City of Gary v. Odie

• Decision Date: 24 August 1994
• Docket Number: No. 64A04-9306-CV-225,64A04-9306-CV-225
• Citation: 638 N.E.2d 1326
• Parties: CITY OF GARY, Indiana, Appellant-Defendant, v. Katie B. ODIE, Administratrix of the Estate of Eddie Odie, Jr., Deceased, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1326

638 N.E.2d 1326

CITY OF GARY, Indiana, Appellant-Defendant, v. Katie B. ODIE, Administratrix of the Estate of Eddie Odie Jr., Deceased, Appellee-Plaintiff.

No. 64A04-9306-CV-225.

Court of Appeals of Indiana Fourth District.

Aug. 24, 1994.

Gilbert King, Jr., Gary, for appellant.

James T. Walker, James T. Walker Professional Ass'n, Merrillville, for appellee.

RILEY, Judge.

In this suit for damages brought by the Estate of Eddie Odie, the jury found the Defendant-Appellant the City of Gary, Indiana (Gary), liable for negligent response to Katie Odie's calls for emergency assistance made on the 911 number established and serviced by Gary. Gary brings this appeal and raises one restated issue for our review: ¹ Did the trial court err in determining that the City of Gary owed a private duty to Eddie Odie?

FACTS

The facts most favorable to the judgment reveal that shortly after 4:00 a.m. on August 14, 1988, Eddie Odie got out of bed to let his dog into the house. When he returned to bed he experienced breathing difficulties. At 4:07 a.m., Katie Odie dialed 911 and told the dispatcher that her husband could not "catch his breath" and asked for an ambulance to be sent. (R. 269). The dispatcher assured her that the ambulance was on its way. Katie Odie then called her neighbor, her sister, brother-in-law and niece, and Eddie Odie's daughter and grandson.

Shortly after her neighbor arrived, Katie Odie called 911 for the second time. Again she was assured that the ambulance was coming. When her sister arrived, Katie Odie called for a third time. A fourth call was made by Katie Odie's brother-in-law. Katie Odie made the fifth call and was assured that the ambulance would arrive momentarily. When she told the dispatcher that the ambulance still had not come, the dispatcher informed her in a discourteous tone that the ambulance was probably outside already. The ambulance arrived at 4:49 a.m., 42 minutes after Katie Odie's first call.

Katie Odie testified that she relied on the assurances of the dispatcher and had she known the length of time it would take for the ambulance to arrive, she would have taken her husband to the hospital by car.

At all times relevant to this claim, the City of Gary (Gary) was the exclusive operating authority of the Gary Fire Department Ambulance Service (Ambulance Service). On August 14, 1988, the Ambulance Service was short-staffed with only two of the four regular ambulance crews working. That night the supervisor ordered Ambulance Crew # 404 to station themselves on the northwest side of Gary at Fire Station # 9. Crew # 404 disregarded the order, stationing themselves on the south east side of Gary at Fire Station # 10. The Odies lived about a mile and a half from Fire Station # 9.

The dispatcher with whom Katie Odie spoke chose Crew # 404 to respond to the Odie call; however, when the Odie call first came in, the dispatcher could not find Crew # 404. When he located them at Firehouse # 10, they were asleep. One member of the crew answered the call and logged the response time as 4:35 a.m.; however, it took some time before the team was prepared to leave the station. ² At the time of Katie Odie's call, other ambulance crews were available to respond. The average response time for Gary and Northwest Indiana reporting region in 1988 was approximately six minutes; cardiac care time parameters for basic life support was four to six minutes and for advanced life support was eight minutes.

When the ambulance arrived at the Odies' home, the EMTs failed to promptly assess Eddie Odie's condition, failed to promptly call for the assistance of a paramedic who could provide more definitive care, and failed to promptly initiate CPR. Eddie Odie arrived at St. Mary's Medical Center at 5:29 a.m.; he died at 5:45 a.m. of congestive heart failure, pulmonary edema, and cardiac arrest.

Katie Odie, as administratrix of the estate of Eddie Odie, Jr. (Estate), instituted a wrongful death claim against Gary, on November 10, 1989. ³ On January 27, 1992, Katie Odie moved for leave to file an amended complaint which added a second count of intentional infliction of emotional distress as a separate cause of action. This was allowed by the trial court. On January 28, 1993, Gary filed its answer to the amended complaint which included the affirmative defense of governmental immunity under Indiana's Tort Claims Act, IND.CODE 34-4-16.5-1, et seq.

In a pre-trial order, the dispute over Gary's immunity defense was resolved by stipulation that the defense would be permitted only as to the second count of the amended complaint which was dismissed at the close of the Estate's case. On February 26, 1993, after a jury trial, the court entered judgment on the jury's verdict in favor of the Estate.

