Tanasijevich's Estate v. City of Hammond, 3-1077A272

• Decision Date: 28 December 1978
• Docket Number: No. 3-1077A272,3-1077A272
• Parties: ESTATE of George N. TANASIJEVICH, Deceased, by Rudolph Tanasijevich, Administrator, Appellant (Plaintiff Below), v. The CITY OF HAMMOND, Indiana, A Municipal Corporation, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1081

383 N.E.2d 1081

178 Ind.App. 669

ESTATE of George N. TANASIJEVICH, Deceased, by Rudolph

Tanasijevich, Administrator, Appellant (Plaintiff Below), v. The CITY OF HAMMOND, Indiana, A Municipal Corporation,

Appellee (Defendant Below).

No. 3-1077A272.

Court of Appeals of Indiana, Third District.

Dec. 28, 1978.

Rudolph Tanasijevich, Hammond, for appellant.

C. Jerome Smith, Hammond, for appellee.

STATON, Judge.

Administrator Rudolph Tanasijevich filed suit for and in behalf of the estate of George N. Tanasijevich to recover damages which resulted from fire and vandalism to a building owned by the estate. Tanasijevich's complaint alleged that the vandalism and fire which damaged the building was the retaliation of gangs and vandals for his cooperation with the Hammond Police in their investigation of criminal activities, that the police knew or should have known that Tanasijevich's collaboration with them was likely to result in criminal retaliation against him, and that the police breached their consequent duty to protect him by failing to act to prevent this likelihood.

The trial court granted defendant Hammond's motion for summary judgment. Tanasijevich appeals from that decision and raises two contentions of error:

(1) The trial court erred in granting the City of Hammond's motion for summary judgment because the complaint and affidavit in opposition to the motion revealed the City breached a special duty to provide protection to the Tanasijevich property.

(2) If summary judgment was proper, the trial court erred in denying Tanasijevich's subsequent motion to amend his complaint.

We reverse the trial court on the basis that summary judgment was erroneous and remand this cause to the trial court. ¹

I. Summary Judgment

The City of Hammond's summary judgment motion granted by the trial court was originally filed as a motion for judgment on the pleadings. Hammond then moved the court to treat that motion for judgment on the pleadings, apparently predicated on Ind. Rules of Procedure, Trial Rule 12(B)(6), as one for summary judgment under Ind. Rules of Procedure, Trial Rule 56. Both TR. 12(B)(8) and TR. 12(C) provide that when matters outside the pleadings are submitted in support of a TR. 12 motion for judgment on the pleadings, the motion "shall be treated" as a TR. 56 motion for summary judgment, with or without a motion by a party to that effect. In other words, the TR. 12 motion which is supported by matters outside the pleadings is automatically converted into a motion for summary judgment. See, e. g., Salem Bank and Trust Company v. Whitcomb (1974), 261 Ind. 614, 308 N.E.2d 707.

Here, despite the City of Hammond's unnecessary motion to treat its TR. 12 motion for judgment on the pleadings as one for summary judgment, the City then ironically failed to present any matters from outside the pleadings in support of its motion. Hammond instead rested solely on its answer to support its claim to summary judgment. Tanasijevich, however, did file an affidavit in opposition to the motion for summary judgment. The affidavit of Tanasijevich, together with the complaint and answer, constitute the record from which the trial court determined that the City of Hammond was entitled to summary judgment.

This determination of the trial court was correct only if the pleadings and affidavit which were before it revealed that there was no genuine issue as to any material fact and that the moving party, the City of Hammond, was entitled to judgment as a matter of law. TR. 56(C). Facts alleged in the complaint must be taken as true except to the extent they are negated by depositions, answers to interrogatories, affidavits, and admissions on file, or by testimony presented at a hearing on a motion for summary judgment. Papp v. City of Hammond (1967), 248 Ind. 637, 644, 230 N.E.2d 326, 331. In this respect, the City of Hammond's failure to support its motion for summary judgment with matters outside the pleadings renders its motion functionally equivalent to a motion for judgment on the pleadings. Jenkins v. Hatcher (1975), Ind.App., 322 N.E.2d 117, 119.

For purposes of examining the propriety of the trial court's entry of summary judgment in favor of the City of Hammond, Tanasijevich's complaint and affidavit establish the following uncontroverted facts. Prior to October 12, 1970, the Hammond Police requested Tanasijevich to cooperate with them in a police investigation by permitting them to enter a building owned by the estate of George N. Tanasijevich and search for evidence of criminal activity. Tanasijevich's cooperation with the Hammond Police resulted in criminal retaliation against him manifested by the vandalism and fire of October 12, 1970, which damaged the estate-owned building. According to Tanasijevich, the police knew or should have known of the likelihood of criminal retaliation against him by gangs and vandals residing in the vicinity of the building and failed to act to prevent the subsequent damage which occurred.

For our purposes here, these facts must be taken as true by virtue of the failure of the City of Hammond to support its motion for summary judgment. We now examine whether these undisputed facts entitle the City of Hammond to judgment as a matter of law.

II. Special Duty

It is Tanasijevich's contention that because the police knew or should have known that criminal retaliation against him was likely to result from his cooperation with the police, the Hammond police had a special duty to protect him from this likelihood. Without question the police owed Tanasijevich a duty to prevent the criminal acts which he alleges damaged the estate-owned building. However, this duty is a General duty which the police owe to all members of the public under the statutory definition of police duties. IC 1971, 18-1-11-7, Ind.Ann.Stat. § 48-6110 (Burns Code Ed.). A breach of this general duty by the police does not impose liability upon the employing governmental unit for damages which particular individuals suffer as a result of the breach. Campbell v. State (1972), 259 Ind. 55, 63, 284 N.E.2d 733, 737; Simpson's Food Fair, Inc. v. City of Evansville (1971), 149 Ind.App. 387, 391, 272 N.E.2d 871, 874.

The precise question before us is whether a Special duty was owed to Tanasijevich by the Hammond Police. Only when a Special duty is owed to an individual by the police will the employing governmental unit be held liable for damages to that individual which flow from the breach of duty. Id. To be a Special duty, a duty must be particularized as to an individual. Id. In particular circumstances a governmental unit or its subservient police force can, by its conduct, narrow an obligation which it owes to the general public into a Special duty to an individual. Massengill v. Yuma County (1969), 104 Ariz. 518, 456 P.2d 376, 381. ²

In Simpson's Food Fair, Inc., v. City of Evansville, supra, Judge Sullivan acknowledged one example in the case law wherein a special duty arose to an individual based on the nature of the relationship between the police and the citizen. Schuster v. City of New York (1958), 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534. That case involved factual circumstances similar to the case-at-bar. The decedent Schuster, a young man who had studied the infamous Willie Sutton's picture on an F.B.I. flyer posted in his father's drugstore which requested information regarding Sutton's whereabouts, supplied New York City police with information which led to Sutton's capture. Schuster's role in Sutton's apprehension was widely publicized; three weeks later young Schuster was shot and killed near his home. Suit was filed in behalf of Schuster's estate based on the allegation that the City of New York had breached its duty to guard Schuster against such consequences. The New York Court of Appeals upheld the Schuster estate's right to sue, stating:

"In our view the public (acting in this instance through the City of New York) owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals, once it reasonably appears that they are in danger due to their collaboration. If it were otherwise, it might well become difficult to convince the citizen to aid and co-operate (Sic ) with the law enforcement officers . . . ."

Id., 180 N.Y.S.2d at 269, 154 N.E.2d at 537. In similar factual circumstances, our sister state of Illinois has also recognized that a special duty to protect...