King v. Northeast Security, Inc.

• Decision Date: 27 June 2003
• Docket Number: No. 49S02-0104-CV-193.,49S02-0104-CV-193.
• Parties: Nicholas S. KING, b/n/f Randall S. King, Randall King and Peggy L. King, Appellants (Plaintiffs), v. NORTHEAST SECURITY, INC. and Metropolitan School District of Washington Township, Appellees (Defendants).
• Court: Indiana Supreme Court

790 N.E.2d 474

Nicholas S. KING, b/n/f Randall S. King, Randall King and Peggy L. King, Appellants (Plaintiffs), v. NORTHEAST SECURITY, INC. and Metropolitan School District of Washington Township, Appellees (Defendants).

No. 49S02-0104-CV-193.

Supreme Court of Indiana.

June 27, 2003.

C. Dennis Wegner, Jeffrey K. Orr, C. Dennis Wegner & Assoc., P.C., Indianapolis, IN, Attorneys for Appellants.

Andrew P. Wirick, Hume, Smith, Geddes, Green & Simmons, LLP, John P. Daly, Jr., Mark A. Holloway, Stephenson, Daly, Morow & Kurnick, David M. Mattingly, Mary Nold Larimore, Ice Miller, Indianapolis, IN, Attorneys for Appellees.

CIVIL TRANSFER

RUCKER, Justice.

In this appeal, we hold that a school district is not immune from a claim that the district failed to take reasonable steps to provide security for persons on its premises. We further hold that a security service employed by a school district may be liable for negligence in carrying out its contractually assumed obligations.

Facts and Procedural History

After some incidents of criminal mischief during the previous two years, the Assistant Superintendent for the Metropolitan School District of Washington Township ("the District") entered into a contract with Northeast Security, Inc. ("Northeast") for security services at North Central High School in the 1995-96 school year. Specifically, Northeast was to provide three uniformed Special Deputies positioned outside the school in marked white security vehicles from 7:00 a.m. to 3:30 p.m. The Special Deputies were to perform the following duties:

Provide exterior patrols at checkpoints for all North Central High School buildings by the means of three vehicle patrols occupied by three Marion County Special Deputies provided and employed by Northeast Security. These officers are trained personnel and understand the procedures of patrol. They will also be responsible for insuring all personnel that enter the premise[s] are possessing the proper identification. They are to be observant of any criminal activity which may occur in the parking lots and to the exterior of the building.

R. at 53. Northeast was to be paid $6,375 every two weeks for these services.

On April 18, 1996, the Northeast employee posted in the parking lot was inside the school building making a personal telephone call when classes were dismissed at 3:00 p.m. As Nicholas King stood in the school parking lot waiting for a ride home with another student, a large crowd approached. After a verbal exchange, the crowd increased and some began yelling and screaming. Ultimately a student struck King, and then others joined in. Finally, someone yelled that the police were coming and the crowd of students quickly dispersed. One eyewitness stated he was one of the last students to leave and never saw the police. As a result of the beating, King suffered two fractures to his jaw as well as several lacerations and bruises to his head and body.

King sued both Northeast and the District. Both defendants moved for summary judgment on the ground that neither owed King a duty to protect him from the criminal acts of third parties. The trial court granted summary judgment in favor of Northeast, holding that King was not a third party beneficiary of the security services agreement between Northeast and the District. The trial court also granted summary judgment in favor of the District on the ground that, as a governmental entity, it did not owe a private duty to King to protect him from the alleged harm. King appealed.

The Court of Appeals affirmed summary judgment in favor of Northeast, but held that the District could be liable to King for breach of its duty to supervise the safety of its students. 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 the trial court's grant of summary judgment in favor of the District, finding the District owed a duty to exercise reasonable care for the safety of students under its authority. Id. at 833, 840-41. The District concedes that it had this general duty, but contends that the District is protected by governmental immunity under the Tort Claims Act and a common law doctrine that there is no duty to protect against criminal activity of others. In the alternative, the District argues that even if it is not immune, there is no breach of duty because the District took reasonable steps for the safety of its students.