Gary appeals.

DISCUSSION

In light of the elimination of governmental immunity pursuant to the Indiana Tort Claims Act as a defense, the Estate was required to prove the traditional elements of actionable negligence in order to prevail. But see Crouch v. Hall (1980), Ind.App., 406 N.E.2d 303, 304 (discussing the lack of clarity in the distinction between immunity analysis and duty analysis). In order to recover damages, the Estate had the burden of establishing: (1) a duty owed by the defendant to conform its conduct to a standard of care necessitated by its relationship with the decedent; (2) a breach of that duty; and (3) an injury proximately caused by the breach. Greathouse v. Armstrong (1993), Ind., 616 N.E.2d 364, 368.

We address the issues raised by Gary keeping in mind our standard of review: the trial court's judgment will be affirmed if sustainable on any theory or basis found in the record on appeal. Kellogg v. City of Gary (1990), Ind., 562 N.E.2d 685, 691.

Gary contends that it did not owe a duty to Eddie Odie beyond the general duty owed to all members of the public. Specifically, it argues that there was insufficient contact between Eddie Odie and the Ambulance Service to create a private duty.

The duty to exercise care for the safety of another arises as a matter of law out of a relationship which exists between the parties, and it is the province of the court to determine whether a relationship gives rise to a duty. Greathouse, 616 N.E.2d at 368; Webb, 575 N.E.2d at 995. Factual questions may be interwoven with the determination of the existence of a relationship, rendering the existence of a duty a mixed question of law and fact, ultimately to be resolved by the fact-finder. Gary Police Dept. v. Loera (1992), Ind.App., 604 N.E.2d 6, 7.

Generally two types of duty, public and private, can arise in situations similar to the case at bar. Id. at 8. If the duty which an official authority imposes upon its agent is a duty to the public, a failure to perform it, or an inadequate or erroneous performance is a public injury and must be redressed in some form of public prosecution. Id. However, to ensure responsibility and the utmost protection possible within limited means, a municipality must be accountable for its negligence to some degree. City of Rome v. Jordan (1993), 263 Ga. 26, 426 S.E.2d 861, 863. Thus, if the duty is a duty to an individual, then the neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. Id. The plaintiff has the burden of establishing that a private duty between himself and the official entity arose, entitling him to recover for the breach of that duty. Greathouse, 616 N.E.2d at 368; Lewis v. City of Indianapolis (1990), Ind.App., 554 N.E.2d 13, 16, trans. denied; See also Crouch, 406 N.E.2d at 304.

A private duty must be particularized to an individual. Simpson's Food Fair v. City of Evansville (1971), 149 Ind.App. 387, 391, 272 N.E.2d 871, 874. In specific circumstances, a governmental entity or agent can, by its conduct, narrow an obligation which it owes to the general public into a special duty to an individual. Tanasijevich v. City of Hammond (1978), 178 Ind.App. 669, 383 N.E.2d 1081, 1084 (citing Massengill v. Yuma County (1969), 104 Ariz 518, 523, 456 P.2d 376, 381). Thus, before Gary can be held liable for negligence, the Estate must show that the Ambulance Service or its dispatcher owed a private duty to Eddie Odie. Absent a duty, there can be no breach of duty, and no negligence or liability based on the breach of duty. Lewis, 554 N.E.2d at 16.

Courts throughout the United States have had difficulty defining the exact nature of the private duty and when Indiana courts have considered the concept, they generally have not found it. See Greathouse, 616 N.E.2d at 368-69 (sheriff's department owed no private duty to motorcyclist simply because cattle escaped onto a highway and sheriff attempted to contact cattle's owner); State v. Flanigan (1986), Ind.App., 489 N.E.2d 1216, 1219, trans. denied (police did not owe a private duty to provide traffic control so that pedestrians walking along a highway could walk in safety); City of Hammond v. Cataldi (1983), Ind.App., 449 N.E.2d 1184, 1188 (fire department did not owe special duty to victims of a fire in its attempt to extinguish the fire because it was made in response to its general duty to protect the safety and welfare of the public); Crouch, 406 N.E.2d at 304 (police did not owe special duty to the estate of a rape victim to investigate the rape of a third party and thereby help prevent the rape and murder of the victim); Simpson's Food Fair, 149 Ind.App. at 393, 272 N.E.2d at 875 (city was not liable for failure of the police to stop a wave of criminal activity which forced store to close). However, the concept of a private duty owed by a public entity to individuals has eroded the doctrine of immunity. Indeed, in a discussion about exceptions to the governmental doctrine where a private duty exists, Judge Sullivan stated: "The presence of the amorphous and ill-defined duty owed by government to the public as a predominating factor which...