Connie v. the City of Martinsville

• Decision Date: 11 January 2011
• Docket Number: No. 55A01–1003–CT–141.,55A01–1003–CT–141.
• Citation: 940 N.E.2d 1197
• Parties: Connie and Dean ELLIS, Appellants–Plaintiffs,v.The CITY OF MARTINSVILLE, Martinsville Fire Department, and Terry Hart, both individually and in his capacity as Assistant Chief of Martinsville Fire Department, Appellees–Defendants.
• Court: Indiana Appellate Court

940 N.E.2d 1197

Connie and Dean ELLIS, Appellants–Plaintiffs,

v.The CITY OF MARTINSVILLE, Martinsville Fire Department, and Terry Hart, both individually and in his capacity as Assistant Chief of Martinsville Fire Department, Appellees–Defendants.

No. 55A01–1003–CT–141.

Court of Appeals of Indiana.

Jan. 11, 2011.

Jonathan P. Sturgill, The Sturgill Law Firm, Indianapolis, IN, Attorney for Appellants.Douglas A. Hoffman, Carson Boxberger LLP, Bloomington, IN, Attorney for Appellees.

OPINION

BROWN, Judge.

Connie and Dean Ellis appeal the trial court's grant of motions for summary judgment in favor of the City of Martinsville and the Martinsville Fire Department (collectively, the “MFD”), and in favor of Terry Hart, Assistant Fire Chief with the Martinsville Fire Department.¹ The Ellises raise two issues, which we consolidate and restate as whether the trial court erred in granting the motions for summary judgment. We affirm.

This case concerns a fire that broke out on April 24, 2006, in a barn located on the Ellises' property commonly known as 1439 North Blue Bluff Road and adjacent to a “triplex” rental property commonly known as 1441, 1443, and 1445 North Blue Bluff Road, also owned by the Ellises, in Martinsville, Indiana. Appellants' Appendix at 58. The properties were “outside of the city limits for the City of Martinsville,” and were “located in Washington Township for taxation purposes.” ² Id. Because the parties designated differing and sometimes contradictory evidence, and different designations were made as to each motion, we will recite the facts based on the designation pertaining to each summary judgment motion.

The procedural history follows. On April 10, 2008, the Ellises filed a complaint against the MFD and Hart alleging negligence. On May 21, 2008, the MFD and Hart filed a motion to dismiss pursuant to Ind. Trial Rule 12(B)(6). On June 18, 2008, the Ellises filed a response in opposition to the motion to dismiss, and on September 30, 2008, the trial court denied the motion.

On October 28, 2008, the MFD and Hart filed an answer with a request for jury trial.³ On March 16, 2009, the MFD and Hart filed a motion for summary judgment, memorandum in support of the motion, and designation of evidence, and argued that 1) they owed no duty to the Ellises based upon the test enunciated in Webb v. Jarvis, 575 N.E.2d 992 (Ind.1991), reh'g denied; and 2) the failure to provide adequate fire protection is an exception to governmental tort liability based upon both common law governmental immunity and the Indiana Tort Claims Act (“ITCA”) at Ind.Code § 34–13–3–3(7).⁴ On June 1, 2009, the Ellises filed a response in opposition to defendants' motion for summary judgment and refuted both grounds cited by the MFD and Hart. On July 10, 2009, the trial court granted the summary judgment motion, but the court subsequently “held a telephonic conference clarifying its order ... advising the parties that summary judgment was not granted in favor of [Hart] and was only granted in favor of [the MFD].” Id. at 93. On August 18, 2009, the court certified the order for interlocutory appeal, but on October 27, 2009 this court denied the Ellises' motion.

