Estate of Heck ex rel. Heck v. Stoffer, 02A03-0007-CV-267.

• Decision Date: 24 July 2001
• Docket Number: No. 02A03-0007-CV-267.,02A03-0007-CV-267.
• Citation: 752 N.E.2d 192
• Parties: ESTATE OF Eryk T. HECK, by and through Donald HECK, the Personal Representative of the Estate of Eryk T. Heck, Appellant-Plaintiff, v. Raymond E. STOFFER, Patricia Stoffer and Ray Stoffer & Son Construction, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

752 N.E.2d 192

ESTATE OF Eryk T. HECK, by and through Donald HECK, the Personal Representative of the Estate of Eryk T. Heck, Appellant-Plaintiff, v. Raymond E. STOFFER, Patricia Stoffer and Ray Stoffer & Son Construction, Inc., Appellees-Defendants.

No. 02A03-0007-CV-267.

Court of Appeals of Indiana.

July 24, 2001.

John C. Theisen, Mark A. Garvin, Holly A. Brady, Barnes & Thornburg, Fort Wayne, IN, Attorneys for Appellant.

Jeffrey P. Smith, David K. Hawk, Hawk, Haynie, Kammeyer & Chickedantz, Fort Wayne, IN, Attorneys for Appellees Raymond E. Stoffer and Patricia Stoffer.

Thomas W. Belleperche, Brian L. England, Hunt Suedhoff Kalamaros, LLP, Fort Wayne, IN, Attorneys for Appellee Ray Stoffer & Son Construction, Inc.

OPINION

BROOK, Judge.

Case Summary

Appellant-plaintiff the Estate of Eryk T. Heck ("the Estate"), by and through Donald Heck, the personal representative of the Estate, appeals the trial court's order dismissing its wrongful death action or in the alternative granting summary judgment in favor of appellees-defendants (collectively, "defendants") Raymond Stoffer ("Raymond"),¹ Patricia Stoffer ("Patricia"), and their business, Ray Stoffer & Son Construction, Inc. ("Stoffer Construction"). We affirm.²

Issues

The Estate presents three issues, which we restate and reorder as follows:

I. whether the trial court erred in dismissing the Estate's complaint for failure to state a claim;

II. whether the trial court erred in denying the Estate's motion to strike the affidavits of Raymond and Patricia or in denying the accompanying request for sanctions; and

III. whether the trial court erred in granting summary judgment to Raymond, Patricia, and Stoffer Construction.

Because our resolution of the first issue is dispositive, the only other issue we address is whether the denial of sanctions was appropriate.

Facts and Procedural History

Timothy Stoffer ("Timothy"), the son of Raymond and Patricia, began working for Stoffer Construction³ in the mid 1980s, when he was fifteen or sixteen years old. Although he worked for Stoffer Construction continuously for approximately the next eleven years, his employment was sporadic. Oftentimes Timothy was unavailable for work because he was in jail or prison or simply failed to report. During the years he worked for Stoffer Construction, Timothy was convicted of and/or charged with burglary, theft, forgery, escape, three counts of resisting law enforcement, possession of hashish, domestic battery, check deception, battery, non-support, and aiding forgery. He also stole over $8,000 from his grandfather by using his credit card, but Raymond and Patricia chose not to report it. Timothy was an abuser of alcohol and illegal narcotics, and as a result of this and his criminal activities, he was ordered to seek drug and alcohol counseling. His parents were aware of his legal entanglements, emotional and/or mental disturbance, his need for counseling, and the danger that he posed to others in the community.

During the winter of 1996 to 1997, Timothy lived at his parents' lake house to avoid law enforcement authorities. In February 1997, Raymond received information that the police had placed a tracking device on Timothy's truck, which was insured and used for work by Stoffer Construction. When Raymond told Timothy of the device, Timothy responded that he already knew of it. Between April and July of 1997, Timothy was charged with aiding forgery, had his probation revoked, entered a guilty plea to a charge of resisting law enforcement, and pled guilty to felony non-support. A sentencing hearing was scheduled for August 14, 1997, but Timothy failed to appear. During the summer of 1997, Raymond sensed that Timothy was feeling the pressure of his mounting legal problems, and Raymond believed that Timothy was going to flee the area.

On August 15, 1997, then-twenty-seven-year-old Timothy, without his parents' knowledge, took a handgun from their house and used it to shoot and kill Eryk Heck ("Heck"), a deputy with the Allen County Sheriff's Department. Timothy was also killed during this shooting incident.

