Koop v. Bailey, No. 57A03-8605-CV-134

Docket NºNo. 57A03-8605-CV-134
Citation502 N.E.2d 116
Case DateDecember 29, 1986
CourtCourt of Appeals of Indiana

Page 116

502 N.E.2d 116
Christopher J. KOOP, Appellant (Plaintiff Below),
v.
Jacob BAILEY, Margaret Bailey, John Baxle a/k/a John Bailey,
and City of Fort Wayne, Appellees (Defendants Below).
No. 57A03-8605-CV-134.
Court of Appeals of Indiana,
Third District.
Dec. 29, 1986.

J. Frank Kimbrough, Wilks, Kimbrough, and Myers, Fort Wayne, for appellant.

Page 117

Alan Verplanck, Thomas J. Markle, Barrett & McNagny, Fort Wayne, for appellees.

STATON, Presiding Judge.

Koop challenges the trial court's granting of a partial summary judgment to defendants, Jacob and Margaret Bailey. The only issue upon appeal is whether the court erred.

We affirm.

Baxle, the son of Jacob and Margaret Bailey, decided to visit his parents who lived in Fort Wayne, Indiana. On the morning of June 27, 1982, Baxle became angry with his father and a heated, verbally abusive confrontation developed. Later, Baxle threatened to kill his father.

Shortly thereafter, the Baileys left their home to visit friends for the day, leaving Baxle there alone. When the Baileys returned that evening, Baxle shot Mr. Bailey with a shotgun that he kept in his bedroom. He then barricaded himself inside the house. Mr. Bailey had firearms and ammunition in the house, but none was used by Baxle.

Fort Wayne City Police were called to the scene. They, in turn, requested that the Allen County Police Department Special Weapons and Tactics (SWAT) team join them there. The SWAT team is a specialized group of police officers trained to handle volatile situations that routine police officers cannot handle. One function of the group is to provide armed intervention when necessary.

Koop, an Allen County police officer, and a graduate of the Indiana Law Enforcement Academy, was a volunteer SWAT team member and had been for approximately a year and a half.

Koop responded to the call, and upon his arrival at the Bailey residence, he was told who Baxle was, was shown a picture of Baxle, and was informed of Baxle's history of mental problems.

Koop waited in the SWAT vehicle for a number of hours until it was determined that negotiations had failed and armed intervention would be necessary. Koop was assigned the duty of determining the location of Baxle inside the house. In attempting to do so, Koop was shot by Baxle.

It was later determined that Baxle had used his own gun to shoot both Mr. Bailey and Koop. Mr. Bailey's deposition states that Baxle did not use his father's ammunition in the shootings.

In reviewing a grant of summary judgment, we take all allegations of the non-moving party's affidavit as true, and we liberally construe depositions, admissions, answers to interrogatories, and testimony in favor of the non-moving party. Podgorny v. Great Central Ins. Co. (1974), 160 Ind.App. 244, 311 N.E.2d 640, 648.

Summary judgment then becomes appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ind. Rules of Procedure, Trial Rule 56(C). The Court must also determine whether the trial court properly applied the law. Tippecanoe Sanitary Landfill, Inc. v. Bd. of County Commissioners of Tippecanoe County (1983), Ind.App., 455 N.E.2d 971, 974, trans. denied.

To determine whether the trial court erred in granting the Baileys' motion for summary judgment, it is necessary to determine what, if any, duty was owed by the Baileys to Koop, and whether the complaint and the facts before the court were sufficient to allege a breach of such duty. If there is no duty, or if the facts alleged did not constitute a breach of the duty found owing, the action of the trial court was correct.

The Indiana Supreme Court has held that a fireman entering another's property to perform an official duty is a licensee by permission of law, and as such is entitled to the same duty owed other "mere licensees." Woodruff, Adm. v. Bowen (1893), 136 Ind. 431, 34 N.E. 1113...

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22 practice notes
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Febrero 1989
    ...in the trial court. E.g. Rodgers v. Rodgers (1987), Ind.App., 503 N.E.2d 1255, 1257, trans. denied; Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, 118, n. 3; Thompson v. Daviess-Martin County REMC (1985), Ind.App., 486 N.E.2d 1102, 1104. Accord, Singleton v. Wulff (1976), 428 U.S. 106, 12......
  • Carson v. Headrick
    • United States
    • Supreme Court of Tennessee
    • 5 Junio 1995
    ...Corp v. White, 187 Ga.App. 759, 371 S.E.2d 233 (1988); Kennedy v. Tri-City Health Ctr., 590 N.E.2d 140 (Ind.Ct.App.1992); Koop v. Bailey, 502 N.E.2d 116 (Ind.Ct.App.1986); Moreno v. Marrs, 102 N.M. 373, 695 P.2d 1322 In fact, only two jurisdictions, Oregon by court decision, and Minnesota b......
  • Heck v. Robey, No. 63S01-9503-CV-294
    • United States
    • Indiana Supreme Court of Indiana
    • 22 Diciembre 1995
    ...495 N.E.2d 211, 215. The Court of Appeals also expanded the doctrine to include police officers, Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, 117-18. The Court of Appeals recently declined to extend the fireman's rule to building inspectors. Sam v. Wesley (1995), Ind.App., 647 N.E.2d 38......
  • Finley v. Patterson
    • United States
    • Supreme Court of Alabama
    • 13 Junio 1997
    ...owner had no duty to protect when the risk the police officer was subjected to was one inherent in that occupation); Koop v. Bailey, 502 N.E.2d 116 (Ind.App.1986) (holding homeowners not liable to member of police SWAT team who was shot by the homeowners' son while the officer responded in ......
  • Request a trial to view additional results
22 cases
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Febrero 1989
    ...in the trial court. E.g. Rodgers v. Rodgers (1987), Ind.App., 503 N.E.2d 1255, 1257, trans. denied; Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, 118, n. 3; Thompson v. Daviess-Martin County REMC (1985), Ind.App., 486 N.E.2d 1102, 1104. Accord, Singleton v. Wulff (1976), 428 U.S. 106, 12......
  • Carson v. Headrick
    • United States
    • Supreme Court of Tennessee
    • 5 Junio 1995
    ...Corp v. White, 187 Ga.App. 759, 371 S.E.2d 233 (1988); Kennedy v. Tri-City Health Ctr., 590 N.E.2d 140 (Ind.Ct.App.1992); Koop v. Bailey, 502 N.E.2d 116 (Ind.Ct.App.1986); Moreno v. Marrs, 102 N.M. 373, 695 P.2d 1322 In fact, only two jurisdictions, Oregon by court decision, and Minnesota b......
  • Heck v. Robey, No. 63S01-9503-CV-294
    • United States
    • Indiana Supreme Court of Indiana
    • 22 Diciembre 1995
    ...495 N.E.2d 211, 215. The Court of Appeals also expanded the doctrine to include police officers, Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, 117-18. The Court of Appeals recently declined to extend the fireman's rule to building inspectors. Sam v. Wesley (1995), Ind.App., 647 N.E.2d 38......
  • Finley v. Patterson
    • United States
    • Supreme Court of Alabama
    • 13 Junio 1997
    ...owner had no duty to protect when the risk the police officer was subjected to was one inherent in that occupation); Koop v. Bailey, 502 N.E.2d 116 (Ind.App.1986) (holding homeowners not liable to member of police SWAT team who was shot by the homeowners' son while the officer responded in ......
  • Request a trial to view additional results

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