Klobuchar v. Purdue University

• Decision Date: 24 April 1990
• Docket Number: No. 56A04-8907-CV-314,56A04-8907-CV-314
• Parties: 59 Ed. Law Rep. 1145 Norma KLOBUCHAR, Appellant, v. PURDUE UNIVERSITY, Appellee.
• Court: Indiana Appellate Court

Page 169

553 N.E.2d 169

59 Ed. Law Rep. 1145

Norma KLOBUCHAR, Appellant, v. PURDUE UNIVERSITY, Appellee.

No. 56A04-8907-CV-314.

Court of Appeals of Indiana,

Fourth District.

April 24, 1990.

Sherman and Allegretti, Hammond, for appellant.

Kenneth E. Nowak, Whitted and Buoscio, Merrillville, for appellee.

MILLER, Judge.

Norma Klobuchar appeals the trial court's grant of summary judgment in favor of Purdue University. Norma filed a lawsuit against the University, with a jury demand, seeking damage for injuries she received while a student at the University's Hammond campus. She alleged that, while she was in class, her estranged husband entered her car with an auto theft device. When she returned to her car, he forced her at gunpoint to drive off the campus. Ultimately, he assaulted her, shot her five times, and then committed suicide. Norma claimed her injuries were proximately caused by the University's failure to provide adequate security for the school's parking lots. The University filed its Motion for Summary Judgment which was granted by the court. Norma presents the following issues for review:

1. Whether the University owed Norma, a student, a duty to protect her from criminal assault of a third person; and

2. Whether the University is immune under the Indiana Tort Claims Act, IND. CODE Sec. 34-4-16.5-3.

We affirm.

FACTS

In April 1985, Norma (then 24 years old) was a part-time student at Purdue University at Hammond, Indiana. She had recently separated from her husband David Klobuchar. On April 10, 1985, Norma had numerous telephone conversations with David during the day. He had recently been served with a restraining order in the divorce proceedings and wanted to talk with her about it. Although he was upset about the restraining order, he was not belligerent. Norma went to the University for her 5:30 P.M. math class, parking her car in the school parking lot in front of the building where her class was located. The parking lot was a "permit lot"--parking was allowed only if the vehicle exhibited a parking ticket hung on the rearview mirror. Vehicles in the lot were routinely checked for permits by the campus police and a vehicle without a permit would be given a parking violation citation.

After class she returned to her car. It was still light. She unlocked her car, put her books down, started the car, turned on the radio and put the car in reverse. While looking in the rearview mirror, she heard a rustling noise and saw her husband who had been hiding under some covering. David pointed a gun at her and told her not to do anything to draw attention or he would blow her head off. She proceeded to drive out of the lot and traveled one or two blocks and off the Purdue campus. She became frightened, applied the brakes, opened the car door and tried to run away. David ran after her and struck her on the head with the gun. He then picked her up, threw her in the back of the car and drove away. Hammond police were alerted by witnesses and soon began following Norma's car. During the drive, David told her his intentions were to kill them both because he did not want the divorce. When Norma saw the police, she jumped to the back seat of the car, started to scream, and signaled the police. The police turned on the emergency lights of the squad car which apparently agitated David. He stopped the car, shot Norma five times with his .44 Magnum handgun, then fired the sixth round into his own head, killing himself. Norma was seriously injured by the gunshots.

In April of 1985 the police staff of Purdue University consisted of a chief, a patrol sargeant and five patrolmen. Normally, there would have been two patrolmen on duty, one in a patrol car and one on foot. Purdue Police Officer Hillier testified in her deposition that there were two persons on duty the evening of April 10, which contradicted her earlier statements to the Hammond police that there was only one person on duty. There were no extracurricular activities or sporting events scheduled on campus that evening. There was nothing unusual about the crowds or number of students in the area.

DECISION

The standard of appellate review of summary judgment is the same one used by the trial court. A motion for summary judgment may be sustained where the pleadings and other matters filed with the court reveal no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Swanson v. Wabash College (1987), Ind.App., 504 N.E.2d 327. All evidence is construed in favor of the nonmoving party and all doubts are resolved against the moving party. Craig v. Whiteford Nationalease, Inc. (1989), Ind.App., 538 N.E.2d 283.

