Gates v. Town of Chandler, Water Dept.
| Decision Date | 17 December 1999 |
| Docket Number | No. 87A01-9903-CV-98.,87A01-9903-CV-98. |
| Citation | 720 N.E.2d 1192 |
| Parties | Dennis E. GATES and Shelley D. Gates, Appellant-Plaintiffs, v. TOWN OF CHANDLER, WATER DEPARTMENT, Appellee-Defendant. |
| Court | Indiana Appellate Court |
George C. Barnett, Jr., Sean M. Georges, Douglas K. Briody, Bowers, Harrison, Kent & Miller, LLP, Evansville, Indiana, Attorneys for Appellants.
James D. Johnson, Rudolph, Fine, Porter & Johnson, LLP, Evansville, Indiana, Attorney for Appellee.
Dennis and Shelley Gates (collectively "Gates") appeal from the trial court's entry of summary judgment in favor of the Town of Chandler Water Department (the "Water Department"). The sole issue presented for our review is whether the Water Department had a duty to maintain an adequate water supply and water pressure to extinguish a fire at the Gates home.
We affirm.
Dennis and Shelley Gates reside in Newburgh. However, their fire protection services are provided by the neighboring town of Chandler. The Water Department installed a fire hydrant directly across the street from the Gates home. The Water Department charged Gates a monthly fee to maintain the hydrant and the water lines connected to it.1
In March of 1996, the Gates home caught fire. The fire began in the garage, which is separated from the main portion of the house by a connected breezeway. The Newburgh Volunteer Fire Department responded to an emergency call shortly after the fire was discovered. When the firefighters arrived on the scene, the garage was engulfed in flames and the exterior of the breezeway leading to the main structure was also on fire.
The crew immediately sprayed water from its fire engine's water tank on the garage. To keep the fire from spreading to the main portion of the house, the firefighters placed another truck in position to use its "ladder pipe" to direct a stream of water down onto the burning garage. A supply line was then hooked to the fire hydrant located across the street from the Gates home.
Upon opening the hydrant, the firefighters were unable to carry out their initial plan because the hydrant failed to produce an adequate supply of water. Crew members noted that the pressure gauge indicated the water pressure was insufficient.2 As a result, the firefighters devised an alternate plan which resulted in a loss of nearly ten minutes of firefighting efforts. During that time, the fire spread across the breezeway to the main structure of the Gates home. Ultimately, the fire was not extinguished until it had caused significant property damage to the home.
In February of 1998, Gates brought an action against the Water Department alleging that its failure to install and maintain the fire hydrant properly was the proximate cause of substantial damage to his home. The Water Department moved for summary judgment. Following a hearing, the trial court entered summary judgment in favor of the Water Department. Gates now appeals.
In reviewing the trial court's ruling on a motion for summary judgment, this court applies the same standard applied by the trial court. Schnell v. Hayes, 710 N.E.2d 208, 210 (Ind.Ct.App.1999), trans. denied. Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the party opposing summary judgment. Cacdac v. West, 705 N.E.2d 506, 508 (Ind.Ct. App.1999), trans. denied. Even if the trial court does not believe that the non-moving party will be successful at trial, summary judgment should not be entered where material facts conflict or where conflicting inferences are possible. Henshilwood v. Hendricks County, 653 N.E.2d 1062, 1065 (Ind.Ct.App.1995), trans. denied.
The Water Department does not claim immunity from liability as a governmental entity under the Tort Claims Act. See Indiana Code Sections 34-4-16.5-1 et seq.3 Thus, we must consider Gates' claim against the Water Department for negligence. The absence of immunity does not necessarily result in a legally cognizable claim of negligence. Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind.1994). To recover under a theory of negligence, a plaintiff must establish three elements: (1) a duty on the part of the defendant in relation to the plaintiff, (2) a failure by the defendant to conform its conduct to the requisite standard of care, and (3) an injury to the plaintiff proximately caused by the failure. Smith v. Beaty, 639 N.E.2d 1029, 1032 (Ind.Ct.App.1994).
