King v. Northeast Sec., Inc., 49A02-9907-CV-498.
| Citation | 732 N.E.2d 824 |
| Decision Date | 25 July 2000 |
| Docket Number | No. 49A02-9907-CV-498.,49A02-9907-CV-498. |
| Parties | Nicholas S. KING b/n/f Randall S. King, Randall S. King and Peggy L. King, Appellants-Plaintiffs, v. NORTHEAST SECURITY, INC. and Metropolitan School District of Washington Township, Appellees-Defendants. |
| Court | Court of Appeals of Indiana |
C. Dennis Wegner, Jeffrey K. Orr, C. Dennis Wegner & Assoc. P.C., Indianapolis, Indiana, Attorneys for Appellants.
Andrew P. Wirick, Hume Smith Geddes Green & Simmons, John P. Daly, Jr., Mark A. Holloway, Stephenson Daly Morow & Kurnick, Indianapolis, Indiana, Attorneys for Appellees.
Appellants-Plaintiffs Nicholas S. King (King) b/n/f Randall S. King (Randall), Randall S. King and Peggy L. King (Peggy), King's parents, appeal the trial court's ruling granting summary judgment in favor of Northeast Security, Inc. (Northeast) and the Metropolitan School District of Washington Township (School), on King's complaint for damages against Northeast and the School for personal injuries he sustained after being beaten by students in a parking lot at North Central High School (North Central) in Indianapolis, Indiana. In his complaint, King alleged that Northeast and the School breached a private duty of care to provide security services to protect him from acts of violence at the school. In granting summary judgment in favor of Northeast and the School, the trial court concluded that neither the School nor Northeast owed a private duty to King, as an individual student of the school.
We affirm in part, reverse in part and remand for further proceedings.
On appeal, King raises four issues, which we consolidate and restate as two dispositive issues:
1. Whether the trial court erred by granting summary judgment in favor of the School on the ground that the School, as a governmental entity, did not owe King a private duty of care.
2. Whether the trial court erred by granting summary judgment in favor of Northeast on the ground that the contract between the School, a political subdivision, and Northeast, did not create a duty running from Northeast to King because the contract was for the benefit of the students of North Central as a whole, and not a particularized obligation to any single student of the school, and therefore, an individual student, such as King, was not a third party beneficiary of the contract.
On April 18, 1996, King was a student at North Central. At approximately 3:00 p.m. on that day, King was assaulted in the west parking lot at the school, and suffered severe dental and bodily injuries.
On or about November 1, 1995, the School and Northeast entered into a contract for Northeast to provide security services for North Central, including three special deputies to patrol outside between 7:00 a.m. and 3:30 p.m. At the time King was assaulted, the security guard on duty had gone inside the school building to make a personal telephone call.
On October 31, 1996, King filed an action for damages against the School and Northeast as a result of their alleged negligence. On December 3, 1998, Northeast filed a motion for summary judgment, claiming that it did not breach any duty owed to King and that it could not have reasonably foreseen the criminal attack that occurred. A hearing was held on Northeast's motion on March 22, 1999, and on April 5, 1999, the trial court granted Northeast's motion for summary judgment, concluding that King was not a third party beneficiary to the contract between Northeast and the School, and therefore, Northeast did not owe a duty to King specifically. On March 3, 1999, the School filed a motion for summary judgment, claiming that it did not owe a private duty to King. A hearing was held on the School's motion on June 15, 1999, and on June 22, 1999, the trial court granted the School's motion for summary judgment, concluding that based upon the three-part test from Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind.1994), the School did not owe a private duty to King. Additional facts will be supplied when necessary.
Summary judgment is appropriate where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind.Trial Rule 56(C). Our standard of review is well established. Although King, the non-moving party, has the burden of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court. Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 280-81 (Ind.1994). On summary judgment, all facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Wright v. Carter, 622 N.E.2d 170, 171 (Ind.1993). To recover under a theory of negligence, the plaintiff must establish: (1) a duty on the part of the defendant to conform its conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure on the part of the defendant to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff proximately caused by the breach. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). Because the trial court granted summary judgment on the first element of negligence—duty— we address only that issue. The issue of whether there is a legal duty owed by one party to another in a negligence action is a pure question of law. Williams v. R.H. Marlin, Inc., 656 N.E.2d 1145, 1155 (Ind. Ct.App.1995). However, factual questions may be interwoven in this issue, thus rendering the existence of a duty a mixed question of law and fact, ultimately to be resolved by the fact-finder. Jacques v. Allied Bldg. Services of Indiana, Inc., 717 N.E.2d 606, 608 (Ind.Ct.App.1999).
King argues that the trial court erred in granting summary judgment in favor of the School because a private duty existed between him and the School based upon the School's negligent affirmative acts. Specifically, King contends that the School, as a governmental entity, by engaging in the affirmative acts of employing security, advising King to stop riding the school bus, and its supervision of the security guards, thereby created King's perilous situation, resulting in his injuries. Thus, King alleges that the School engaged in affirmative acts of negligence that created the perilous situation, thereby dispensing with a public duty-private duty analysis under Mullin. Because our supreme court has modified the Mullin test to only apply to situations involving emergency services, Benton v. City of Oakland City, 721 N.E.2d 224 (Ind.1999), and the trial court's grant of summary judgment specifically relied on Mullin to conclude that the evidence did not satisfy the Mullin test in order for the School to be held liable, we cannot affirm the trial court's grant of summary judgment in the School's favor on those grounds. Therefore, we review this case de novo, to determine if there is evidence independent of a Mullin test analysis to affirm summary judgment in the School's favor.
In addition, King argues that the School "should not be permitted to cloak its negligent acts under the cover of law enforcement immunity." (Appellant's Reply Brief p. 11). Essentially, King contends that the School's affirmative act of hiring security guards to be observant of criminal activity in the parking lots waived its law enforcement immunity. Ind.Code § 34-4-16.5-3(7), recodified as Ind.Code § 34-13-3-3(7), states that a governmental entity is not liable if a loss results from the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment. Nevertheless, the trial court found that whether or not the School is immune is not necessarily determinative of whether there is a legally cognizable claim of negligence.
On June 22, 1999, the trial court granted summary judgment in favor of the School, concluding that:
7. The existence of a duty is a question of law for the Court. Id.
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King v. Northeast Security, Inc.
......Accordingly, the Court of Appeals reversed the trial court's summary judgment order as to the District. King v. Northeast Sec., Inc., 732 N.E.2d 824, 840-41 (Ind.Ct.App.2000) . Both King and the District sought transfer, which we previously granted. King v. Northeast Sec., 753 N.E.2d 10 (Ind.2001). . Discussion . I. The School District . The Court of Appeals reversed ......