Roe v. North Adams Community School Corp.

• Decision Date: 13 March 1995
• Docket Number: No. 90A02-9403-CV-133,90A02-9403-CV-133
• Citation: 647 N.E.2d 655
• Parties: 98 Ed. Law Rep. 967 Mary ROE, Jane Doe, Appellants-Plaintiffs, v. NORTH ADAMS COMMUNITY SCHOOL CORPORATION, American Red Cross, Adams County Chapter, and Thomas W. Sheets, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 655

647 N.E.2d 655

98 Ed. Law Rep. 967

Mary ROE, Jane Doe, Appellants-Plaintiffs, v. NORTH ADAMS COMMUNITY SCHOOL CORPORATION, American Red Cross, Adams County Chapter, and Thomas W. Sheets Appellees-Defendants.

No. 90A02-9403-CV-133.

Court of Appeals of Indiana Second District.

March 13, 1995.

Rehearing Denied May 17, 1995.

Michael T. Yates, Jerrald A. Crowell, John C. Bohdan, Moss, Crowell, Harris, Yates & Long, Fort Wayne, for appellants.

John B. Drummy, Eric D. Johnson, Thomas E. Wheeler, II, Kightlinger & Gray, Indianapolis, for appellee, North Adams Community School Corp.

H. John Okeson, Baker & Daniels, Fort Wayne, James H. Ham, III, Baker & Daniels, Indianapolis, for appellee American Red Cross, Adams County Chapter.

Thomas Wade Sheets, Decatur, for appellee, Thomas Wade Sheets.

OPINION

FRIEDLANDER, Judge.

Mary Roe and Jane Doe (plaintiffs) appeal the trial court's grant of summary judgment entered in favor of The American Red Cross (Red Cross), Thomas W. Sheets, and the North Adams Community School Corporation (the school) [hereinafter collectively referred to as the defendants], which determined that the defendants were not liable for alleged injuries the plaintiffs received when an individual videotaped them as they undressed in a school locker room.

We affirm.

The facts most favorable to the plaintiffs, the nonmoving parties, are that in May, 1989, the Red Cross offered a lifeguarding class designed and taught by Sheets, a Red Cross volunteer. Both plaintiffs enrolled in the program. Doe was a sixteen year-old sophomore student at Bellmont High School (Bellmont), and Roe was a fifteen year-old freshman at South Adams High School.

The class was offered between May 8 and May 20, 1989, at Bellmont between the hours of 6:00 p.m. and 9:00 p.m. on weekdays and 9:00 a.m. to 6:00 p.m. on weekends. The Red Cross made arrangements with the school for the use of the Bellmont pool for this class. The pool was made available to the Red Cross at no charge. The lifeguarding class was organized, operated, and sponsored by the Red Cross, and no school employees were involved in teaching or supervising the class. The students did not earn credit for taking the class.

During the school day and prior to the lifeguarding class, the locker rooms and the pool area were locked, and the only non-school personnel who had a key were the Parks and Recreation Department, who staffed the pool when it was being used for community purposes. The school did not permit Sheets to have a locker room key because it was "trying to be very careful with distribution of keys." Record at 442, 474. The Red Cross made arrangements with the school to have a custodian unlock the pool facilities just before the class began. After the classes, Sheets would inspect the pool and locker rooms and a custodian would lock the pool area.

Twenty-three individuals enrolled in the lifeguard program, and they typically met in a classroom for lecture and instruction at the beginning of class. The students would then proceed to the locker areas and change clothes.

Approximately one month before the classes were to begin, N.T., T.J., and several other Bellmont students concocted the idea to videotape the girls as they undressed in the locker room. During at least three of the lifeguarding classes, N.T. placed his grandparents' camcorder in one of the women's lockers and videotaped them while they changed clothes. T.J. served as a lookout while N.T. adjusted the camera. In order to disguise the camera and prevent its discovery, N.T. wrapped the camcorder in a towel and padlocked the locker shut. While Sheets conducted nightly inspections of the locker rooms, he never saw the camcorder.

In December 1989, several students informed Bellmont's principal that a videotape existed depicting certain female students in various stages of undress. The principal began an investigation and T.J. eventually delivered a copy of the tape to John Smitley, the school custodian. Smitley gave the tape to the principal, and he learned that N.T. was responsible for the filming because N.T.'s face appeared at the beginning of the tape. The tape also depicted N.T. adjusting the camcorder. When the principal confronted N.T., he explained that all copies of the tape had been destroyed. N.T. was eventually expelled from the school and the principal gave the tape to the local police.

On May 2, 1991, both plaintiffs filed four-count complaints against the defendants seeking damages for injuries as a result of the videotaping episodes. Counts I and II related to the school, while counts III and IV related to Sheets and the Red Cross. The defendants filed motions for summary judgment and following a hearing on October 12, 1993, the trial court granted the motions and entered the following order:

"Motion Of The Defendant American Red Cross, Adams County Chapter For Judgment On The Pleadings filed March 8, 1993, Defendant's Motion For Summary Judgment filed July 23, 1993, Defendant's Motion For Summary Judgment filed July 30, 1993, and Motion Of The Defendant, Thomas W. Sheets, For Judgment On The Pleadings filed July 30, 1993, came on for hearing on October 12, 1993 and the Court being duly advised in the premises now converts both Motions For Judgment On The Pleadings into Motions For Summary Judgment because they were supported by matters outside the pleadings.

The Court now finds that there are no genuine issues of material fact and that all three Defendants are entitled to summary judgment as a matter of law.

In support of said finding the Court further finds that none of the Defendants were under a duty to protect the Plaintiff as a participant in the lifesaving course from the act about which she complains. The court further finds that the Plaintiff cannot recover damages for emotional distress because there were no intentional torts committed by any of the Defendants herein and there was no physical impact on the Plaintiff.

Therefore, the court now grants judgment in favor of all three Defendants and against the Plaintiff herein."

Record at 700.

The plaintiffs appeal and present the following issues:

1. Did the trial court err in granting summary judgment in favor of the defendants when it concluded that they did not owe the plaintiffs a duty to protect them from being videotaped?

2. Did the trial court properly conclude that the plaintiffs could not recover damages for emotional distress due to the absence of any physical impact?

1.

Upon appellate review of summary judgment, this court views the same matters and issues that were before the trial court and follows the same process. Burke v. Capello (1988), Ind., 520 N.E.2d 439. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Once the movant establishes that no genuine issue of fact exists, the party opposing summary judgment must set forth specific facts indicating that there is a genuine issue in dispute. If the nonmoving party fails to meet this burden, summary judgment in favor of the moving party is appropriate. Pierce v. Bank One-Franklin, NA (1993), Ind.App., 618 N.E.2d 16, trans. denied. Further, the party moving for summary judgment must designate to the trial court all parts of the matters included in the record that it relies on for the motion. The opposing party likewise must designate to the trial court "each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto." Ind. Rules of Procedure, Trial Rule 56(C). Any doubt as to the existence of a factual issue should be resolved against the moving party, construing all properly asserted facts and reasonable inferences in favor of the nonmovant. Cowe by Cowe v. Forum Group Inc. (1991), Ind., 575 N.E.2d 630; Bridgewater v. Economy Eng'g Co. (1985), Ind., 486 N.E.2d 484.

The plaintiffs argue that the trial court erroneously determined that the defendants owed no duty to protect them from being videotaped in the locker room during the Red Cross classes.

In determining whether a duty exists, three factors must be balanced: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992. Ordinarily, whether a duty exists is a question of law. J.A.W. v. Roberts (1994), Ind.App., 627 N.E.2d 802. The duty to exercise care for the safety of another arises as a matter of law out of some relationship existing between the parties, and it is the province of the court to determine whether such relations give rise to a duty. Greathouse v. Armstrong (1993), Ind., 616 N.E.2d 364; Webb, supra. The plaintiffs assert that the defendants "assumed a duty of security concerning the locker room facilities at the School" and that "the School undertook to maintain control of all aspects of security surrounding the class." Appellant's Brief at 17-19. In support of their argument, they point to the following allegations:

"(1) The Red Cross lifesaving classes were held at the Bellmont High School and arrangements to use the pool were made by contacting an individual at the School. The School knew when Sheets was to be using the pool and it was to have someone there to unlock the doors for Sheets.

(2) The School was aware of the issue of security and counselled with coaches and people, who were in charge of extra-curricular activities, to be cognizant of security.

(3) School custodians were on duty twenty-four hours a day at the School ... and one custodian on each shift would have keys to all areas of the School.

(4) The locker rooms featured the type of locks that required a key to lock the door.

(5) The School's principal testified that students at Bellmont High School were not permitted to have possession of School keys.

(6) The School had policies in place for when the locker room...