Benton v. City of Oakland City

• Decision Date: 29 December 1999
• Docket Number: No. 26S04-9803-CV-156.,26S04-9803-CV-156.
• Parties: Eva Marie BENTON as Parent and Natural Guardian of Jason K. Wildt, Minor and Jason K. Wildt, Minor, Appellant (Plaintiff below), v. CITY OF OAKLAND CITY, Indiana, Appellee (Defendant below).
• Court: Indiana Supreme Court

721 N.E.2d 224

Eva Marie BENTON as Parent and Natural Guardian of Jason K. Wildt, Minor and Jason K. Wildt, Minor, Appellant (Plaintiff below), v. CITY OF OAKLAND CITY, Indiana, Appellee (Defendant below).

No. 26S04-9803-CV-156.

Supreme Court of Indiana.

December 29, 1999.

Richard C. Rusk, Washington, Indiana, Attorney for Appellant.

Jeffrey W. Henning, James D. Johnson, Evansville, Indiana, Attorneys for Appellee.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

Attempting to rescue his drowning nephew, plaintiff Jason Wildt broke his neck when he dove into shallow water at defendant Oakland City's beach. He appeals lower court determinations that the city owed him no duty to warn of the danger. Finding that those courts incorrectly applied the admittedly confusing precedents governing this area of the law, we hold that the city owed the plaintiff such a duty.

Background

A summary of the facts most favorable to the judgment follows. On June 12, 1994, fourteen-year-old Jason and his mother visited a lakeside beach and swimming facility owned and operated by Defendant Oakland City. This was their first visit. Jason and his mother paid the admission fee the City charges all of its patrons. Sometime during the day, Jason walked to the adjacent parking lot to retrieve refreshments out of his mother's car. Soon thereafter, Jason heard people shouting his nephew's name. All swimmers had been called out of the lake for a brief period of time and then given a signal to return to the water. A stampede ensued and Jason's nephew had either been pushed or had fallen into the water and did not resurface. In response, Jason ran down the embankment from the parking lot, took two running "steps in the water" and dove to search for his nephew. (R. at 29.) No one else was in that area of the lake for Jason to observe the depth of the water and he assumed the water's depth would be equal to that of another area in which he had swum earlier that day. However, because the water was shallow, Jason's head immediately struck the bottom of the lake. Jason suffered a broken neck.

After serving the City with a Notice of Tort Claim, Jason and his mother, Eva Benton, filed a complaint against the City on May 9, 1996, asserting that the City was negligent in its operation of the beach. The City denied all allegations and raised affirmative defenses of immunity under the Indiana Tort Claims Act and contributory fault.¹ Shortly thereafter, the City filed a motion for summary judgment, contending that the City did not owe a "private duty" to Jason. The trial court agreed.²

On appeal, Jason asserted that the City owed him a duty to warn of the danger of diving in a particular area of the lake. The City contended that insofar as it had such a duty, it was a general duty owed to the public and not to Jason individually. The Court of Appeals affirmed the trial court's finding of summary judgment in favor of the City, holding that the City owed no duty to Jason. Benton v. City of Oakland City, 684 N.E.2d 251 (Ind.Ct.App. 1997).

In reaching its decision, the Court of Appeals applied a test that we employed in Mullin v. Municipal City of South Bend, to determine whether a city owed a duty to a victim of a house fire to dispatch an ambulance. 639 N.E.2d 278, 284 (Ind. 1994) (adopting the reasoning of City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861, 863 (1993)). There we held that the city did not have a duty to dispatch an ambulance, in part because there was "no explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party." Id. In this case, the Court of Appeals found that the designated evidence had failed to establish that Oakland City made any explicit assurances to Jason that it would act on his behalf "should he become imperiled." Benton, 684 N.E.2d at 253. "In the absence of a specific assurance," the court found that there can be no "private duty" owed to Jason and thus "no negligence on behalf of Oakland City." Id.

The Court of Appeals also looked at Jason's complaint to determine whether he alleged governmental "nonfeasance" or governmental "malfeasance." This analysis was prompted by Henshilwood v. Hendricks County, 653 N.E.2d 1062 (Ind.Ct. App.1995), transfer denied. Henshilwood holds that the Mullin test only applies where a governmental entity is alleged to have been negligent by failing to act— nonfeasance. Conversely, Henshilwood says that the Mullin test is not to be employed with respect to an "alleged affirmative act of negligence where the [governmental] entity itself has created the plaintiff's perilous situation"—malfeasance. Henshilwood, 653 N.E.2d at 1067. In this case, the Court of Appeals found that Jason's complaint alleged no "affirmative acts of negligence," but instead alleged nine instances of the City's "failure to act." It held that this finding justified the application of the Mullin test. Benton, 684 N.E.2d at 253-54.

