Ayres v. Indian Heights Volunteer Fire Dept., Inc., 2-584-A-146

Citation482 N.E.2d 732
Decision Date09 September 1985
Docket NumberNo. 2-584-A-146,2-584-A-146
PartiesThomas AYRES and Helen Ayres, Appellants (Plaintiffs Below), v. INDIAN HEIGHTS VOLUNTEER FIRE DEPARTMENT, INC. and Billy D. Myers, Trustee of Taylor Township, Howard County, Indiana, Appellees (Defendants Below).
CourtCourt of Appeals of Indiana

Edward S. Mahoney, Lacey, O'Mahoney, Mahoney, Angel & Jessup, Kokomo, for appellants.

Daniel J. Harrigan, Bayliff Harrigan Cord & Maugans, P.C., Kokomo, for appellee Indian Heights Volunteer Dept., Inc.

Sally A. Papacek, Andrews & Papacek, Kokomo, for appellee Billy D. Myers, Trustee of Taylor Tp., Howard County, Ind.


Helen and Thomas Ayres (Ayreses) appeal from an entry of summary judgment for the defendants, Indian Heights Volunteer Fire Department, Inc. (Fire Department) and Billy D. Myers, Trustee of Taylor Township, Howard County, Indiana (Trustee). The Ayreses present the following two issues:

(1) Whether the trial court erred by converting the defendants' motions to dismiss into motions for summary judgment without giving prior notice to the Ayreses; and

(2) Whether the defendants are immune from liability for allegedly negligent actions in fighting a fire under the doctrine of governmental immunity.

Ayreses sued the Fire Department for its alleged negligence in fighting a fire in which Ayreses lost their garage and its contents. Trustee was sued for allegedly violating his statutory duty to furnish the owners of real estate within his jurisdiction reasonable and safe fire protection. In their complaint, filed September 7, 1983, the Ayreses alleged:

"1. On the 20th day of January, 1983, at or about 10:30 A.M., plaintiffs had a fire in their enclosed Ford truck in the driveway of their residence, 5206 Algonquin Trail, Kokomo, Indiana.

2. The Defendant, Indian Heights Volunteer Fire Department, was called by a neighbor of Plaintiffs and upon arrival at the scene told a neighbor who was extinguishing the fire with his hand extinguisher to get out of the way; whereupon the firemen sprayed a large fire extinguisher into the rear of the truck with such force that it blew the burning materials out of the truck and against the fiberglas [sic] door of Plaintiffs' garage causing it to burn.

3. Said firemen had a large fire hose, but were unable to get it to work until after setting the garage door afire; then, when they got the hose working, they ignored the request of Plaintiff Helen Ayres to enter the service entrance and spray from the inside so as to keep the fire from entering the garage where Plaintiffs had stored valuable merchandise; instead, they sprayed from the outside, blowing the fire from the burning door into the garage and totally destroying the garage and its contents.

* * *

* * *

5. The Defendant, Billy D. Myers, Trustee of Taylor Township, Howard County, Indiana, is made a party Defendant to this action because of his statutory duty to furnish the owners of real estate within his jurisdiction with reasonable and safe fire protection." Record at 15-16.

On September 20, 1983, the Fire Department filed its answer to the complaint denying the general allegations and also filed a Trial Rule 12(B)(6) motion to dismiss based upon the doctrine of governmental immunity alleging that its actions were discretionary functions for which the Indiana Tort Claims Act provides immunity. I.C. 34-4-16.5-3(6) (Burns Code Ed.Supp.1984). In his answer three days later, Trustee admitted his statutory duty to provide fire protection but denied that he had breached that duty. Trustee also accompanied his answer with a motion to dismiss under Trial Rule 12(B)(6).

On October 12, 1983, Ayreses filed interrogatories to each defendant inquiring as to the existence and for the production of any written contract for fire protection. On November 16 and 17, 1983, the defendants

filed answers to these interrogatories admitting the existence of such a contract and producing copies of it. On December 15, 1983, the trial court heard arguments on the motions to dismiss and on January 17, 1984, the court entered the following judgment:


Court having taken under advisement the defendants' motions to dismiss, and having considered the answers to interrogatories filed herein, the Court now finds that this matter is a motion for summary judgment pursuant to Trial Rule 56. Further, the Court finds that there are no material issues of fact and Court now orders summary judgment for the defendants, and each of them, and against the plaintiffs herein. Costs to the plaintiffs.


The parties correctly argue that the Indiana Tort Claims Act provides for immunity from suit for the performance of a discretionary function. The defendants argue that the City of Hammond v. Cataldi [(1983) 3d Dist., Ind.App.] 449 N.E.2d 1184, provides a definition of 'discretionary function' along with other cites given dealing with prosecuting attorneys and others.

In the instant case, the Indian Heights Volunteer Fire Department contracted with the Taylor Township Trustee to provide fire protection. The determination by the Township Trustee of the provider of the service and the contract entered was a ministerial function of defendant trustee. Once the contract is completed and the Volunteer Fire Department enters into the general performance of the contract, the manner of providing fire protection is also a ministerial function. This however can be distinguished from the manner in which the particular fire is combatted, which is a discretionary function, by the fact that all fires are different and require separate and distinct judgments as to the proper manner of combatting. Therefore, improperly fighting a fire does not give rise to liability on the part of the Volunteer Fire Department or the Township Trustee as such was a discretionary function as concerns that particular fire.


s/ Dennis H. Parry




Record at 67-68.


