Mullin v. Municipal City of South Bend

• Decision Date: 19 August 1994
• Docket Number: No. 71S03-9408-CV758,71S03-9408-CV758
• Citation: 639 N.E.2d 278
• Parties: Jeri A. MULLIN, Individually, and as custodial parent of Kathleen Mullin and Shawn Mullin, deceased, Appellants (Plaintiffs below), v. MUNICIPAL CITY OF SOUTH BEND, Appellee (Defendant below).
• Court: Indiana Supreme Court

Page 278

639 N.E.2d 278

Jeri A. MULLIN, Individually, and as custodial parent of

Kathleen Mullin and Shawn Mullin, deceased, Appellants (Plaintiffs below), v. MUNICIPAL CITY OF SOUTH BEND, Appellee (Defendant below).

No. 71S03-9408-CV758.

Supreme Court of Indiana.

Aug. 19, 1994.

Robert D. Lee, William T. Webb, Hardig, Lee & Groves, South Bend, for appellant, Jeri A. Mullin.

Robert C. Rosenfeld, Deputy City Atty., South Bend, for appellee, City of South Bend.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

Jeri Mullin lived in South Bend with her two children, Shawn and Kathleen. At 5:27 a.m. on November 5, 1985, a neighbor reported a fire at the Mullin household to the 911 Emergency Dispatch of the South Bend Police Department. When the dispatcher asked if anyone was inside the house, the neighbor responded "I think so." Fire trucks but no ambulances were dispatched to the scene. Once there, one of the fire units requested an ambulance, the first of which arrived at 5:44 a.m. Shawn died; Kathleen was injured. Mullin filed suit against the City of South Bend, alleging that the City was negligent for the dispatcher's failure to send an ambulance to the scene immediately.

The following notice had been posted in the dispatchers' break-room at the police department in June, 1984:

On Friday 6/21/84 the Communications Supervisors and the Fire Dept. Chiefs met to discuss the Status of the Fire Dispatch. This meeting was very productive and out of it came several suggestions that we need to impliment [sic] in order that we can better searve[sic] the public interest and insure that we are doing what is desired in the area of Fire Dispatch; Following are the changes and or additions effective with this Memo.... MEDICS will be dispatched to all calls involving HIGH RISES, NURSING HOMES, RIVER RUNS, SHOPPING MALLS upon reiept [sic] of a Fire Call or Fire Alarm. In addition the MEDIC will be dispatched to ALL FIRE CALLS WERE [sic] SOMEONE IS THOUGHT TO BE INSIDE. IF UNK[NOWN] THEN DO NOT SEND THE MEDICS.

The City moved for summary judgment arguing that it was immune from liability under the Tort Claims Act, Indiana Code § 34-4-16.5-3(6) & (7) (1993), and that it breached no private duty owed to the plaintiffs. The trial court granted the motion finding as a matter of law that the City owed no private duty to Mullin or her children. The trial court did not decide whether the City is immune under the Indiana Tort Claims Act. Mullin appealed; the Court of Appeals affirmed the entry of summary judgment on the same grounds. Mullin v. Municipal City of South Bend (1993), Ind.App., 618 N.E.2d 42.

Mullin now seeks transfer, and asks that we hold that the City is not immune and recognize that the City was under a common law duty to send an ambulance to her home once the dispatcher knew or reasonably should have known that the Mullin house was on fire and occupied. We address the immunity and duty questions in turn.

Standard of Review

This case was resolved by summary judgment. Our standard of review is well-established. The reviewing court faces the same issues that were before the trial court and follows the same process. Greathouse v. Armstrong (1993), Ind., 616 N.E.2d 364, 366. Although the party appealing from the grant of summary judgment has the burden of persuading the court that the grant of summary judgment was erroneous, the reviewing court carefully scrutinizes the trial court's decision to assure that the party against whom summary judgment was entered was not improperly prevented from having its day in court. Id.

Summary judgment is appropriate only if the pleadings and evidence sanctioned by Indiana Trial Rule 56(C) show "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Even if the facts are undisputed, summary judgment is not proper if those undisputed facts "give rise to conflicting inferences which would alter the outcome." Bochnowski v. Peoples Federal Sav. & Loan Ass'n (1991), Ind., 571 N.E.2d 282, 285. The burden is on the moving party to prove the non-existence of a genuine issue of material fact. Oelling v. Rao (1992), Ind., 593 N.E.2d 189, 190. If the movant sustains this burden, the opponent may not rest upon the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. T.R. 56(E). If there is any doubt, the motion should be resolved in favor of the party opposing the motion. Oelling, 593 N.E.2d at 190.

