City of Muncie v. Weidner

• Decision Date: 22 July 2005
• Docket Number: No. 18A04-0409-CV-485.,18A04-0409-CV-485.
• Citation: 831 N.E.2d 206
• Parties: CITY OF MUNCIE, by and through the MUNCIE FIRE DEPARTMENT, Appellant-Defendant, v. Thomas WEIDNER and Lauren Weidner, as surviving parents of A.B.W., deceased, Appellees-Plaintiffs.
• Court: Indiana Supreme Court

831 N.E.2d 206

CITY OF MUNCIE, by and through the MUNCIE FIRE DEPARTMENT, Appellant-Defendant, v. Thomas WEIDNER and Lauren Weidner, as surviving parents of A.B.W., deceased, Appellees-Plaintiffs.

No. 18A04-0409-CV-485.

Court of Appeals of Indiana.

July 22, 2005.

COPYRIGHT MATERIAL OMITTED

Mark A. Holloway, Stephenson Morow & Semler, Indianapolis, for Appellant.

Edward L. Murphy, Jr., Calvert S. Miller, Stephen J. Harants, Miller Murphy & Miller, LLP, Fort Wayne, for Appellees.

OPINION

KIRSCH, Chief Judge.

In this interlocutory appeal, the City of Muncie ("Muncie"), by and through the Muncie Fire Department, appeals the trial court's denial of its motion for summary judgment in a wrongful death of child action, which was brought by Thomas and Lauren Weidner (the "Weidners") as the surviving parents of A.B.W. ("A.W."). On appeal, Muncie raises various issues, of which we find the following to be dispositive: Whether the trial court erred in denying Muncie's motion for summary judgment because Muncie and its fire department neither had nor assumed a duty to protect A.W. from a downed, live, power line.

We reverse and remand.¹

FACTS AND PROCEDURAL HISTORY

On July 29, 2002, a storm caused more than 5,300 Muncie residents to lose electric power. That afternoon, Tony Gothard went home early from work in response to his wife's call reporting that their home's circuit breaker box was sparking. After arriving home, Gothard, who lived at 1308 North Mann Avenue, discovered no loss of electricity and found no sparks at the breaker box, but noted that the outside power line to his home was sagging. Gothard reported the problem to the electric company that owned the line, Indiana Michigan Power Company, a unit of American Electric Power ("AEP"), and returned outside to inspect the line. While outside, Gothard heard cracking and popping noises emanating from his next-door neighbor's backyard at 1300 North Mann Avenue. Upon further investigation, Gothard noticed a power line hanging down into the middle of the bushes between the two homes and reported it to the Muncie Fire Department.

The fire department dispatched a truck with fireman Mark Hill in charge. By the time the truck arrived, Gothard no longer heard any cracking or popping, but showed Hill the area where he had heard the sounds and where the line could still be seen hanging into the bushes. Hill told Gothard to keep his family out of the backyard because electricity can travel both through bushes and through the ground. Earlier, AEP had instructed the fire department to assume that all downed lines were live and to stay away from them. Hill called E-911 dispatch, which immediately faxed a report to AEP, notifying them of the address and stating, "wires down in yard, burning." Appellant's Appendix at 99-100. The fire department completed its business at the Gothards' home in about five minutes and left before AEP arrived on the scene.

Around noon the next day, Gothard's wife called him at work to report that someone from AEP had been to their home, looked at the sagging wire in the backyard, and left without attempting to speak with her. Appellant's Appendix at 72-73. Gothard returned home and called AEP to report that, although someone had been out to check on the power line, the downed power line had still not been taken care of. After some questioning by AEP as to how Gothard could have both a downed line and still have power, the company agreed to send someone out as soon as possible. Id. at 74-75.

That same day, around 2:00 p.m., while D.B. and A.W. were mowing a backyard that abutted the Gothard's backyard, D.B. discovered A.W. unconscious and lying on his back. In response to D.B.'s telephone call, the E-911 center dispatched an ambulance at 2:04 p.m. Once at the scene, emergency medical technician Gary Gardner assessed the situation for dangers, including a possible downed power line, but did not see or hear anything unusual. He then began administering first aid to A.W. Police Officer Linda Cook, who was assisting Gardner, stepped back, received an electric shock and, in turn, fell on and shocked Gardner. A.W. died as a result of his injuries.

