Count XVII – Failure to Supervise
Count XVII of the First Amended Complaint contains a claim by plaintiffs against Local 395, Williamson and Veach for failure to supervise, based on the allegations that Williamson and Veach, as agents of Local 395, pooled members
together, transported them to the job site, planned and were present during the members’ assault on the plaintiffs, and took no action to prevent the beatings of Kudingo, Weil and Harper and the assault on Lindner.
In opposition to summary judgment on the claim for failure to supervise, Local 395 points out that this cause of action “contradicts the Plaintiffs’ other claims against Local 395 in that those other claims depend essentially on proof that the individual Defendants’ conduct was carried out within the scope of their authority or reasonably in pursuit of an appreciable and rational benefit to the union.”
In their reply, plaintiffs offer no response at all in support of the failure to supervise claim, which may signify their recognition that they cannot recover on alternative causes of action requiring contradictory conclusions.
In light of the mutual exclusivity of the two theories of vicarious liability, and my previous determination of Local 395’s liability because its agents acted within the scope of their employment, summary judgment is inappropriate on Count XVII against any defendant, and will be denied. Emphasis added.]
Count XVIII – Interference with Lawful Occupation
The First Amended Complaint describes Count XVIII as a claim for “Intentional Interference with Right to Pursue a Lawful Occupation.” [DE 67 at 35.] The content of Count XVIII is reminiscent of the allegations made in support of Count II for
“Interference with Prospective Economic Advantage,” although with a focus on the individual plaintiffs’ loss of “substantial numbers of jobs and days of employment,” rather than on D5’s business.
Distinct from Count II, however, is that in upport of their motion for summary judgment on Count XVIII, plaintiffs cite portions of the Indiana Bill of Rights, Art. 1, §§1 and 23, that have been construed to recognize “personal privileges and liberties” including an “individual’s right to engage in a lawful business.”