Immunity

Because immunity, if applicable, renders moot the issue of duty in this negligence claim, we address it first. Peavler v. Monroe County Bd. of Comm'rs. (1988), Ind., 528 N.E.2d 40, 46-47.

The immunity asserted by the City is regulated by the Tort Claims Act, Indiana Code §§ 34-4-16.5-1 through 34-4-16.5-22 (1993). Governmental entities, such as cities, are subject to liability for the torts committed by their employees unless one of the exceptions in the Act applies. Peavler, 528 N.E.2d at 42. Because the Act is in derogation of the common law, we construe it narrowly against the grant of immunity. Hinshaw v. Board of Comm'rs. of Jay County (1993), Ind., 611 N.E.2d 637, 639. The party seeking immunity bears the burden of establishing its conduct comes within the Act. Peavler, 528 N.E.2d at 46.

Indiana Code § 34-4-16.5-3 provides in pertinent part:

A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from:

....

(6) the performance of a discretionary function.

[or]

(7) 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.

Immunity for discretionary functions encompasses the notion that certain types of decisions made by the executive and legislative branches of government should not be subject to judicial review because of the separation of powers doctrine, because litigation might have a "chilling effect" on the government's resolution of difficult policy issues, or because certain governmental decisions cannot be adequately reviewed using a traditional tort standard of negligence. Peavler, 528 N.E.2d at 44. Whether a particular governmental activity is a discretionary function is a question for the court, not the factfinder. Id. at 46.

Indiana applies the "planning/operation" test for determining whether governmental acts are "discretionary." Id. The test is not a bright-line one, but instead is a function of the particular circumstances of each case. As a general statement, immune planning activities include the formulation of basic policy on matters such as the allocation of resources. Id. at 45. ¹ Thus, for example under this test, placement of traffic signs might be a discretionary function, Peavler, 528 N.E.2d at 48, but is not necessarily so. Board of Comm'rs. of Adams County v. Price (1992), Ind.App., 587 N.E.2d 1326, 1331, trans. denied. See also Gerbers, Ltd. v. Wells County Drainage Bd. (1993), Ind.App., 608 N.E.2d 997, 1000, trans. denied (county drain board's approval of filling drain was discretionary); Cromer v. City of Indianapolis (1989), Ind.App., 540 N.E.2d 663, 666 (decision of city council not to redesign road fell under discretionary immunity); City of Seymour v. Onyx Paving Co. (1989), Ind.App., 541 N.E.2d 951, 954, reh'g denied, trans. denied (city's issuance of a stop work order was discretionary function); and Boyle v. Anderson Fire Fighters Ass'n Local 1262, AFL-CIO (1986), Ind.App., 497 N.E.2d 1073, 1078, trans. denied (city's decision concerning alternative means to fight fire after fire fighters went on strike is exercise of discretion).

Most instructive is Greathouse v. Armstrong (1993), Ind., 616 N.E.2d 364. In that case, a motorcyclist was killed when he collided with a bull that had wandered onto the highway. Two hours before the collision, the sheriff's office was notified that cattle were loose. A dispatcher began attempts to identify and contact the owner of the cattle, but without success. Plaintiff alleged that the sheriff's department was negligent in its attempts to do so. Seeking immunity under Indiana Code § 34-4-16.5-3(6), the sheriff contended that because the dispatcher had had to prioritize competing demands, the dispatcher had engaged in policy formulation. This Court rejected that characterization of the dispatcher's activities. Instead, the record showed that the dispatcher was merely following a pre-determined policy for locating the owners of stray livestock. Thus, the decisions made by the dispatcher about whom to contact and when were merely operational. Greathouse, 616 N.E.2d at 367. As Justice DeBruler wrote for the Court, "If policy formulation included every act which involves any element of choice, judgment or ability to make responsible decisions, every act would then fall within the discretionary function exception." Id. at 368.

As Greathouse and Peavler suggest, the City's decision to adopt a policy limiting the circumstances that ambulances would be sent to fires might well be a discretionary activity of city government. However, the outcome of this case does not depend upon whether the City is negligent for having adopted such a policy, but rather whether the City was subject to liability because the policy was not followed.

The City argues that dispatchers were required to exercise judgment when deciding whether to send an ambulance and that this judgment constituted the type of policy decisions covered by the Act. As such, its argument is the same one rejected in Greathouse. The dispatcher may have exercised judgment in deciding whether to send an ambulance to the fire, but such judgment was exercised only in the context of following a pre-determined policy.

The City's claim of immunity under Indiana Code § 34-4-16.5-3(7) is also misplaced. That section provides immunity for "the adoption and enforcement of or...