Culver-Union Tp. Ambulance Service v. Steindler, CULVER-UNION

• Decision Date: 08 April 1993
• Docket Number: CULVER-UNION,No. 50A04-9109-CV-306,50A04-9109-CV-306
• Citation: 611 N.E.2d 698
• Parties: TOWNSHIP AMBULANCE SERVICE; Marvalene Leffert, as Trustee of Union Township, Marshall County, Indiana; Bernard Bursart, as President of the Culver Town Board, Appellants-Defendants, v. Barbara STEINDLER, as Executrix of the Estate of Rolin G. Popplewell, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 698

611 N.E.2d 698

CULVER-UNION TOWNSHIP AMBULANCE SERVICE; Marvalene Leffert,

as Trustee of Union Township, Marshall County, Indiana; Bernard Bursart, as President of the Culver Town Board, Appellants-Defendants, v. Barbara STEINDLER, as Executrix of the Estate of Rolin G.

Popplewell, Appellee-Plaintiff.

No. 50A04-9109-CV-306.

Court of Appeals of Indiana,

Fourth District.

April 8, 1993.

Steven P. Polick, Knight Hoppe Fanning & Knight, Ltd., Schererville, for appellants-defendants.

Roger A. Weitgenant, Blachly Tabor Bozik & Hartman, Valparaiso, for appellee-plaintiff.

SULLIVAN, Judge.

Defendants-Appellants, Culver-Union Township Ambulance Service ("Culver-Union"), Marvalene Leffert, and Bernard Bursart appeal the denial of their Motion to Dismiss Plaintiff-Appellee's, Barbara Steindler's ("Executrix"), Complaint and the denial of their Motion for Judgment on the Pleadings. We affirm in part and reverse in part.

Appellants present several issues for our review, which we restate as follows:

I. Whether the trial court appropriately denied the Motion to Dismiss and the Motion for Judgment on the Pleadings on the count of Executrix's complaint which alleged wrongful death as a result of negligence on the part of the defendants;

II. whether the facts pleaded in Executrix's complaint give rise to an action under 42 U.S.C. Sec. 1983.

Rolin G. Popplewell died in 1988. Executrix filed this action seeking recovery. Count I charged that the negligent acts and/or omissions of Culver-Union, Bursart, as President of the Culver Town Board, and Leffert, as Trustee of Union Township (by and through their ambulance service personnel), caused the wrongful death of decedent. Executrix alleged that the ambulance personnel "negligently failed to take adequate steps to respond" to decedent's emergency situation. Failure of the ambulance personnel allegedly included inefficient appraisal of decedent's condition, failure to respond quickly and efficiently to the emergency, failure to allow trained medical personnel to respond to decedent and failure to transport decedent to a medical facility soon enough. It was alleged that Town of Culver and Union Township are liable for the acts and omissions of the emergency personnel.

Count II was brought pursuant to 42 U.S.C. Sec. 1983. It charged that various policies adopted by Appellants constituted a reckless indifference to decedent's constitutionally guaranteed "right to live."

Culver-Union and Bursart answered the complaint denying all wrongdoing. Leffert filed a Motion to Dismiss Plaintiff's Complaint, arguing, inter alia:

(a) Plaintiff's complaint did not state a prima facie case; it alleged no damages;

(b) Plaintiff failed to allege a special duty owed to decedent by the defendant, a political subdivision; and

(c) Plaintiff had no recognizable claim under Sec. 1983.

Culver-Union and Bursart joined in Leffert's Motion to Dismiss.

Subsequently, Culver-Union and Bursart filed a Motion for Judgment on the Pleadings, arguing that Count II of the complaint failed to state a claim for which relief could be granted, because the action under Sec. 1983 did not survive the death of decedent. Leffert joined the Motion for Judgment on the Pleadings. After a full hearing upon the merits, the trial court denied both motions.

Culver-Union, Bursart and Leffert filed a joint motion in the trial court for certification of the matter for interlocutory appeal. They also filed a Joint Petition for Leave to Appeal. Both the joint motion and the joint petition were granted.

I

The appellants attack the ruling which denied their Motion to Dismiss and their Motion for Judgment on the Pleadings with respect to the count alleging negligence which caused the death of the Executrix's decedent. They contend that because Executrix did not specify whether decedent had next of kin or other dependents, the claim fails under the wrongful death statute. Indiana's Wrongful Death Act allows for a damage award even absent next of kin, albeit only "the total of the necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees." I.C. 34-1-1-2 (Burns Code Ed.1986). It is possible, whether decedent left next of kin or not, for Executrix to recover under Indiana's Wrongful Death Act. The claim will not fail for lack of more specific pleading.