On July 27, 1999, the Estate filed a wrongful death action against Raymond, Patricia, and Stoffer Construction. On September 27, 1999, Stoffer Construction filed a "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and Designation of the Record." A couple weeks later, Raymond and Patricia filed a separate "Motion to Dismiss for Failure to State a Claim or, Alternatively for Summary Judgment." Neither Stoffer Construction nor Raymond and Patricia filed an answer. On December 2, 1999, the Estate filed a motion for enlargement of time to respond. On January 14, 2000, after a hearing, the trial court found that the Estate's motion was untimely and precluded it from filing any evidence in opposition to the motions to dismiss/for summary judgment. That same day, the Estate filed an amended complaint, which the defendants also did not answer.

On February 3, 2000, Raymond and Patricia filed a "Motion to Dismiss Amended Complaint for Failure to State a Claim," and Stoffer Construction filed a "Second Motion to Dismiss, or in the Alternative, Motion for Summary Judgment." On March 28, 2000, the Estate filed a motion to strike the first motions to dismiss/for summary judgment. On April 10, 2000, the Estate filed a motion to strike the affidavits of Raymond and Patricia and filed a memorandum of law in opposition to the defendants' first motions to dismiss/for summary judgment. Four days later, Raymond and Patricia filed a motion to strike the Estate's motion to strike their affidavits. That same day, after holding a hearing on the pending motions, the trial court requested that counsel provide supplemental briefing on the issues of duty and proximate cause. On April 28, 2000, the parties filed their supplemental briefs.

On May 1, 2000, the Estate filed a memorandum in opposition to Stoffer Construction's second motion for summary judgment. On May 9, 2000, the Estate filed a memorandum of law in opposition to the motion to strike the Estate's motion to strike the affidavits. In late May 2000, the parties filed their respective proposed findings. In a June 26, 2000 order, the trial court denied the Estate's motion to strike the first motions to dismiss/for summary judgment and granted the defendants' motions to dismiss the Estate's amended complaint with prejudice. Alternatively, the trial court denied the Estate's motion to strike Raymond's and Patricia's affidavits, found that the motion for summary judgment filed in response to the Estate's original complaint was applicable to the Estate's amended complaint, and granted summary judgment to Stoffer Construction, Raymond, and Patricia.

Discussion and Decision

I. Motion to Dismiss

In challenging the trial court's dismissal of its complaint, the Estate makes two main arguments. First, it contends that the trial court's determination that an owner or possessor of a handgun⁴ has no duty to exercise ordinary care in its storage and safekeeping is contrary to prior decisions, public policy, and the common understanding of reasonable persons.⁵ Second, the Estate asserts that its amended complaint should not have been dismissed for failure to state a claim arising from a duty to control Timothy's conduct. The Estate urges that it cannot be said with certainty that it can prove no set of facts entitling it to relief under a duty-to-control theory.

We recently set out the proper standard of review for dismissals:

When reviewing the dismissal of a complaint for failure to state a claim under T.R. 12(B)(6), this court views the pleadings in a light most favorable to the plaintiffs and draws every reasonable inference in favor of the plaintiffs. This court will not assess the sufficiency of facts supporting the complaint, but determines if the complaint states any set of allegations upon which the trial court could grant relief. "To state a claim for relief, a complaint need only contain (1) a short and plain statement of the claim and (2) a demand for relief. See Ind. Trial Rule 8(A)." The rules of procedure, based on notice pleading, do not require a complaint to state all elements of a cause of action. Therefore, a T.R. 12(B)(6) motion should be granted only where it is clear on the face of the complaint that under no circumstances could relief be granted.

A successful T.R. 12(B)(6) motion will be affirmed on appeal when a complaint states a set of facts and circumstances, which, even if true, would not support the relief requested.

Meury v. Eagle-Union Cmty. Sch. Corp., 714 N.E.2d 233, 238 (Ind.Ct.App.1999) (citations omitted), trans. denied.

For a plaintiff to prevail on a claim for negligence, she must show (1) that the defendant owed her a duty to exercise reasonable care; (2) that the defendant breached that duty by failing to conform its conduct to the requisite standard of care; and (3) that the plaintiff sustained injuries that were the proximate result of the defendant's breach. Fast Eddie's v. Hall, 688 N.E.2d 1270, 1272 (Ind.Ct.App.1997), trans. denied. "The duty, when found to exist, is the duty to exercise reasonable care under the circumstances. The duty never changes. However, the standard of conduct required to measure up to that duty varies depending upon the particular circumstances." Stump v. Indiana Equip. Co., 601 N.E.2d 398, 402 (Ind.Ct.App.1992), trans. denied (1993). "[A]bsent a duty, there can be no negligence." Fast Eddie's, 688 N.E.2d at 1272.

"The existence of a duty is a question of law for the court." Barnes v. Antich, 700 N.E.2d 262, 266 (Ind.Ct.App. 1998),trans. denied. "The court balances three factors in determining whether a duty exists: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns." Id. We look at the three factors in turn. As the Estate admits in its reply brief, whether...