Melody Barrows v. State of Indiana (mem. dec.)

M
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                          Dec 28 2020, 10:12 am

court except for the purpose of establishing                                            CLERK
                                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                                Court of Appeals
                                                                                         and Tax Court
estoppel, or the law of the case.


APPELLANTS PRO SE                                        ATTORNEYS FOR APPELLEES
Melody Barrows                                           Curtis T. Hill, Jr.
Nicholas Barrows                                         Attorney General of Indiana
Peru, Indiana                                            Frances H. Barrow
                                                         Aaron T. Craft
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Melody Barrows, et al.,                                  December 28, 2020
Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                         20A-CT-563
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana, et al.,                                The Honorable Thomas J. Alevizos,
Appellees-Defendants.                                    Judge
                                                         Trial Court Cause No.
                                                         46C01-1604-CT-598



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020           Page 1 of 19
                                               Case Summary
[1]   When Cole Lane (“Lane”) was incarcerated in the Indiana Department of

      Correction (“the DOC”), he was targeted by a prison gang and physically

      injured. The gang also extorted protection monies from Lane’s mother and

      stepfather, Melody and Nicholas Barrows (“Melody” and “Nicholas,” at times,

      collectively “the Barrows”). Lane and the Barrows filed suit against the State of

      Indiana, the DOC, Corizon (a contracted health care provider), and individual

      DOC employees. The complaint alleged claims of negligence, intentional

      infliction of emotion distress, and violations of Lane’s civil rights. Corizon

      removed the case to federal court, Lane settled his claims, and the matter was

      remanded to state court for trial of the Barrows’ claims for negligence and

      intentional infliction of emotional distress.1 Summary judgment was granted to

      all defendants. The Barrows now appeal, pro-se. We affirm.



                                                         Issues
[2]   The Barrows present the following restated issues for review:


                 I.       Whether the trial court improvidently granted summary
                          judgment to the defendants on the intentional infliction of
                          emotional distress claims; and




      1
          Corizon was dismissed as a defendant and is not a party to these state claims.


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020     Page 2 of 19
              II.     Whether the trial court improvidently granted summary
                      judgment to the defendants on the negligence claims.


                            Facts and Procedural History
[3]   In 2011, Joseph Hiles (“Hiles”) called Melody, claiming that he had Lane tied

      up and would release him upon payment of $250.00. The Barrows paid

      $250.00 to Hiles and Lane was released, but Melody reported the incident to

      police. Hiles was subsequently convicted of kidnapping and was sent to

      Westville Correctional Facility (“Westville”). Lane and Melody obtained a no-

      contact order to prohibit Hiles from contacting either of them.


[4]   In 2013, Lane was sentenced to serve time in the DOC, and Melody pre-

      emptively called the DOC Reception Diagnostic Center to advise of the no-

      contact order. DOC personnel told Melody that Lane was classified as a low-

      level offender and prisoners of this classification were typically not housed at

      Westville. Melody was assured that the no-contact order and an internal DOC

      order for separation were of record. Notwithstanding expectations, Lane was

      sent to Westville.


[5]   Shortly after Lane’s arrival at Westville in September of 2013, Melody received

      a call from an individual claiming to be a member of the same gang as Hiles.

      He demanded money not to tell Hiles that Lane was at Westville. Next,

      different individuals purporting to be gang members began calling Melody

      almost daily. Melody was typically instructed to buy a pre-paid debit card and




      Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 3 of 19
      give the card numbers to the next caller. She and Nicholas complied with the

      demands until they were out of funds.


[6]   On November 14, 2013, a person identifying himself as “Buddha” called

      Melody and told her that “there was a price on Cole’s head.” (Appellee’s App.

      at 13.) Two days later, “Buddha” called back to demand $1,500.00 or Lane

      would be stabbed. Depleted of cash, the Barrows offered “Buddha” a vehicle

      they estimated to be worth $1,500.00 to $2,000.00. “Buddha” sent his mother

      to a repair shop in Peru, Indiana, where Melody surrendered the vehicle and

      keys. Melody later mailed the vehicle title to an address provided to her.

      Despite the Barrows’ compliance with many demands, Lane was beaten on

      multiple occasions.


[7]   Lane was transferred to Plainfield Correctional Facility (“Plainfield”), but the

      demands for money from the Barrows continued. In April of 2014, Lane was

      walking from the cafeteria when he was ambushed and beaten by six inmates.

      He was provided medical treatment (albeit allegedly minimal and delayed),

      placed in protective custody, and transferred to the New Castle Correctional

      Facility (“New Castle”). After Lane’s transfer to New Castle, the Barrows

      considered him to be safely housed and did not comply with any further

      demands for money.


[8]   During these events, the Barrows did not contact law enforcement. But they

      hired an attorney, who sent a letter dated November 25, 2013 addressed to

      Mark Levenhagen (“Levenhagen”), the Westville superintendent, and to the


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 4 of 19
       Commissioner of the DOC. The letter detailed the extortion scheme and past

       violence against Lane. Additionally, Melody initiated numerous telephonic

       and e-mail contacts with DOC personnel.


[9]    Melody had two telephone conversations discussing the situation with Sharon

       Hawk (“Hawk”), whom Melody understood to be an educational director at a

       Westville dorm. In November of 2013, Melody called Larry Steinbeck

       (“Steinbeck”), a captain at Westville. Melody reported that Lane had been

       “jumped” and beaten, and she asked that Lane be placed in protective custody

       (Id. at 12.) Melody advised Steinbeck that she had Lane’s “power-of-attorney,”

       but Steinbeck responded that Lane needed to personally request protective

       custody. (Id.) Melody had “a string of” e-mail and telephone contacts with

       Marshall Hayes (“Hayes”), of the DOC Internal Affairs Division. (Id. at 16.)

       Melody disclosed the history of extortion and violence, and Hayes stated that

       he would “get to the bottom of it” and “it would cease.” (Id. at 19.) Melody

       spoke with Hayes a final time after Lane was injured at Plainfield. She also had

       a telephone conversation with a Plainfield captain, Nathan Lagenour

       (“Lagenour”), to check on Lane’s condition after the beating that took place in

       that facility.


[10]   On March 30, 2016, Lane and the Barrows filed a Complaint, naming as

       defendants the State of Indiana, the DOC, Westville, Plainfield, Corizon,

       Levenhagen, Hawk, Steinbeck, Lagenour, Hayes, and three other individuals

       alleged to be DOC employees. Because Lane claimed that his civil rights had

       been violated, the case was removed to federal court. Lane settled his claims

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 5 of 19
       against all defendants and, on July 25, 2017, the United States District Court,

       Southern District of Indiana remanded the case to state court for trial of the

       Barrows’ claims.


[11]   On August 31, 2018, the defendants filed a motion for summary judgment and

       designation of materials. On October 31, 2018, the Barrows filed a response in

       opposition to the motion for summary judgment. On February 25, 2019, the

       trial court conducted a summary judgment hearing, at which argument of

       counsel was heard regarding whether the defendants had a duty to act to

       prevent extortion of an inmate’s family members.


[12]   On November 25, 2019, the trial court entered an order granting summary

       judgment to all defendants. The trial court determined that the individual

       defendants were immune from liability under the Indiana Tort Claims Act (“the

       Act”)2 and the government entities did not owe the Barrows a duty of care.

       Additionally, the trial court’s order stated that the designated evidence revealed

       no contributory negligence by the Barrows, nor did it reveal an act that would

       amount to intentional infliction of emotional distress. The Barrows filed a

       motion to correct error, which was deemed denied. They now appeal.




       2
           Ind. Code § 34-13-3-1, et seq.


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 6 of 19
                                 Discussion and Decision
                      Summary Judgment Standard of Review
[13]   We review summary judgment de novo, applying the same standard as the trial

       court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment

       is appropriate “if the designated evidentiary matter shows that there is no

       genuine issue as to any material fact and that the moving party is entitled to a

       judgment as a matter of law.” Ind. Trial Rule 56(C). We construe the evidence

       in favor of the nonmovant and resolve all doubts against the moving party.

       Pfenning v. Lineman, 947 N.E.2d 392, 397 (Ind. 2011) (quotation omitted). The

       party moving for summary judgment bears the initial burden to establish its

       entitlement to summary judgment. Id. at 396–97. Only then does the burden

       fall upon the nonmoving party to set forth specific facts demonstrating a

       genuine issue for trial. Id. at 397 (quotation omitted).


[14]   When the moving party is the defendant, the defendant must show that the

       undisputed facts negate at least one element of the plaintiff’s cause of action or

       that the defendant has a factually unchallenged affirmative defense that bars the

       plaintiff’s claim. Dible v. City of Lafayette, 713 N.E.2d 269, 272 (Ind. 1999). The

       summary judgment process is not a summary trial. Hughley, 15 N.E.3d at

       1003–04. Indiana consciously errs on the side of letting marginal cases proceed

       to trial on the merits, rather than risk short-circuiting meritorious claims. Id. at

       1004. Nevertheless, a grant of summary judgment is clothed with a

       presumption of validity, and the appellant bears the burden of demonstrating


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 7 of 19
       that the trial court erred. Kramer v. Catholic Charities of Diocese of Fort Wayne-

       South Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).


                   Intentional Infliction of Emotional Distress
[15]   Count II of the Complaint, denominated “Intentional Infliction of Emotional

       Distress,” alleged as follows:


               Defendants, State of Indiana, Indiana Department of
               Corrections, Westville Correctional Facility, Plainfield
               Correctional Facility, Sharon Houck, Larry Steinbeck, Marshall
               Hayes, Charles Whelan, Hector Valdez, Nathan Lagenour, Craig
               Gage, acted willfully and intentionally to cause emotional
               distress [to] Plaintiffs, which proximately caused damages to
               them. WHEREFORE, Plaintiffs request judgment against all
               Defendants[.]


       (App. Vol. II, pg. 40.) Although the Barrows contend that summary judgment

       was improperly granted, they do not specifically address whether or not an

       element of their intentional tort claim was negated. Instead, they argue only

       that a special relationship was formed when Melody sought help from DOC

       staff and received certain assurances. The individual defendants claim to have

       public employee immunity under the Act and the government entities argue

       that, as a matter of law, the conduct of DOC employees does not constitute




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 8 of 19
       intentional infliction of emotional distress, for which the government entities

       could be vicariously liable.3


[16]   The tort of intentional infliction of emotional distress was first recognized as a

       separate cause of action without the need for an accompanying tort in Cullison v.

       Medley, 570 N.E.2d 27 (Ind. 1991). In Cullison, our Supreme Court defined the

       tort of intentional infliction of emotional distress as: “‘one who by extreme and

       outrageous conduct intentionally or recklessly causes severe emotional distress

       to another is subject to liability for such emotional distress ....’” Id. at 31

       (quoting Restatement (Second) of Torts § 46 (1965)). It is the intent to harm the

       plaintiff emotionally which constitutes the basis for this tort, the elements of

       which are that the defendant: (1) engages in extreme and outrageous conduct

       (2) which intentionally or recklessly (3) causes (4) severe emotional distress to

       another. Lachenman v. Stice, 838 N.E.2d 451, 456 (Ind. Ct. App. 2005) (citing

       Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 523 (Ind. Ct. App.

       2001)). “The requirements to prove this tort are rigorous.” Id. Intentional

       infliction of emotional distress is found where conduct “exceeds all bounds

       usually tolerated by a decent society and causes mental distress of a very serious




       3
         Vicarious liability of an employer is premised upon the relationship between employer and employee, as
       opposed to wrongdoing on the part of the employer. See Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107 (Ind. Ct.
       App. 2014). Tortious acts are outside the scope of employment when they flow from a course of conduct that
       is independent of activities that serve the employer. Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 462 (Ind.
       2018). “[T]he scope of employment—which determines whether the employer is liable—may include acts
       that the employer expressly forbids; that violate the employer’s rules, orders, or instructions; that the
       employee commits for self-gratification or self-benefit; that breach a sacred professional duty; or that are
       egregious, malicious, or criminal.” Id. at 461.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020                   Page 9 of 19
       kind.” Id. at 457. “In the appropriate case, the question can be decided as a

       matter of law.” Id.


[17]   The Complaint, inclusive of factual assertions related to now-settled claims,

       averred that Lane was deprived of adequate protection and proper medical

       treatment. As to the facts in relation to the Barrows, the Complaint asserted

       that they “were sent ransoms for Cole’s safety” and were “compelled to make

       payments to gang members.” (App. Vol. II, pg. 39.)