On May 19, 2003, the Weidners filed an amended complaint in the Delaware Circuit Court alleging that Muncie, by and through the actions of its fire department, negligently failed to protect A.W. from a downed, live, power line. The complaint asserted that the Muncie Fire Department had a duty to protect persons in Muncie from dangerous conditions that were made known to it; that the fire department failed to take proper precautions after being notified of the downed power line; and that, as a proximate result of this negligence, A.W. came into contact with the line and was killed.² Appellant's Appendix at 138-139. As such, the Weidners alleged that they were entitled to damages pursuant to IC 34-23-2-1—the wrongful death of a child statute. The Weidners also had previously filed a tort claim notice with the Mayor of Muncie, the City Attorney of Muncie, and the Indiana Political Subdivision Risk Management Commission, notifying them of the lawsuit. Appellant's Appendix at 141-143.

Muncie filed a motion for summary judgment, arguing: (1) common law immunity barred the plaintiffs' claims against Muncie; (2) Muncie was immune from liability under the Tort Claims Act (IC 34-13-3-3(19)) for any loss resulting from the development, adoption, implementation, operation, maintenance, or use of an enhanced emergency communications system;³ (3) Muncie also was immune from liability under the Emergency Management and Disaster Law (IC 10-14-3) because the firemen were responding to a danger caused by a severe storm; and (4) Muncie did not have a duty to maintain the power line facilities at issue in the Weidners' complaint because it did not own, operate, or manage those facilities. Appellant's Appendix at 24. The trial court denied Muncie's motion on April 8, 2004.

On April 20, 2004, Muncie requested certification of the order, but the trial court withheld ruling on the matter so that the parties could mediate the case. During the mediation, AEP, a defendant in the original suit, entered into a settlement agreement with the Weidners and was dismissed from the suit with prejudice. On August 25, 2004, the trial court certified for interlocutory appeal its ruling denying Muncie's motion for summary judgment in the Weidners' action. Muncie now appeals.

DISCUSSION AND DECISION

When reviewing the denial of a motion for summary judgment, we use the same standard as the trial court. Forty-One Assocs., LLC v. Bluefield Assocs., L.P., 809 N.E.2d 422, 426 (Ind.Ct.App.2004); Bastin v. First Indiana Bank, 694 N.E.2d 740, 743 (Ind.Ct.App.1998), trans. denied. Summary judgment is appropriate only if the designated evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Forty-One Assocs., 809 N.E.2d at 426; Hemingway v. Sandoe, 676 N.E.2d 368, 369 (Ind.Ct.App.1997). The moving party must designate sufficient evidence to eliminate any genuine factual issues, and, once the moving party has done so, the burden shifts to the nonmoving party to come forth with contrary evidence. Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d 425, 430 (Ind.Ct.App.2004). We accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmoving party, and resolve all doubts against the moving party. Id. The party appealing from a summary judgment decision bears the burden of persuading this court that the ruling was erroneous. Splittorff v. Fehn, 810 N.E.2d 385, 387 (Ind.Ct.App. 2004), trans. denied (2005) (citing Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind.2001)).

To be granted summary judgment in this negligence action, Muncie had to demonstrate that the undisputed material facts negated at least one element of the Weidners' claim or that the claim was barred by an affirmative defense. City of Hammond v. Cipich ex rel. Skowronek, 788 N.E.2d 1273, 1278 (Ind.Ct.App.2003), trans. denied. The trial court found that Muncie did not meet this burden.

On appeal, Muncie contends that it should have been granted summary judgment on one of three grounds: (1) because Muncie and its fire department owed no duty of care to protect A.W. from the power line which was owned and operated by AEP; (2) because the common law, which grants immunity from tort liability to those failing to provide adequate police protection to prevent crime, by reasonable extension also grants immunity when there is a claim, such as this, that the fire department failed to secure an area near a downed power line; or (3) because the statutory immunity provided by the Emergency Management and Disaster Law, IC 10-14-3, which was intended to facilitate rescue and remedial measures, establishes immunity for municipalities responding to destruction caused by storms. We find the first issue to be dispositive.⁴

To prevail on a claim of negligence, the Weidners must show: (1) a duty owed to them by Muncie or its fire department; (2) a breach of that duty; and (3) compensable injury proximately caused by Muncie or its fire department's breach of duty. King v. Northeast Security, Inc., 790 N.E.2d 474, 484 (Ind.2003); Williams v. Cingular Wireless, 809 N.E.2d 473, 476 (Ind.Ct.App.2004), trans. denied. Before reaching the questions of breach and injury, we must consider the threshold matter of whether Muncie and its fire department owed a duty to the Weidners. See Williams, 809 N.E.2d at 476. "`Duty' has been defined as `an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.'" Guy's Concrete, Inc. v. Crawford, 793 N.E.2d 288, 293 (Ind. Ct.App.2003), trans. denied (quoting W. KEETON, PROSSER & KEETON ON THE LAW OF TORTS 356 (5th ed.1984)). Absent a duty,...