Appellants next argue that they had no duty to decedent and thus cannot be held liable for his death under a theory of negligence. Appellants claim that they had no duty because there was no special relationship between decedent and the ambulance personnel and that they had only a general duty to decedent. If the duty which a public authority imposes upon a public agent is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public not an individual injury, and must be redressed, if at all, in some form of public prosecution. Simpson's Food Fair, Inc. v. City of Evansville (1971) 149 Ind.App. 387, 272 N.E.2d 871, 873, trans. denied. On the other hand, if the duty is a duty to an individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. Id. To be private, a duty must be particularized to an individual. Id. 272 N.E.2d at 874.

Executrix alleges in her complaint that Appellants breached a special duty to decedent once they arrived at the scene. At what point the duty actually attached, or whether that duty was breached are mixed questions of law and fact to be determined by the trial court. In Gary Police Dept. v. Loera (1992) 3d Dist.Ind.App., 604 N.E.2d 6, 7, the court stated:

"The duty to exercise care for the safety of another arises as a matter of law out of some relationship existing between the parties, and it is the province of the court to determine whether such relation gives rise to a duty. Harper v. Guarantee Auto Stores (1989), Ind.App., 533 N.E.2d 1258, 1261. However, factual questions may be interwoven with the determination of the existence of a relation, rendering the existence of a duty a mixed question of law and fact, ultimately to be resolved by the fact-finder. Id. at 1261-62."

Thus, by alleging the elements of negligence, Executrix met her pleading burden sufficiently to escape a motion to dismiss and a motion for judgment on the pleadings. We cannot conclude, as a matter of law, that Executrix's allegations of negligence do not contemplate some set of facts which would give rise to relief. The issue of whether the facts are sufficient to demonstrate a special duty cannot be resolved upon a motion to dismiss or a motion for judgment on the pleadings. We affirm the trial court's denial of the motion to dismiss and the motion for judgment on the pleadings on the wrongful death negligence count.

II.

With respect to the second issue, we must determine whether the facts pleaded in Executrix's complaint give rise to an action under Sec. 1983. Indiana requires only notice pleading. As stated in Lincoln National Bank v. Mundinger (1988) 3d Dist.Ind.App., 528 N.E.2d 829, 835-36:

"The term 'notice pleading' is a description of the requirements of T.R. 8(A), which states that a complaint need only contain:

'(1) A short and plain statement of the claim showing that the pleader is entitled to relief, and

(2) A demand for the relief to which he deems himself entitled.'

Under notice pleading, all that is required for a complaint to defeat a T.R. 12(B)(6) motion to dismiss is a 'clear and concise statement that will put the defendants on "notice" as to what has taken place and the theory that plaintiffs plan to pursue in their attempt for recovery.' "

See also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit (1993) --- U.S. ----, 113 S.Ct. 1160, 122 L.Ed.2d 517.

When reviewing a Motion to Dismiss or a Motion for Judgment on the Pleadings, we apply the standard set forth in Anderson v Anderson (1979) 2d Dist.Ind.App., 399 N.E.2d 391, 406:

"[T]he test to be applied when ruling on a T.R. 12(B)(6) motion or a T.R. 12(C) motion that raises the defense of failure to state a claim upon which relief can be granted is whether, in the light most favorable to the non-moving party and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim. [Citation omitted.] In applying this test the court may look only at the pleadings, with all well-pleaded material facts alleged in the complaint taken as admitted, supplemented by any facts of which the court will take judicial notice."

Because the trial court's order on the motions is a general order, we have "a duty to sustain the action of the trial court if it can be done on any legal ground on the record." State v. Mileff (1988) 4th Dist.Ind.App., 520 N.E.2d 123, 125.

The United States Supreme Court established a two-part test to determine whether a plaintiff who asserts a Sec. 1983 claim against a municipality has met the burden of stating a claim upon which relief can be granted: (1) whether plaintiff's harm was caused by a constitutional violation, and, if so (2) whether the city is responsible for that violation. Collins v. City of Harker Heights, Tex. (1992) --- U.S. ----, ----, 112 S.Ct. 1061, 1066, 117 L.Ed.2d 261. ¹ We must examine Executrix's complaint for relief under Sec. 1983, to determine whether it will permit a recovery under any set of facts. Id.

A.

We first discuss whether there was a viable claim of a constitutional violation. Executrix's constitutional claim rests entirely upon the Due Process Clause of the Fourteenth Amendment. ² It is for violations of constitutional rights that Sec. 1983 authorizes redress. That section is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States...