tort doctrines a violation of a statutory or constitutional obligation may give rise to a civil damage claim.”
Higgason v. State, 789 N.E.2d 22 (Ind. Ct. App. 2003).
· cites it 10× “Whether the trial court erred by granting Defendants' motion to dismiss because Higgason's complaint did not meet the requirements of Ind.Code § 34-13-3-5. 1 We affirm. FACTS AND PROCEDURAL HISTORY 2 Higgason is an inmate housed in the Secured Housing Unit ("SHU") at the *26…”
Land v. Int'l Bus. Machines Corp., 108 F. Supp. 3d 632 (S.D. Ind. 2015).
· cites it 12× “Plaintiff explained that in refiling her claims, she “named the state entities responsible for the conduct alleged rather than the individuals who were named in the original federal court complaint, as required by Ind.Code § 34-13-3-5.” The substance of Plaintiffs allegations…”
Turner v. Sheriff of Marion Cnty., 94 F. Supp. 2d 966 (S.D. Ind. 2000).
· cites it 9× “I.C. § 34-13-3-5(a). *985 Plaintiffs may recover damages for emotional distress caused by a trespass regardless of physical injury.”
John Feldhake v. Edwin Buss, Latoya Lane, & Nathan Walters, 36 N.E.3d 1089 (Ind. Ct. App. 2015).
· cites it 9× “Ind.Code § 34-13-3-5(a). To sue a government employee personally, the plaintiff “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; (4) willful and wanton; or (5)…”
Lessley v. City of Madison, Ind., 654 F. Supp. 2d 877 (S.D. Ind. 2009).
· cites it 6× “Indiana Code § 34-13-3-5(b) provides in part: “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.”
— Ind. Code § 34-13-3-5(a) — 13 cases
Bushong v. Williamson, 760 N.E.2d 1090 (Ind. Ct. App. 2001).
“Upon appeal, the Bushongs present the following issues which we restate: (1) Whether a trial court may rely upon documents outside the Complaint in determining if the Complaint alleges that the Defendant's acts were within the scope of employment for purposes of maintaining a…”
Turner v. Sheriff of Marion Cnty., 94 F. Supp. 2d 966 (S.D. Ind. 2000).
“I.C. § 34-13-3-5(a). *985 Plaintiffs may recover damages for emotional distress caused by a trespass regardless of physical injury.”
— Ind. Code § 34-13-3-5(b) — 102 cases
Mayes v. City of Hammond, In, 442 F. Supp. 2d 587 (N.D. Ind. 2006).
“ons were tentative, that Solan had forbidden Myszak to use hypnosis, that there is no evidence that Solan either fabricated or intentionally excluded exculpatory evidence leading to the arrest of Mayes, that he is entitled to qualified immunity, that he was not deliberately…”
Wallace v. Rosen, 765 N.E.2d 192 (Ind. Ct. App. 2002).
“In separate counts, the complaint also alleged that IPS was negligent in the employment and continued employment of Rosen, and that the continued employment served to ratify the acts of Rosen.”
Lessley v. City of Madison, Ind., 654 F. Supp. 2d 877 (S.D. Ind. 2009).
“Indiana Code § 34-13-3-5(b) provides in part: “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.”
Porter Cnty. Sheriff Dep't v. Guzorek, 857 N.E.2d 363 (Ind. 2006).
“Ind.Code § 34-13-3-5 (2006). Having received the Tort Claims Notice that claimed Officer Falatic was acting within the scope of his employment and then receiving a complaint that did not even mention his employment, they could plausibly conclude that Plaintiffs' counsel, having…”
— Ind. Code § 34-13-3-5(c) — 46 cases
Cantrell v. Morris, 849 N.E.2d 488 (Ind. 2006).
“I.C. § 34-13-3-5(b), (d). 6 E. Damage Claims for Wrongful Discharge in Violation of Section 9 Under traditional tort doctrines a violation of a statutory or constitutional obligation may give rise to a civil damage claim.”
John Feldhake v. Edwin Buss, Latoya Lane, & Nathan Walters, 36 N.E.3d 1089 (Ind. Ct. App. 2015).
“Ind.Code § 34-13-3-5(a). To sue a government employee personally, the plaintiff “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; (4) willful and wanton; or (5)…”
— Ind. Code § 34-13-3-5(c)(1) — 1 case
— Ind. Code § 34-13-3-5(c)(2) — 2 cases
— Ind. Code § 34-13-3-5(c)(3) — 2 cases
— Ind. Code § 34-13-3-5(c)(4) — 2 cases
— Ind. Code § 34-13-3-5(d) — 2 cases
Bushong v. Williamson, 760 N.E.2d 1090 (Ind. Ct. App. 2001).
“Upon appeal, the Bushongs present the following issues which we restate: (1) Whether a trial court may rely upon documents outside the Complaint in determining if the Complaint alleges that the Defendant's acts were within the scope of employment for purposes of maintaining a…”
— Ind. Code § 34-13-3-5(e) — 4 cases
State v. Evans, 790 N.E.2d 558 (Ind. Ct. App. 2003).
“He urges that Indiana Code § 34-13-3-5, requiring the provision of counsel to a governmental employee "in defense of a claim or suit for a loss occurring because of acts or omissions within the scope of the employee's employment, regardless of whether the employee can or cannot…”
Porter Cnty. Sheriff Dep't v. Guzorek, 857 N.E.2d 363 (Ind. 2006).
“Ind.Code § 34-13-3-5 (2006). Having received the Tort Claims Notice that claimed Officer Falatic was acting within the scope of his employment and then receiving a complaint that did not even mention his employment, they could plausibly conclude that Plaintiffs' counsel, having…”
Land v. Int'l Bus. Machines Corp., 108 F. Supp. 3d 632 (S.D. Ind. 2015).
“Plaintiff explained that in refiling her claims, she “named the state entities responsible for the conduct alleged rather than the individuals who were named in the original federal court complaint, as required by Ind.Code § 34-13-3-5.” The substance of Plaintiffs allegations…”
— Ind. Code § 34-13-3-5(e)(l) — 1 case
— Ind. Code § 34-13-3-5(f) — 2 cases
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