Plummer v. Board of Com'rs of St. Joseph County

• Decision Date: 26 July 1995
• Docket Number: No. 71A03-9410-CV-384,71A03-9410-CV-384
• Parties: Danny PLUMMER and Jackie Plummer, as Custodial Parents of Jamie Plummer, Deceased, Appellants-Plaintiffs, v. BOARD OF COMMISSIONERS OF ST. JOSEPH COUNTY, Indiana and St. Joseph County Parks Department, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 519

653 N.E.2d 519

Danny PLUMMER and Jackie Plummer, as Custodial Parents of

Jamie Plummer, Deceased, Appellants-Plaintiffs, v. BOARD OF COMMISSIONERS OF ST. JOSEPH COUNTY, Indiana and St.

Joseph County Parks Department, Appellees-Defendants.

No. 71A03-9410-CV-384.

Court of Appeals of Indiana.

July 26, 1995.

Transfer Denied Jan. 11, 1996.

Daniel H. Pfeifer, Jeffrey J. Stesiak, Sweeney, Pfeifer & Anderson, South Bend, for appellants.

William T. Webb, Robert D. Lee, Hardig, Lee and Groves, P.C., South Bend, for appellees.

OPINION

HOFFMAN, Judge.

Appellants-plaintiffs Danny Plummer and Jackie Plummer, as custodial parents of Jamie Plummer, deceased, (collectively "Plummers") appeal from the granting of summary judgment in favor of appellees-defendants St. Joseph County, Indiana and St. Joseph County Parks Department (collectively "St. Joseph") in a wrongful death action. The designated facts are summarized below.

On June 12, 1992, Jamie Plummer was swimming with some friends at Ferrettie/Baugo Creek lake located in St. Joseph County, Indiana. Pam Hardt, Sara Stahl, and Tom Jester were the lifeguards on duty at the lake.

In the early afternoon, while Jamie was swimming with his friend, Chris Templeton, he became imperiled. Hardt heard Templeton yelling, noticed bubbles in the water near where Jamie was, and determined that a drowning was occurring. Hardt immediately blew her whistle and summoned the assistance of the other lifeguards. Hardt was the first to reach the area where Jamie was last seen swimming and to begin surface dives to locate him. After Stahl and Jester cleared the water of other swimmers, they too joined in the rescue attempt, along with Elizabeth Gould who had just arrived for work. The lifeguards formed "life-chains" ¹ to locate Jamie. After several "life-chains" were formed, his body was discovered. Thereafter, although both the lifeguards and the authorities made repeated attempts to revive him, he died.

Based on the above, the Plummers filed a complaint against St. Joseph in the St. Joseph Superior Court on December 21, 1992, alleging inter alia negligence in Jamie's rescue and the County's failure to maintain its facilities in a safe condition. On November 12, 1993, St. Joseph filed a motion for summary judgment, which the trial court granted on July 5, 1994. This appeal ensued.

On appeal, the Plummers raise one consolidated issue: whether the trial court erred in granting summary judgment in favor of St. Joseph.

As of January 1, 1991, amendments to Ind. Trial Rule 56(C), the parties to a summary judgment proceeding must expressly designate to the trial court evidentiary matter which supports their respective positions. T.R. 56(C) provides:

"At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto...."

(Emphasis added.) T.R. 56(C). Summary judgment is appropriate only when the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. T.R. 56(C).

St. Joseph raises various arguments regarding both its own and the Plummers' attempts at designation. Because the purpose of the amendments to T.R. 56 are to decrease the amount of evidentiary material trial courts are required to sift through in ruling on summary judgment motions, Pierce v. Bank One-Franklin, NA (1993), Ind.App., 618 N.E.2d 16, 19, trans. denied, neither the trial court nor this Court on appeal can look beyond the evidence specifically designated to the trial court. Midwest Commerce Banking Co. v. Livings (1993), Ind.App., 608 N.E.2d 1010, 1012. Even though T.R. 56(C) is silent as to the specificity required for designations, this Court in Pierce explained that a proper designation consists of: (1) a list of the factual matters which are or are not in dispute, (2) supported by a specific designation to their location in the record, and (3) a brief synopsis of why those facts are material. Pierce at 19. Moreover, designating pleadings, discovery material, and affidavits in their entirety fail to meet the specificity required under the rule. Intelogic v. Merchants Nat. Bank, (1993), Ind.App., 626 N.E.2d 839, 842 at f.n. 4, trans. denied. Here, although both parties designated entire portions of the record in their respective motion and responses, more detailed references to the record were provided in the accompanying memoranda. It is from this designated evidence that a review will be conducted.

In Indiana, the elements of actionable negligence are: (1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure by the defendant to conform his conduct to that standard and (3) an injury proximately caused by the breach of duty. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995. However, when a duty owed by a governmental entity is a duty owed to the general public at large, it is not liable for negligence. Mullin v. Municipal City of South Bend (1994), Ind., 639 N.E.2d 278, 283. The governmental entity is liable for its negligence only when the duty owed to the plaintiff is one that gives rise to a private duty owed to a particular individual. Id.

In Mullin, a neighbor called 911 when the neighbor discovered plaintiff's house was on fire. When the dispatcher asked if anyone was in the house, the neighbor responded, "I think so." The City of South Bend had a written policy that whenever persons are located in a burning home, an ambulance will be dispatched along with other emergency vehicles. No ambulance was dispatched until one of the fire units called for one at the scene. One of the plaintiff's children died; the other was injured.

In determining whether the trial court's grant of summary judgment in favor of South Bend was appropriate, the Mullin court clarified the above distinction between private and public duties. The court adopted the test established in City of Rome v. Jordan (1993), 263 Ga. 26, 426 S.E.2d 861, 863, requiring that in order to impose a private duty on a governmental defendant, the plaintiff must show:

"(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party;

(2) knowing on the part of the municipality that inaction could lead to harm; and

(3) justifiable and detrimental reliance by the injured party on the municipality's affirmative undertaking."

The Mullin court held the plaintiff failed to show the existence of a private duty, so summary judgment for the city was appropriate. Id. at 285. The court reasoned there was no evidence that South Bend assured plaintiff an ambulance would be dispatched to the fire immediately. Id. Further, the court reasoned that since plaintiff could not show awareness of the city's policy, there could be no detrimental...