Norma contends that the University's Motion for Summary Judgment was based on two theories:

(1) The University did not owe Norma a general duty to protect her from the criminal assault of a third person; and

(2) her claim against the University was barred by the Indiana Tort Claims Act (the ITCA).

She asserts that there were no facts presented in the pleadings or discovery which would entitle the University to summary judgment as to the first theory. She also asserts that recent case law suggests the University is not protected by the ITCA. She further contends summary judgment is inappropriate in negligence actions because the issues of negligence, contributory negligence, causation and reasonable care are for the trier of fact to determine. Jackson v. Warrum (1989), Ind.App., 535 N.E.2d 1207. However, it is for the court to first determine "whether the law recognizes any obligation on the part of a particular defendant to conform his conduct to a certain standard for the benefit of the plaintiff." Swanson, supra; Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280. A general duty versus a special duty is a matter of law for the court to decide. Doe v. Hendricks (1979), N.M.Ct.App., 92 N.M. 499, 590 P.2d 647; Crouch v. Hall (1980), Ind.App., 406 N.E.2d 303. We agree with the University that if the court determined that there was no contested issue of material fact giving rise to a special or private duty, then summary judgment is appropriate.

Norma concedes the University is a governmental entity, but argues the University owes her a special duty to protect her from the criminal acts of a third party--in this case her husband--because she is a student. Our supreme court has imposed a duty upon school authorities to exercise reasonable care for the safety and supervision of children. Miller v. Griesel (1974), 261 Ind. 604, 612, 308 N.E.2d 701, 706. However, schools are not intended to be insurers of the safety of their pupils, neither are they strictly liable to them for any injuries they may incur. Id. at 612, 308 N.E.2d at 706. College students are not children and colleges "are not expected to assume a role anything akin to in loco parentis or a general insurer." Campbell v. Board of Trustees of Wabash College (1986), Ind.App., 495 N.E.2d 227, 232; Swanson, supra. Our court has also held that:

[c]ivil liability of a governmental unit may not be predicated upon a duty owed to the public generally, but only upon a private duty which must be particularized as to an individual. Simpson's Food Fair, Inc. v. City of Evansville (1971), 149 Ind.App. 387, 272 N.E.2d 871; Crouch v. Hall (1980), Ind.App., 406 N.E.2d 303.

State v. Flanigan (1986), Ind.App., 489 N.E.2d 1216 (Emphasis added). We agree with the University that the duty owed to Norma was the same general duty afforded the public, in this case the student body. This duty arises out of the law enforcement function of the school in policing the parking areas. Norma admits that neither she, nor anyone else, told the University that her husband might be a threat to her. She herself had no fear of her husband until she saw him in the car with the gun. She knew nothing that would have alerted the University to anticipate his violent attack on her.

Norma suggests cases in other jurisdictions support her position that the University is under a duty to protect her from the criminal acts of a third person. She cites Mullins v. Pine Manor College (1983), 389 Mass. 47, 449 N.E.2d 331, where a eighteen (18) year old female student was attacked in the school's dormitory. The Massachusetts Supreme Court affirmed the jury verdict holding that the college had a duty to provide security for its students. The Massachusetts court also held that a duty voluntarily assumed must be performed with due care. Mullins is, however, distinguishable from the present case in that (1) Pine Manor College was a private school, not a state institution; (2) the student was attacked in a dormitory, not abducted from a parking lot in daylight; and (3) the student was attacked by a stranger, not her own husband. Furthermore, there was a vigorous dissent in the Massachusetts case.

A more analogous case to the present one is Peterson v. San Francisco Community College District (1984), 205 Cal.Rptr. 842, 36 Cal.3d 799, 685 P.2d 1193, where a college student was attacked on a stairway in a parking lot by an unknown person who had been hiding in foilage adjacent to the stairway. The student, as here, had been issued a parking permit for a fee. The trial court dismissed the student's suit against the college. On appeal, the California Supreme Court held that the college had a duty to exercise reasonable care to protect students from reasonably foreseeable assaults on campus, but the college was immune from liability for failure to provide adequate police protection under a governmental tort immunity statute. ¹ However, a second cause of action was allowed under a theory that the college had a duty to warn students of known dangers and the college could be held liable for dangerous conditions the college created--the failure to trim the foilage around the parking lot stairway where the attack occurred. In that case, there had been similar attacks...