In this case, the issue of duty is dispositive. The existence of a duty, that is, whether the law recognizes any obligation on the part of a particular defendant to conform its conduct to a certain standard for the benefit of the plaintiff, is a question of law for the court. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). The duty of care owed to another arises as a matter of law out of some relationship existing between the parties, and it is for the court to determine whether such relations give rise to a duty. Id.
In its summary judgment, the trial court relied on Boyle v. Anderson Fire Fighters Ass'n, 497 N.E.2d 1073 (Ind.Ct.App.1986), trans. denied. In Boyle, we held:
Although the issue has not been addressed in many years, the common law in Indiana has long recognized that a municipality is not liable to an owner of property destroyed by fire even though the destruction may have resulted from the City's failure to provide suitable equipment or an adequate supply of water with which to fight the fire, i.e., insufficient water pressure, insufficient lengths of hose, or improperly functioning hydrants.
Id. at 1077 (citing Larimore v. Indianapolis Water Co., 197 Ind. 457, 151 N.E. 333 (1926); Trustees v. New Albany Waterworks, 193 Ind. 368, 140 N.E. 540 (1923); Robinson v. City of Evansville, 87 Ind. 334 (1882)). Gates contends that the trial court's reliance on Boyle is misplaced in that Boyle did not address the issue of municipal duty but merely applied the common law rule of sovereign immunity. In addition, Gates asserts that Boyle relied on older cases that were not on point.
trans. denied. In order to recover against a governmental entity for negligence, the plaintiff must show more than a duty owed to the public as a whole. Greathouse, 616 N.E.2d at 368. Rather, there must have been a breach of duty owed to a private individual. Id. Generally, to be private, a duty must be particularized to an individual. Simpson's Food Fair, Inc. v. City of Evansville, 149 Ind.App. 387, 391, 272 N.E.2d 871, 874 (1971). In the context of emergency response services, this court has held that a fire department's attempt to extinguish a fire is made in response to its general duty to protect the safety and welfare of the public. City of Hammond v. Cataldi, 449 N.E.2d 1184, 1188 (Ind.Ct.App.1983). Thus, a special duty is not created if the department's duty is "in no way different from its duty to protect any other citizen." Id.
On appeal, Gates contends that the trial court erred when it granted summary judgment in favor of the Water Department and found, as a matter of law, that the Water Department did not owe a private duty to maintain an adequate water supply and water pressure to serve the Gates home. The Water Department counters that if it owed any such duty, Gates has failed to designate evidence establishing that such duty was anything more than that owed to the public at large. We agree with the Water Department. In Mullin v. Municipal City of South Bend, 639 N.E.2d at 283, our supreme court clarified the distinction between public and private duties. There, a neighbor of the plaintiff called 911 when the neighbor discovered the plaintiff's house was on fire. Id. at 280. When the dispatcher asked if anyone was in the house, the neighbor responded, "I think so." Id. The City of South Bend had a written policy that whenever persons were located in a burning home, an ambulance would be dispatched along with other emergency vehicles. Nevertheless, no ambulance was dispatched until one of the fire units called for an ambulance from the scene. One of the plaintiff's children died and another was injured. Id. In determining whether summary judgment in favor of South Bend was appropriate, the Mullin court adopted the test established in City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861, 863 (1993), requiring that in order to impose a private duty on a governmental defendant, the plaintiff must show: "(1) an explicit assurance by the municipality through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the municipality that inaction could lead to harm; and (3) justifiable and detrimental reliance by the injured party on the municipality's affirmative undertaking." Id. at 284. The Mullin rule is stated in the conjunctive. Thus, the plaintiff must prove all three elements in order to establish that the municipality owed a private duty to him. Id.
Applying this test, our supreme court concluded in Mullin that the plaintiff had failed to show the existence of a private duty. Id. at 285. In reaching its decision, the court reasoned there was no evidence that the City had assured the...
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