Rivera ex rel. Rivera v. City of Nappanee

• Decision Date: 29 December 1998
• Docket Number: No. 20A03-9803-CV-139,20A03-9803-CV-139
• Citation: 704 N.E.2d 131
• Parties: Carrie RIVERA, a minor, by next friend, Christopher RIVERA, parent, Carol A. Rivera, and Christopher Rivera, Appellants-Plaintiffs, v. CITY OF NAPPANEE, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 131

704 N.E.2d 131

Carrie RIVERA, a minor, by next friend, Christopher RIVERA, parent, Carol A. Rivera, and Christopher Rivera, Appellants-Plaintiffs, v. CITY OF NAPPANEE, Appellee-Defendant.

No. 20A03-9803-CV-139.

Court of Appeals of Indiana.

Dec. 29, 1998.

Charles E. Talmage, Thomas N. Nuttle, Talmage & Nuttle, Elkhart, for Appellants-Plaintiffs.

Phillip A. Renz, Monica S. Weaver, Miller Carson Boxberger & Murphy LLP, Fort Wayne, for Appellee-Defendant.

OPINION

RUCKER, Judge.

Members of the Rivera family (referred to collectively as "the Riveras") appeal the trial court's grant of a motion for judgment on the pleadings filed by the City of Nappanee ("City"). The Riveras raise a single issue for our review which we rephrase as whether the trial court erred in determining that the Riveras' complaint for emotional distress damages failed to state a claim for relief.

We affirm.

Christopher Rivera is the father of now seven-year-old Christopher Rivera III (sometimes referred to as "minor son"). In February 1996, Christopher took his minor son and young daughter Carrie to a playground that is owned and operated by City. Minor son climbed a fence that separated the playground from a neighboring swimming pool. After reaching the top, the child became entangled in wires positioned on the fence and sustained bodily injury to his arms and hands. Carrie saw her young brother become entangled in the wires and also witnessed his injured body. Christopher carried minor son to their nearby home where his wife Carol administered first aid. Minor son was later transported to a hospital where his wounds were treated. Thereafter the Riveras filed a four count complaint against City alleging various theories of liability. Count four of the complaint sought damages for emotional distress. In response City filed a motion for judgment on the pleadings concerning count four only. After conducting a hearing, the trial court granted the motion. This appeal followed.

A motion for judgment on the pleadings pursuant to Ind. Trial Rule 12(C) attacks the legal sufficiency of the pleadings. Richards-Wilcox, Inc. v. Cummins, 700 N.E.2d 496, 499 (Ind.Ct.App.1998). A trial court should grant a T.R. 12(C) motion only where it is clear from the pleadings that the non-moving party cannot in any way succeed under the operative facts and allegations therein. Noblesville Redevelopment Comm'n v. Noblesville Assocs. Ltd. Partnership, 674 N.E.2d 558, 562 (Ind.1996). Our review of the trial court's ruling is de novo. National R.R. Passenger Corp. v. Everton By Everton, 655 N.E.2d 360, 363 (Ind.Ct.App.1995), trans. denied. We accept as true the well-pleaded material facts alleged in the complaint, and our review is confined to information included in the pleadings. Noblesville Redevelopment Comm'n, supra.

Arguing that an assault can provide the basis for a claim of intentional infliction of emotional distress, the Riveras contend the trial court erred in granting City's motion for judgment on the pleadings. According to the Riveras their complaint supports an assault theory of liability. Conceding that the theory is "not explicit on the face of the complaint" the Riveras argue "[t]he theory of assault as it applies to this case was set out in plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Judgment on the Pleadings ... and at oral argument...." Brief of Appellants at 9. Thus, the argument continues, "the trial court erred in its ruling by not including assault in its analysis of the intentional torts contemplated by the complaint." Id. (emphasis in original).

We first observe that neither a motion nor a party's response to a motion is considered a pleading. State Exchange Bank of Culver v. Teague, 495 N.E.2d 262, 267 (Ind.Ct.App.1986); Smith v. City of South Bend, 399 N.E.2d 846, 850 (Ind.Ct.App.1980). Rather pleadings consist of (1) a complaint and answer, (2) a reply to a denominated counterclaim, (3) an answer to a cross-claim, (4) a third-party complaint, if a person not an original party is summoned under the provisions of Rule 14, and (5) a third-party answer. See Ind. Trial Rule 7(A). Thus, to the extent the trial court discounted the Riveras' responsive motion and oral representations in determining whether City was entitled to relief, the trial court did not err.

The tort of intentional infliction of emotional distress was first recognized by our supreme court in Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.1991). "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." Id. (quoting Restatement (Second) of Torts § 46 (1965)). The court went on to explain "[i]t is the intent to harm one emotionally that constitutes the basis for the tort of an intentional infliction of emotional distress." Id. Based on Cullison it appears that under some certain circumstances an assault may support a claim for emotional distress damages. An assault is effectuated "when one acts intending to cause harmful or offensive contact with the person of the other or an imminent apprehension of such contact." Cullison, 570 N.E.2d at 30. However even assuming the Riveras' complaint alleges facts sufficient to claim an assault, such an assault, if any, was alleged to have been committed against minor son only, and not the remainder of the Rivera family. Nowhere in the Riveras' complaint are there allegations or reasonable inferences arising therefrom that the City intended to cause harm to the Riveras. At most the allegations in the complaint may arguably support a claim for intentional conduct as it relates to minor son. However as the Riveras point out in their brief, Christopher's own claim for emotional distress included in Count IV was not in issue and was not dismissed. Brief of Appellant at 7 n. 4. It is clear from the pleadings that the Riveras cannot in any way succeed on their claim of intentional infliction of emotional distress. Accordingly the trial court did not err in dismissing that portion of the Riveras' complaint alleging such entitlement.

The Riveras also complain the trial court erred in granting City's motion for judgment on the pleadings because their complaint alleges facts sufficient to support a claim for negligent...