Ayres v. Indian Heights Volunteer Fire Dept., Inc.

Decision Date11 June 1986
Docket NumberNo. 34S02-8606-CV-575,34S02-8606-CV-575
Citation493 N.E.2d 1229
PartiesThomas AYRES and Helen Ayres, Appellants, v. INDIAN HEIGHTS VOLUNTEER FIRE DEPARTMENT, INC., and Billy D. Myers, Trustee of Taylor Township, Howard County, Indiana, Appellee.
CourtIndiana Supreme Court

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 Fire Dept., Inc.

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

PIVARNIK, Justice.

This cause comes to us 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 against Indian Heights Volunteer Fire Department and the Township Trustee for alleged negligence in fighting a fire in which Plaintiffs lost their garage and its contents. The trial court entered summary judgment in favor of all Defendants and Plaintiffs appealed. The Court of Appeals found the trial court properly converted Defendants' Motions for Summary Judgment without giving prior notice to the Ayres. The Court of Appeals further found the actions of the Trustee of Taylor Township, Howard County, Indiana, Billy D. Myers, involved discretionary functions for which the Indiana Tort Claims Act provides governmental immunity. Ind.Code Sec. 34-4-16.5-3(6) (Burns Supp. 1984). The Court of Appeals correctly disposed of these two issues. The Court of Appeals further found, however, the immunity accorded the township did not extend to the volunteer fire department because the volunteer fire department was an independent contractor. The Court of Appeals reversed the trial court on that issue and ordered summary judgment for that defendant set aside. The Court of Appeals erred in this latter issue and we accordingly grant transfer, vacate the opinion of the Court of Appeals, and affirm the trial court.

The Court of Appeals has well set out and correctly analyzed and decided the fact situation and the issue of the converting of Defendants' Motions to Dismiss into Motions for Summary Judgment. We therefore adopt their language and make it part of this opinion as follows:

"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:

RULING

Court having taken under advisement the defendants' motions to dismiss, and having considered the answers to the 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.

DISCUSSION

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 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.

SO ORDERED THIS 17th DAY OF JANUARY, 1985.

s/ Dennis H. Parry

Dennis H. Parry, Judge,

HOWARD SUPERIOR COURT

Record at 67-68.

I.

"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 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.

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:

'If, on a motion, asserting the defense number [12(B) ] (6), to dismiss...

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