[18]   Deposition testimony, designated as summary judgment evidence, reveals the

       interactions upon which the Barrows base their intentional infliction of

       emotional distress claims. Two of the named individuals are not known to the

       Barrows; a third was referenced as possibly working in the DOC Internal

       Affairs Division. As to Levenhagen, he was the named recipient of a letter

       from the Barrows’ attorney but did not change Lane’s housing in response to

       the letter. As to Hawk, she engaged in two telephone conversations with

       Melody but apparently was not empowered to change Lane’s dorm assignment.

       When speaking with Steinbeck, Melody requested protective custody for Lane;

       Steinbeck did not arrange this. He was, in Melody’s opinion, rude. Hayes

       assured Melody, in their e-mail conversation, that he would investigate the

       circumstances surrounding Lane’s injuries and get the conduct stopped. But

       Melody did not think that he had done anything to fulfill his promises.

       Lagenour engaged in a telephone conversation with Melody to report on Lane’s

       physical condition after the beating. Melody opined, in her deposition, that



       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 10 of 19
       Lagenour should have obtained more extensive treatment of Lane’s injuries

       than an ice pack and ibuprofen.


[19]   The defendants have not contested the Barrows’ version of events. The

       individually named defendants claim to have public employee immunity under

       the Act. In general, a plaintiff may not maintain an action against a public

       employee if the employee was acting within the scope of his or her

       employment. Feldhake v. Buss, 36 N.E.3d 1089, 1093 (Ind. Ct. App. 2005)

       (citing Indiana Code Section 34-13-3-5(a)). The Act expresses a legislative

       policy to protect the State’s finances while ensuring that public employees can

       exercise their independent judgment necessary to carry out their duties without

       the threat of litigation over decisions made within the scope of their

       employment. Noble Cnty. v. Rogers, 745 N.E.2d 194, 197 (Ind. 2001).


               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.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 11 of 19
               The complaint must contain a reasonable factual basis supporting
               the allegations.


       Ind. Code § 34-13-3-5(c).


[20]   The Barrows did not comply with the foregoing pleading requirements in

       seeking to impose personal liability upon individual defendants. Instead, the

       Complaint specifically alleged that the individual defendants were acting within

       the scope of their DOC employment, such that the public employer should be

       held vicariously liable.4 When a plaintiff fails to comply with statutory pleading

       requirements and does not cure the defect with an amended complaint, the

       claim against the employee is barred and summary judgment is appropriate.

       Feldhake, 36 N.E.3d at 1093. Here, the individual defendants are entitled to

       summary judgment on the claims for intentional infliction of emotional distress.

       We turn to consider the allegations of vicarious liability and whether the

       government entities are entitled to summary judgment.


[21]   According to the designated deposition testimony and responses to

       Interrogatories, the Barrows suffered great emotional distress from learning that

       Lane was injured and also being subjected to an extortion scheme. They

       asserted that the extortion scheme would have been thwarted earlier had DOC




       4
         The named defendant Hector Valdez is an exception. The DOC did not employ a person named Hector
       Valdez and Melody conceded in her deposition that she had used incorrect information in naming this
       defendant. She had once believed that an employee named Hector Valdez took possession of debit card
       information supplied by the Barrows and had used it for his own purposes. By the time of her deposition,
       Melody believed that the act had been committed by a prison guard whom she could not identify.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020              Page 12 of 19
       employees acted more diligently in the performance of their duties.

       Considering the facts in the light most favorable to the Barrows as the non-

       moving party, DOC employees at times made certain assurances to Melody.

       But they did not promptly segregate Lane at Melody’s request; some were less

       than empathetic with her circumstances. At bottom, very little action was taken

       to avoid continuation of reported harms.


[22]   That said, we can conclude as a matter of law that the actions or inactions

       complained of do not constitute “outrageous” behavior as contemplated by the

       narrow definition of the tort of intentional infliction of emotional distress.

       There may have been apathy, negligence, or false promises, but we cannot say

       that it was so extreme in degree as to go beyond all possible bounds of decency,

       such that it would be regarded as atrocious and utterly intolerable in a civilized

       society. See Bradley v. Hall, 720 N.E.2d 747, 752–53 (Ind. Ct. App. 1999).