Discussion

I

Over the last third of the twentieth century, Indiana courts have enunciated a number of legal principles in the course of deciding tort claims filed against governmental units. Given the substantial number of such cases, perhaps it was inevitable that some of these principles should have become the subject of confusion.

The present case requires us to review three areas of such confusion. First, the cases do not clearly define concepts referred to as a governmental unit's "public duty" and its "private duty." Second, it is difficult to distinguish whether a governmental unit is guilty of "nonfeasance" or "malfeasance," a distinction required in the wake of the decisions in Mullin v. Municipal City of South Bend and Henshilwood v. Hendricks County, transfer denied. And third, the passage and frequent amendment of the Indiana Tort Claims Act³ has led to confusion as to whether common law or statutory law applies to any given case.

A

It is not necessary for purposes of this opinion to give a detailed history of governmental tort liability in Indiana. It is sufficient to observe that while older common law principles immunized governmental units from tort liability, that immunity was abrogated in a series of decisions beginning in the middle of this century.⁴ The last of these decisions was Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972). In Campbell, this Court reflected on the difficulties in distinguishing between "governmental functions" and "proprietary functions"⁵ and concluded that establishing categories of governmental immunity was best left to the legislature. We therefore abrogated the common law doctrine of sovereign immunity in almost all respects. The breadth of its language eliminating sovereign immunity made clear that after Campbell, the tort liability of a governmental unit would be exactly the same as a private defendant in almost all respects.

But the word "almost" in the preceding two sentences is important. Campbell did acknowledge "that some vestige of the governmental immunity must be retained." Id. at 62-63, 284 N.E.2d at 737 (quoting W. Prosser, Law of Torts § 131, at 986 (4th ed.1971)). Campbell identified three situations where governmental units would not be liable for "acts or omissions which might cause damage to persons": (1) where a city or state fails to provide adequate police protection to prevent crime, id. (citing Simpson's Food Fair, Inc. v. City of Evansville, 149 Ind.App. 387, 272 N.E.2d 871 (1971), transfer denied); (2) where a state official makes an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment; and (3) where judicial decision-making is challenged, id. (citing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)).

Before Campbell, the common law general rule (we could call it a "presumption") was that governmental units were immune from liability for their torts unless the courts had recognized an exception. Campbell reversed the presumption. Henceforth, the common law general rule would be that governmental units would be liable for any "breach of a duty owed to a private individual"—except for such claims as failure to prevent crime, appointment of an incompetent official, or an incorrect judicial decision.

Campbell, however, concluded with some language that is the genesis of the current difficulty in defining "private duty" and "public duty." Campbell said: "Therefore, it appears that in order for one to have standing to recover in a suit against the state there must have been a breach of duty owed to a private individual." Id. at 62-63, 284 N.E.2d at 737 (emphasis added). We will discuss infra how this "private duty" language came to stand—incorrectly—for an exception to a common law general rule of sovereign immunity, rather than as the general rule from which governmental immunity is the exception.

B

The "duty owed to a private individual" to which Campbell refers is the common law duty to use ordinary and reasonable care under the circumstances. See Neal v. Home Builders, Inc., 232 Ind. 160, 168-69, 111 N.E.2d 280, 285 (1953),

reh'g denied; Union Traction Co. v. Berry, 188 Ind. 514, 522, 121 N.E. 655, 658 (1919), reh'g denied. By abolishing the doctrine of sovereign immunity, Campbell recognized that all governmental units were bound by this duty, directly and also derivatively, that is, under a theory of respondeat superior.⁶ For a breach of the duty of ordinary and reasonable care under the circumstances, Indiana common law would henceforth treat a governmental defendant no different from a non-governmental defendant.

For a brief period following Campbell, courts correctly concluded the phrase "duty owed to a private individual" was nothing more than a synonym for "duty of reasonable care." See, e.g., Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701 (1974)

; Roberts v. State, 159 Ind.App. 456, 307 N.E.2d 501 (1974). For...