Ayreses contend that the trial court improperly converted the defendants' motions to dismiss for failure to state a claim under Trial Rule 12(B)(6) into motions for summary judgment under Trial Rule 56. They claim that they first received notice of this conversion upon receipt of the court's judgment. The Ayres argue that while a trial court may treat a motion to dismiss as a motion for summary judgment by considering matters outside the pleadings, it must abide by the provisions of Trial Rule 56 which mandate that the trial judge give the parties ten (10) days notice that a hearing will be conducted upon the summary judgment motion.

Ayreses present the same basic argument encountered by the First District of this Court in Carrell v. Ellingwood (1981) 1st Dist.Ind.App., 423 N.E.2d 630. We find that panel's analysis of the inter-relationship between the two trial rules persuasive:

"The provision of T.R. 56(C) quoted above [ten day notice of hearing] was designed for the usual situation where the motion was filed as a motion for summary judgment which would generally contain supporting materials. That a hearing date is to be set prospectively serves to allow sufficient time for the opposing party to file his matters in opposition to the motion, as well as the usual purposes of allowing time for preparation for any hearing. A peremptory ruling on a motion for summary judgment Indeed, Trial Rule 12(B) specifically provides for the conversion of a motion to dismiss into a motion for summary judgment and for the time period in which the parties may respond to such a conversion:

                is not intended.  However, where a court treats a motion to dismiss under T.R. 12(B)(6) as a motion for summary judgment under T.R. 56, as here exists, a slightly different circumstance is posed and a different rule is invoked.  T.R. 12(B)(8) requires the court, in such circumstances, to grant the parties 'a reasonable opportunity to present all material made pertinent to such a motion by Rule 56.'   Failure to do so is reversible error.  Foster v. Littell, (1973) 155 Ind.App. 627, 293 N.E.2d 790."  423 N.E.2d at 634

"If, on a motion, asserting the defense number [12(B)] (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

In Carrell, supra, 423 N.E.2d 630, and Foster v. Littell, supra, 293 N.E.2d 790, the trial courts considered matters outside the pleadings and converted the 12(B)(6) motions into motions for summary judgment without holding hearings or giving the parties notice that they were doing so. In both instances this was held reversible error because the trial courts did not allow the opposing parties a "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Ind.Rules of Procedure, Trial Rule 12(B)(8). The question thus becomes whether the trial court here presented Ayreses with such an opportunity.

The court held a hearing upon the defendants' motions and while it is clear from the transcript that all parties and the court referred to the hearings as one upon the motions to dismiss, it is also apparent that the court and the parties treated the hearing as the functional equivalent of a hearing on motions for summary judgment. The trial court, in opening the hearing, specifically called for the submission of "any evidence" or argument. Record at 95. The record before us reveals that Ayres filed with the trial court interrogatories and request for production of documents. Both defendants filed answers to these interrogatories and produced the written contract requested. All parties referred to these answers and the contract...

To continue reading

Request your trial
8 cases
  • Thiele v. Faygo Beverage, Inc.
    • United States
    • Indiana Appellate Court
    • February 24, 1986
    ...471 N.E.2d 1187; McEntire v. Indiana National Bank (1984) 4th Dist. Ind.App. 471 N.E.2d 1216." Ayres v. Indian Heights Volunteer Fire Dept. (1985), Ind.App., 482 N.E.2d 732, 737-38. As noted earlier in this opinion, Section 3 of the 1978 Product Liability Act "codified and restated" the com......
  • Benton v. City of Oakland City
    • United States
    • Indiana Supreme Court
    • December 29, 1999
    ...have considered the special duty concept in relation to police work.") (citing Simpson's Food Fair); Ayres v. Indian Heights Volunteer Fire Dep't, 482 N.E.2d 732, 740-41 (Ind.Ct.App.1985) (labeling the discussion in Part C of its opinion: "Special or Private Duty" Analysis), vacated, 493 N.......
  • Ayres v. Indian Heights Volunteer Fire Dept., Inc.
    • United States
    • Indiana Supreme Court
    • June 11, 1986
    ...on a Petition to Transfer from the Second District Court of Appeals, brought by Indian Heights Volunteer Fire Department, Inc. Ayres v. Indian Heights Volunteer Fire Dept., Inc. (1985), Ind., 482 N.E.2d 732, reh. denied. Action was initiated by Plaintiffs Thomas Ayres and Helen Ayres agains......
  • Dixon v. Siwy, 49A02-9501-CV-1
    • United States
    • Indiana Appellate Court
    • February 26, 1996
    ...judgment may be affirmed under such circumstances despite a seeming T.R. 56 designation failure.6 Cf. Ayres v. Indian Heights Volunteer Fire Dep't (1985) Ind.App., 482 N.E.2d 732, 735-736 (trial court did not commit reversible error in designating hearing as being on motion to dismiss inste......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT