Drake by Drake v. Mitchell Community Schools, No. 47A01-9309-CV-290

• Docket Nº: No. 47A01-9309-CV-290
• Citation: 628 N.E.2d 1231
• Case Date: February 02, 1994
• Court: Court of Appeals of Indiana

Page 1231

628 N.E.2d 1231 89 Ed. Law Rep. 239 Holli DRAKE, By her next Friends and Parents, Doris and
Donald DRAKE and Doris and Donald Drake,
Individually, Appellants-Plaintiffs,
v.
MITCHELL COMMUNITY SCHOOLS, Mitchell Community Schools Board
of Trustees, Kiwanis International, Inc., Mitchell Chapter
and its Board of Directors, and First National Bank of
Mitchell, Appellees-Defendants. No. 47A01-9309-CV-290. Court of Appeals of Indiana,
First District. Feb. 2, 1994.

Page 1232

Jay D. Allen, Salem, for appellants-plaintiffs.

Robert J. Doyle, Stewart Due Miller & Pugh, Indianapolis, for appellee-defendant, Mitchell Community Schools, Mitchell Community School Bd. of Trustees.

Mark R. Smith, Smith & Bemenderfer, Indianapolis, for appellee-defendant, First Nat. Bank of Mitchell.

ROBERTSON, Judge.

Plaintiffs-Appellants Holli Drake (a minor) and her parents, Doris and Donald Drake [Drake], appeal the summary judgment entered in favor of the Defendants-Appellees Mitchell Community Schools, Mitchell Community School Board of Trustees [School], and the First National Bank of Mitchell [Bank], in the Drakes' lawsuit to recover for injuries Holli sustained by contracting the disease of histoplasmosis from pigeon droppings while preparing for and participating in a Halloween "Haunted House" fund-raising event co-sponsored by the School and co-defendant Kiwanis International, Inc. [Kiwanis], which was held at a grain elevator owned by the Bank. Kiwanis has not sought to appeal the denial of its motion for summary judgment. Drake raises two issues, one pertaining to each appellee. Both appellees have submitted briefs, each pertaining to its own defense to the Drakes' claim. We reverse the summary judgment in favor of the School and affirm the summary judgment in favor of the Bank.

FACTS

The facts in the light most favorable to nonmovant Drake indicate that in 1981, the Bank acquired ownership of an old grain elevator in downtown Mitchell, Indiana. Since acquiring the grain elevator, the Bank has permitted the Kiwanis to use it each year in connection with an annual Halloween fund raising event as a "haunted house" (or more accurately, as a "haunted grain elevator"). The Bank has always permitted the Kiwanis to use the grain elevator free of charge.

In the fall of 1990, the Kiwanis again borrowed the grain elevator. The Kiwanis assumed sole responsibility to complete any necessary "clean up" of the grain elevator before using it as the haunted house. Kiwanis approached the School and requested the student council to assist in putting on the event. The student council agreed to participate, and the Kiwanis and the student council agreed to split the profits on a 50/50 basis.

Page 1233

The Bank was not paid for the use of the grain elevator, nor was the Bank to share in any profits.

The advisor of the student council, Cassandra Wheatly (a teacher at the School), was aware that the grain elevator was potentially unsafe and could pose a danger to the students' health. Specifically, Wheatly anticipated that the students could be exposed to histoplasmosis in the grain elevator. Wheatly was knowledgeable about the disease and its causes having contracted it herself while in college. Wheatly requested that the grain elevator be inspected to make sure it was safe for the students. Wheatly herself participated in an inspection and noted its dirty condition and the presence of pigeon droppings. Wheatly insisted that the Kiwanis clean the building before the students entered it.

A member of the Kiwanis also inspected the grain elevator, observed pigeon droppings, and was concerned that persons in the grain elevator would be exposed to histoplasmosis. Another member of Kiwanis volunteered to clean the grain elevator with a shop vacuum cleaner.

Holli Drake participated on the School's student council as an extracurricular activity. She volunteered to make decorations for the haunted house. She was to use her imagination and her own creativity to come up with ideas and to construct the decorations. Holli entered the grain elevator to make decorations before the Kiwanis had gotten around to cleaning the building. The grain elevator was extremely dusty and dirty. Pigeon droppings were visible on the floor. While the students were constructing the decorations, the volunteer from Kiwanis arrived and began to vacuum the building. Holli and her friends cut out ten styrofoam tombstones, painted them, and placed them as decorations inside the grain elevator. Holli also helped clean the grain elevator by sweeping the ramp with a broom. Nevertheless, the grain elevator was still very dusty when the actual event was held. Holli participated in the actual event by hiding in a plastic coffin and jumping out periodically in order to scare people.

Several days after the haunted house program was held, Holli contracted a severe case of histoplasmosis as a result of being exposed to pigeon droppings in the grain elevator. Her illness necessitated hospitalization, including a transfer to Riley Children's Hospital in Indianapolis. Holli's family incurred substantial medical bills and other expenses in connection with her treatment.

DECISION

At the outset, we set out our well-settled standard for the review of summary judgment as follows:

The party appealing from the grant of summary judgment must persuade the appellate tribunal that the judgment erroneously determined 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. Ind.Trial Rule 56(C). Thus, the reviewing appellate court faces the same issues that were before the trial court and follows the same process.... The trial court's determination must be carefully scrutinized on appeal to assure that the non-prevailing party is not improperly prevented from having his day in court. In considering the motion for summary judgment, the contents of all pleadings, affidavits and testimony are liberally construed in the light most favorable to the non-moving party. Where material facts conflict or undisputed facts lead to conflicting inferences, summary judgment is inappropriate, even if the court believes the non-moving party will not succeed at trial.

Greathouse v. Armstrong (1993), Ind., 616 N.E.2d 364, 365-6 (Citations omitted).

I.

Whether summary judgment was appropriately entered in favor of the School?

The School sought (and obtained) protection under a provision of the Indiana Tort Claims Act pertaining to governmental immunity. Specifically, the School has relied upon Ind.Code 34-4-16.5-3 which reads:

A governmental entity or an employee acting within the scope of the employee's

Page 1234

employment is not liable if a loss results from:

* * * * * *

(11) failure to make an inspection, or making an inadequate or negligent...