Something New to Consider for TORT Claims Notices for Public Schools

By Chad Hanefeld

Effective July 1, 2018 Indiana adopted Indiana Code 34-13-3.5 – the Claims Against Public Schools Amendment (CAPSA). Notably, it rests just below Indiana Code 34-13-3 – Indiana’s Tort Claims Act. Given its placement within

Indiana Code 34-13, and its title, you might expect that CAPSA would fit hand-in-

glove within the Tort Claims Act and merely set forth more specific requirements

for the assertion of a tort claim against a school. However, CAPSA does nothing of the sort and in fact could serve as a trap for the unwary attorney.

Preparing a Notice of Tort Claim against a school has historically been a straightforward exercise. Indiana Code 34-13-3-10 provides generally that the claimant merely needs to “describe in a short and plain statement the facts on

which the claim is based.” The statute then lists the specific matters that must be

included in the statement (e.g., the time and place of the incident, names of all persons involved, amount of damages sought, and residence of the claimant).

In the situation of, for example, a collision involving a school bus, the claimant would, inter alia, only need to include a general statement setting forth the facts of the collision and a bare assertion that the bus driver acted negligently. Assuming the other elements of Indiana Code 34-13-3-10 have been set forth,

such a Notice would have been sufficient.

CAPSA states that

[a]n individual or entity may not initiate a civil action or an administrative proceeding against a public school, unless the

individual or entity submits a written notice to the public school

and the governing body or the equivalent authority for a charter

school that notifies the public school and the governing body

or the equivalent authority for a charter school of the alleged

violation of law and indicates a proposed remedy. (emphasis

added)

Ind. Code 34-13-3.5-4 CAPSA also requires that the “proposed remedy” must

“[p]rovide the school with a specific request for relief.” Ind. Code 34-13-3.5-5

The requirement that a specific legal violation be alleged, and that a specific

remedy be proposed, are clearly new elements which one trial court has already found to be dispositive in its decision to dismiss a lawsuit against a school. Note that the dismissal was reversed on appeal for impermissible retroactive application of the statute. See Smith v. Franklin Twp. Cmty. Sch. Corp., 2019 Ind. App. Lexis 477; 2019 WL 5778361.

One interesting conflict between the Tort Claims Act and CAPSA is that the Tort

Claims Act provides a school 90 days to respond to a Notice of Tort Claim. Ind. Code 34-13-3-11 CAPSA, on the other hand, gives a school only 15 days to “remedy the alleged violation” or “make a written offer. . . to resolve the dispute.” Ind. Code 34-13-3.5-6

This contradiction, along with the “alleged violation of law” and “proposed

remedy” requirements, demonstrates that CAPSA was not intended to apply

to tort claims. As a preliminary matter, CAPSA’s “alleged violation of law”

requirement is obviously dubious in the tort context given that tort claims are

typically pursued under common law. But it is CAPSA’s focus on a “remedy” that brings the true intent of CAPSA into focus.

Schools are governed by a myriad of federal and state laws, some of which

impose very specific requirements. As an example, Indiana Code 20-30-5-4.5

allows students the right to free exercise of their religion. If a student felt that he or she was being denied the right to freely exercise his or her religion, then the existence and utilization of CAPSA, with its “alleged violation of law” and “proposed remedy” provisions, makes sense. Such a claim (A) would not be a

tort, (B) would be based on a specific “violation of law,” and (C) would lend itself

to a specific “proposed remedy.” A student could allege that a school violated

Indiana Code 20-30-5-4.5, and could propose the specific remedy that the school

observe a moment of silence, in compliance with the statute.

This non-tort scenario would give meaning and purpose to CAPSA as it would provide a roadmap for the assertion and resolution of a non-tort claim. Unfortunately, as CAPSA is written, there is no statutory distinction between this scenario and the negligent school bus operation scenario.

There is also historical evidence that CAPSA was adopted to address nontort claims. Prior to the passage of CAPSA a student asserted a claim against her school system that a transportation fee was in violation of the Indiana Constitution. Indiana’s Court of Appeals noted that the Tort Claims Act’s notice

requirement did not apply to the transportation fee dispute because it was not a

“tort claim.” Hoagland v. Franklin Twp. Cmty. Sch. Corp., 10 N.E.3d 1034, 10391040 (Ind.App.2014) (aff’d, 27 N.E.3d 737 (Ind.2015))

Subsequent to the Hoagland decision CAPSA was passed. In this context, it is clear that CAPSA was a reaction to Hoagland. With the passage of CAPSA,

Indiana extended the notice requirement to non-tort claims.

Even though it is clear that CAPSA was not intended to apply to tort claims, in order to make sure that you are in full compliance with both the Tort Claims Act and CAPSA you need to supplement your standard Notice of Tort Claim with an

additional assertion regarding the “alleged violation of law.” In the case of an alleged violation of common law in a negligence action, the Notice of Tort Claim should state something to the effect that the claimant asserts that the school and/ or its employee violated Indiana common law regarding negligence. Additionally, if there is an alleged violation of law – Indiana Code Title 9 (motor vehicles) for

example – then the Notice of Tort Claim must identify the specific statute alleged

to be violated.

Modifying your standard Notice of Tort Claim to comply with the “remedy”

requirement of CAPSA may be a little trickier. Section 4 merely requires a

“proposed remedy.” However, section 5 requires a “specific request for relief.”

To satisfy the “proposed remedy” requirement, a simple statement that the

claimant proposes that the school pay financial compensation for damages would

seem to suffice. Whether section 5’s requirement of a “specific request for relief”

requires a specific dollar amount is untested. Since there appears to be no penalty

for the assertion of an unreasonable dollar amount, safe practice would dictate that a claimant explicitly seek the maximum statutory amount.

CAPSA, and its harmonization with the Tort Claims Act, is clearly a work in progress. Until that uncertainty is resolved, we need to be mindful that our Notice of Tort Claim is fully in compliance with both CAPSA and the Tort Claims Act. A special thanks to Jim Fisher for sharing with me the excellent appellate brief he

and Debra Miller filed in the Smith case, supra.

Chad Hanefeld operates Hanefeld Law Firm where he focuses his practice in the areas of personal injury, wrongful death, and construction-site injury litigation. Chad graduated from Indiana University, Bloomington, and Indiana University School of Law, Indianapolis.