A. Common Law Immunity

For an interesting account of the origins of sovereign immunity at common law, see Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40, 41-42 (Ind.1988). For these purposes, it is sufficient to note that Indiana, like many jurisdictions, over the years found the doctrine increasingly unsatisfactory. In 1972, in Campbell v. State, 259 Ind. 55, 284 N.E.2d 733, 736-37 (1972), this Court concluded that the doctrine of sovereign immunity was an outmoded concept in today's society, and suggested that the proper forum for any debate over governmental immunity was the legislature. Accordingly, Campbell held that governmental units would generally no longer be shielded by sovereign immunity. Id. However, Campbell cited three situations where a governmental unit would remain immune from liability for acts or omissions that result in personal injuries. These were: (1) where a city or state fails to provide adequate police protection to prevent crime; (2) where a state official makes an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment; and (3) where judicial decision-making is challenged. Id. at 737.

In response to Campbell, in 1974 the Indiana legislature enacted the Indiana Tort Claims Act ("ITCA") which identified a list of governmental activities, now twenty-two in number, that are immunized from tort liability. See Ind.Code § 34-13-3-3. After a number of detours since that time, Campbell was largely reaffirmed in Benton v. City of Oakland City, 721 N.E.2d 224 (Ind.1999). Thus, some common law immunity doctrines remain despite the ITCA's codification of much of Indiana's governmental immunity law.

Benton held that a municipality could be held liable for failure to warn of a dangerous condition in a municipally operated swimming facility. Benton did away altogether with a malfeasance/nonfeasance test of immunity. It also expressly limited a public/private duty test of immunity to claims for failure to provide emergency services.¹Id. at 233. King's claim here is therefore not governed by either doctrine. Benton spoke in terms of duty rather than immunity:

We hold that Campbell is properly applied by presuming that a governmental unit is bound by the same duty of care as a non-governmental unit except where the duty alleged to have been breached is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make correct judicial decisions) that it should be treated as one as well.

Id. at 230. To say the governmental entity is immune for acts or omissions in described areas is the functional equivalent of asserting the entity has no duty to anyone in carrying out those activities. Benton held that under common law, governmental units have "the same duty of care as non-governmental entities," with the exception of the three Campbell areas. In immunity terms, the governmental unit is immune under the common law only if it is engaged in an activity closely related to one of the three areas identified in Campbell.

Based on precedent establishing a duty to operate public facilities, Benton rejected common law immunity for negligent operation of a municipal swimming facility. Id. at 233-34. Precedent is also against the District's claim of immunity from King's claim. We have held repeatedly that school districts can be held liable for failure to take reasonable steps to provide security for their students. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 974 (Ind.2001); Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 553 (Ind.1987); Norman v. Turkey Run Cmty. Sch. Corp., 274 Ind. 310, 411 N.E.2d 614, 617 (1980); Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701, 706 (1974). In Benton duty terms, the school district has a duty to take reasonable steps for the protection of its students. In immunity terms, failure to take reasonable safety precautions is not within the common law immunity for failure to prevent crime.

The District relies on Simpson's Food Fair, Inc. v. City of Evansville, 149 Ind. App. 387, 272 N.E.2d 871 (1971), for its claim of common law immunity. In that case, city police were held immune from liability for failing to prevent crime in a store located in a high crime area. The District contends that if immunity is not granted for a school's failure to prevent crime, then schools, school administrators, and school boards will be "second-guessed by juries for the measures they should have or could have taken to prevent criminal conduct of any student." Appellee's Br. in Supp. of Pet. to Trans. at 5.

It is a matter for the legislature to the extent that school districts or other governmental agencies whose mission is not law enforcement are exposed to undesired liability. To the extent the District asserts common law immunity, we think the school's activities here are more "closely akin" to those of landowners or businesses generally that must provide reasonable security for their patrons and guests. See Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968, 974 (Ind.1999). Indeed, there is specific precedent on this point. See Miller, 308 N.E.2d at 706 (recognizing that school...