On October 7, 2009, Hart filed a motion for summary judgment and memorandum of law in support of the motion and argued that “the acts and omissions of [Hart] occurred while he was acting in his capacity as Assistant Chief of the Martinsville Fire Department,” and that “[u]nder these circumstances, there can be no cause of action against [Hart] individually, whatsoever.” Id. at 107. On October 14, 2009, the Ellises moved to strike Hart's motion pursuant to Ind. Trial Rule 12(F). On October 16, 2009, the court denied Hart's summary judgment motion. On October 26, 2009, Hart filed a motion to reconsider the court's ruling on his motion for summary judgment and requested a hearing, and a hearing was held on December 15, 2009. At the conclusion of the hearing, the court entered an order setting aside its order denying summary judgment and giving the Ellises until January 31, 2010 to respond to Hart's motion. The court's order also gave Hart until February 15, 2010 to respond to the Ellises' response, denied the Ellises' motion to strike, and set another hearing date for February 25, 2010.

On February 5, 2010, the Ellises filed their response in opposition to Hart's motion for summary judgment. On February 11, 2010, Hart filed a reply in further support of his motion for summary judgment and attached a case cited by the Ellises in their response, Barnett v. Clark, 889 N.E.2d 281 (Ind.2008). On March 1, 2010, the court granted Hart's summary judgment motion.

The issue is whether the trial court erred in granting the motions for summary judgment. When reviewing a grant of a motion for summary judgment, our standard of review is well-settled and is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind.2009). Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind.2002). Our review of a summary judgment motion is limited to those materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. All factual inferences must be construed in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Kovach v. Caligor Midwest, 913 N.E.2d 193, 197 (Ind.2009), reh'g denied. On appeal, the trial court's order granting or denying a motion for summary judgment is cloaked with a presumption of validity. Sizemore v. Erie Ins. Exch., 789 N.E.2d 1037, 1038 (Ind.Ct.App.2003). A party appealing from an order granting summary judgment has the burden of persuading the appellate tribunal that the decision was erroneous. Id. at 1038–1039.

Where a trial court enters findings of fact and conclusions thereon in granting a motion for summary judgment, as the trial court did in this case on both motions, the entry of specific findings and conclusions does not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions thereon. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

“In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Peters v. Forster, 804 N.E.2d 736, 738 (Ind.2004). In negligence cases, summary judgment is “rarely appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.” Id. Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff's claim. Id. at 385.

Here, the Ellises argue that the trial court erred in granting summary judgment in favor of (A) the MFD; and (B) Hart in his individual capacity. We address each order separately.

A. The MFD's Motion for Summary Judgment

The facts as designated by the parties reveal that the MFD responded to the Ellises' fire “in an ‘assist’ mode of providing mutual aid⁵ to another fire department, the Washington Township Fire Department.” Appellants' Appendix at 39. Hart, who was the Assistant Fire Chief, had been investigating as a member of the MFD “a house that a girl had claimed ... had been burned by her boyfriend.” Id. at 81. He heard radio traffic regarding the Ellises' fire and responded, but he came upon the scene “very long after” other members of the MFD had arrived and were already “attempting to help put out the fire....” Id. at 81–82. Also, the MFD Fire Chief, Tim Fraker, was already on the scene. The MFD brought water with them in their trucks to the fire. When Hart arrived, the MFD was “spraying water towards the big rubble that was on the ground and there was an apartment building ... and they were directing water on it.” Id. at 82.

During the incident, Tommy Ellis, the Ellises' son, witnessed Hart engage “in a heated discussion with another fireman from the Washington Township Fire Department,” and at one point Tommy overheard Hart “exclaim to the Washington Township fireman, ‘[l]et it burn!’ ” Id. at 72. Tommy also overheard the Washington Township fireman tell Hart “that they could save the apartments in the back,” and Hart responded “that it was ‘their’ fire.” Id.

About forty-five minutes after the discussion, Tommy overheard Hart “order the [MFD] to pull-out and turn the fire over to the Washington Township Fire Department.” Id. at 73. The MFD left when the fire was “[p]retty much” extinguished, and other fire departments, including “Gregg, Paragon, [and] Washington Township,” were “soaking up hot spots.... Little bits of fire laying out on the ground that are needing to be put water on [sic]....” Id. at 82. “Since the [MFD] was an assisting agency, neither [Hart] nor any other [MFD] personnel were in the position to order and/or direct any other fire personnel at the scene.” Id. at 40. Fire Chief Fraker's name is listed on the MFD's incident report which is an indication of the person in charge of that department who was on the scene.

In their...