Mills v. American Playground Device Co., 2-1278A425
| Decision Date | 16 November 1981 |
| Docket Number | No. 2-1278A425,2-1278A425 |
| Citation | 427 N.E.2d 1130 |
| Court | Indiana Appellate Court |
| Parties | James MILLS, Barbara Mills & Dennis Mills, Appellants (Plaintiff Below) v. AMERICAN PLAYGROUND DEVICE CO. & City of Gas City, Appellees (Defendants Below) |
This action comes before us on the Petition for Rehearing of the unsuccessful appellee, City of Gas City (City) in Mills v. American Playground Device Co. and City of Gas City, Ind., (1980) Ind.App., 405 N.E.2d 621. City claims error in:
1. Our application of the standard of review appropriate to a motion to dismiss rather than the standard of review on a motion for summary judgment; and
2. Our decision that selection of a slide for use in the park is a ministerial rather than a discretionary duty.
City argues its motion for summary judgment (Motion) should have been treated as such, rather than as a Trial Rule 12(C) motion for judgment on the pleadings because in its motion and supporting affidavit it alleged facts outside the pleadings which establish as a matter of law that City had no duty to Mills.
City's pleading entitled "Motion for Summary Judgment" contained three rhetorical paragraphs. The first rhetorical paragraph asserted improper notice; the second, immunity; and the third asserted "the allegations of Plaintiffs' Complaint and the facts which are uncontroverted herein do not establish claim upon which relief can be granted for the reason that no liability can attach to the City for faulty design under circumstances alleged herein." The accompanying memorandum contained three sections aligned in content with the rhetorical paragraphs. The third section, entitled argued City's entitlement to a summary judgment "for the reason of a failure to state a claim upon which relief can be granted" because "no duty exists upon the City ..."
The trial court's entry of May 15, 1978 reveals the hearing was for "further argument on what is denoted 'C' of defendant City of Gas City's motion for summary judgment, i. e., failure of the plaintiffs to state a claim."
The judgment entered on the Motion reads, in part:
...
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City of Tell City v. Noble, 4-1184
...Ind.App., 411 N.E.2d 404, trans. denied; Mills v. American Playground Device Co. (1980), Ind.App., 405 N.E.2d 621, on rehearing, (1981) 427 N.E.2d 1130. See also Board of Commissioners of Delaware County v. Briggs (1975), 167 Ind.App. 96, 337 N.E.2d 852, on rehearing (1976) 167 Ind.App. 96,......
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Paternity of Tompkins, In re
...(1984), Ind.App., 459 N.E.2d 46, 49-50; Mills v. American Playground Device Co. (1980), Ind.App., 405 N.E.2d 621, 626-27, reh. denied 427 N.E.2d 1130 (1981); Anderson v. Anderson (1979), Ind.App., 399 N.E.2d 391, 406. A motion for judgment on the pleadings "tests the law of the claim and no......
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Rodman v. City of Wabash
...concurs. YOUNG, J., dissents without opinion. 1 Mills v. American Playground Device Co. (1980), Ind.App., 405 N.E.2d 621, reh'g denied, 427 N.E.2d 1130.2 State Department of Mental Health v. Allen, supra.3 Hedges v. Rawley (1981), Ind.App., 419 N.E.2d 224.4 Snyder v. Mouser (1971), 149 Ind.......
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Paternity of R.C., Matter of
...(1984), Ind.App., 459 N.E.2d 46, 49-50; Mills v. American Playground Device Co. (1980), Ind.App., 405 N.E.2d 621, 626-27, reh. denied 427 N.E.2d 1130 (1981); Anderson v. Anderson (1979), Ind.App., 399 N.E.2d 391, Since triable issues of fact and a redressable claim were raised by G.M.'s pet......