       Moreover, there is nothing in the record which would support a reasonable

       inference that DOC employees intended to cause the Barrows emotional

       distress. See Cullison, 570 N.E.2d at 31 (recognizing intent to cause emotional

       harm to plaintiff as the basis for the tort of intentional infliction of emotional

       distress). Under these circumstances, an employer could not be vicariously

       liable under this tort theory. The trial court did not err in granting summary

       judgment to the government entities upon the Barrows’ claims of intentional

       infliction of emotional distress.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 13 of 19
                                                Negligence
[23]   The Complaint also alleged negligence by the government entities, as follows:


               Defendants, State of Indiana, Indiana Department of
               Corrections, Westville Correctional Facility, and Plainfield
               Correctional Facility, did breach the standard of care to protect
               the interests of Melody and Nicholas Barrows, which
               proximately caused damages to them.


       (App. Vol. II, pg. 40.) To recover on a negligence claim, a plaintiff must

       establish: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that

       duty; and (3) injury to the plaintiff resulting from the defendant’s breach. Miller

       v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19 (Ind. Ct. App. 2015).


[24]   Summary judgment is rarely appropriate in negligence cases because such cases

       are particularly fact-sensitive and are governed by a standard of the objective

       reasonable person, which is best applied by a jury after hearing all the evidence.

       Kramer, 32 N.E.3d at 231. However, summary judgment for a defendant is

       appropriate if the moving party negates at least one element of the negligence

       claim. American Legion Pioneer Post No. 340 v. Christon, 712 N.E.2d 532 (Ind. Ct.

       App. 1999). Absent a duty, there can be no breach and no recovery in

       negligence. Sheley v. Cross, 680 N.E.2d 10, 12 (Ind. Ct. App. 1997), trans. denied.

       Generally, the court decides as a matter of law whether a duty exists. Spears v.

       Blackwell, 666 N.E.2d 974, 977 (Ind. Ct. App. 1996), trans. denied.


[25]   Here, the trial court concluded that the government entities had no duty to the

       Barrows, reasoning that the Barrows were not in the care or control of the DOC

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 14 of 19
       and public entities were not responsible to the Barrows for prevention of crime

       within a penal facility. The government entities argue that there is no

       recognized duty to prevent economic harm to parents of prisoners because of

       other inmate conduct, and that the recognition of such a duty would be

       contrary to public policy because it would impose an unduly onerous burden on

       penal facilities. The Barrows argue only that Melody’s interactions with DOC

       staff gave rise to a special relationship. They observe: “DOC was in control of

       Cole Lane and his safety, as well as Hiles and his offender incarcerated gang

       members (extortionists); therefore, DOC was in the best position to enforce the

       non-contact order and cease the extortion and assaults.” Appellant’s Brief at

       13.


[26]   Without dispute, the DOC had a duty to Lane. The duty of a custodian of

       inmates is “to exercise reasonable care to preserve the life, health, and safety of

       the person in custody.” Sauders v. Cnty. of Steuben, 693 N.E.2d 16, 18 (Ind.

       1998). The duty does not extend to taking action to prevent a particular act, for

       example, suicide. Id. Rather, the custodian’s duty “is to take reasonable steps

       under the circumstances for the life, health, and safety of the detainee.” Id. As

       we have stated:


               public policy considerations require that the DOC not be made
               an absolute insurer of prisoners’ safety. Although the DOC is
               not a guarantor, neither has it been relieved of all responsibility
               for safekeeping its charges. Rather, the DOC’s responsibility
               takes the middle ground: it has the duty “to take reasonable
               precautions to preserve the life, health, and safety of prisoners.


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 15 of 19
       Cole v. Ind. Dep’t of Corr., 616 N.E.2d 44, 45-46 (Ind. Ct. App. 1993) (quoting

       Reed v. State, 479 N.E.2d 1248, 1254 (Ind. 1985)), trans. denied. “Because of the

       DOC’s unusual ability to control all aspects of its prisoners’ lives, the DOC’s

       duty to take reasonable precautions may include an obligation to control the

       conduct of third persons.” Id. at 46. See also Williams v. Ind. Dep’t of Correction,

       142 N.E.3d 986, 1008 (Ind. Ct. App. 2020) (recognizing that the DOC owes a

       duty to ensure that its contractors provide appropriate medical care for

       inmates). Here, any claims arising from a breach of DOC duty to Lane were

       settled.


[27]   The Barrows were not under the control of the DOC. They do not argue that

       Indiana has recognized a duty on the part of the DOC to act to prevent

       pecuniary harm to family members of a person in custody. Nor do they address

       the merits of extending the duty owed to those in custody to family members of

       those in custody. Rather, the Barrows claim there is a duty here because of a

       “special relationship” which arose when Melody “informed DOC of the no-

       contact order” and “the extortion that was paid to keep her son alive and safe.”

       Appellant’s Brief at 9.5 According to the Barrows, Melody was repeatedly given




       5
         Arguably, the DOC was in a “special relationship” with Lane, consistent with the Restatement (Third) of
       Torts Phys. & Emot. Harm § 41 (2012), which provides in relevant part: “An actor in a special relationship
       with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise
       within the scope of the relationship. Special relationships giving rise to the duty provided in Subsection (a)
       include: … (2) a custodian with those in its custody[.]” Comment c provides in part: “The duty imposed by
       this Section is to exercise reasonable care under the circumstances. It is not to ensure that the other person is
       controlled.”

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020                   Page 16 of 19
       assurances of DOC action and she “detrimentally relied on the DOC staff to

       take care of it as they had assured her they would.” Id.


[28]   Where a duty has not been articulated, Indiana courts use a three-part

       balancing test to determine whether or not a duty exists. Goodwin v. Yeakle’s

       Sports Bar and Grill, Inc., 62 N.E.3d 384, 387 (Ind. 2016). The focus is upon (1)

       the relationship between the parties; (2) the foreseeability of harm; and (3)

       public policy concerns. Id.


[29]   To the extent that there was a relationship here, it was related to Lane’s

       incarceration and consisted of communication between Melody and some DOC

       employees. The minimal relationship militates against the imposition of a duty.


[30]   Foreseeability in the context of duty involves the assessment of ‘“whether there

       is some probability or likelihood of harm that is serious enough to induce a

       reasonable person to take precautions to avoid it.”’ Id. at 392 (quoting

       Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 367 (Tenn. 2008)). The

       inquiry involves a general analysis of “the broad type of plaintiff and harm

       involved, without regard to the facts of the actual occurrence.” Id. at 393.

       Here, the broad type of plaintiff is a family member of a prison inmate and the

       harm under consideration is extortion of a family member by a prison gang.

       Although we can readily conclude that the plotting and commission of crime

       within prison walls is likely, we do not reach the same conclusion with respect

       to the likelihood of an ongoing extortion scheme directed to inmate family

       members.


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 17 of 19
[31]   Finally, we consider the public policy aspect. The government entities argue:


               It would be against public policy to extend the [DOC]’s duty of
               care to the general public or families of incarcerated persons;
               such would create virtually limitless liability for the [DOC] and
               open the floodgates of litigation. In all practicality, it would be
               virtually impossible and extremely burdensome for the [DOC] to
               owe a duty to each family member of every inmate. Further, the
               policy behind imposing a duty on the DOC to protect its inmates
               is because those inmates do not have access to forms of self-
               protection and police protection that they would have on the
               outside.


       Appellee’s Brief at 24-25. We find this argument persuasive. Although the

       circumstances of incarceration justify a duty of care on the part of the custodian

       to the inmate, these circumstances do not extend to family members. Persons

       who are not incarcerated have access to law enforcement resources; the DOC

       should not be obliged to foresee that some individuals will choose not to access

       those resources. Balancing the factors relative to the recognition of a duty of

       the government entities to the Barrows, we conclude as a matter of law that

       there is no such duty.



                                               Conclusion
[32]   Summary judgment was properly granted to the individual defendants and

       public entities upon the claims for intentional infliction of emotional distress.

       Summary judgment was properly granted to the public entities upon the claims

       of negligence.



       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 18 of 19
[33]   Affirmed.


       Robb, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-563 | December 28, 2020   Page 19 of 19

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