Wickey v. Sparks, 52A02-9401-CV-4

Citation642 N.E.2d 262
Decision Date03 November 1994
Docket NumberNo. 52A02-9401-CV-4,52A02-9401-CV-4
Parties95 Ed. Law Rep. 671 Helen J. WICKEY, Appellant-Plaintiff, v. Dawn SPARKS, Peru Community School Corporation, and Heartland Career Center, Appellee-Defendant.
CourtCourt of Appeals of Indiana
OPINION

KIRSCH, Judge.

Appellant-plaintiff Helen J. Wickey appeals the entry of summary judgment in favor of appellee-defendants Peru Community School Corporation (Peru) and Heartland Career Center (Heartland). She contends that the trial court erroneously concluded that neither Peru nor Heartland owed her a duty of care. We affirm.

FACTS

The facts most favorable to the non-movant Wickey establish that she was injured on November 7, 1989 when the car she was driving collided with a car driven by Victoria L. Hudson. Hudson was one of six Peru High School students who also attended cosmetology vocational classes at Heartland. Heartland was established through the cooperative effort of five area school corporations, including Peru, who contracted to provide vocational educational services. Hudson had completed her morning classes at Heartland and was driving to Peru High School to attend her afternoon classes when the accident occurred.

Although Peru provided all other vocational students with bus transportation to Heartland, it did not provide such transportation to the six cosmetology students because their classes began one hour earlier than the other vocational classes. Peru permitted the cosmetology students, subject to parental approval, to provide their own transportation to and from Heartland and issued driving passes to those cosmetology students who obtained parental permission. Heartland periodically checked to confirm whether the students possessed the necessary driving passes. On the date of the accident, Hudson had both her parents' written permission to provide her own transportation and a driving pass. She also had a valid Indiana driver's license.

At the time of the accident, both Peru and Heartland had student handbooks in effect. These handbooks required the students to drive in a safe manner and to comply with all traffic laws. Peru's handbook required the vocational students to return to Peru High School by 12:10 p.m. Peru High School's assistant principal testified by deposition that the school staff "made sure [the students] always drove new [highway] 24 because it was safer." Record at 354. During the 1989 Fall semester and prior to the accident, reports were made to the assistant principal that the cosmetology students were engaging in driving horseplay. Neither Peru nor Heartland staff supervised the students' driving behavior to determine whether they followed the prescribed route or whether they complied with the handbook policies.

Wickey brought this negligence action against Peru and Heartland alleging they owed her a duty under the following theories: 1) they had a common law duty to supervise their students' driving behavior; 2) they gratuitously assumed a duty to supervise their students' driving behavior; and 3) the students were agents of Peru and Heartland, making Peru and Heartland vicariously liable for their students' negligence. The trial court granted summary judgment in favor of both Peru and Heartland, finding that neither defendant owed Wickey a duty of care.

DISCUSSION AND DECISION

When reviewing a decision on a summary judgment motion, this court applies the same standard as the trial court. Selleck v. Westfield Ins. Co. (1993), Ind.App., 617 N.E.2d 968, 970, trans. denied. Summary judgment shall be granted if the designated evidentiary matter demonstrates 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. Ind. Trial Rule 56(C); Indiana Dep't of Pub. Welfare v. Murphy (1993), Ind.App., 608 N.E.2d 1000, 1002. All facts and reasonable inferences must be construed against the moving party. Indiana Bd. of Pub. Welfare v. Tioga Pines Living Center, Inc. (1993), Ind., 622 N.E.2d 935, 940, cert. denied (1994), 510 U.S. 1195, 114 S.Ct. 1302, 127 L.Ed.2d 654. We will affirm a summary judgment ruling on any legal theory which is consistent with the designated evidence in the record. Valley Fed. Sav. Bank v. Anderson (1993), Ind.App., 612 N.E.2d 1099, 1102.

The tort of negligence consists of three elements: 1) a duty owed to the plaintiff by the defendant; 2) a breach of that duty by the defendant; and, 3) injury to the plaintiff proximately caused by that breach. J.A.W. v. Roberts (1994), Ind.App., 627 N.E.2d 802, 808. The first element, the existence of a duty owed to the plaintiff, is usually a question of law for the court's resolution. Klobuchar v. Purdue University (1990), Ind.App., 553 N.E.2d 169, 171; but cf. Brown v. Northern Indiana Pub. Serv. Co. (1986), Ind.App., 496 N.E.2d 794, 797 (factual questions may be interwoven with legal determination of whether relationship exists to give rise to a legal duty), trans. denied. Although summary judgment is rarely appropriate in a negligence action, Osmulski v. Becze (1994), Ind.App., 638 N.E.2d 828, 838, it may be suitable to determine the legal question of whether a duty exists. Brewster v. Rankins (1992), Ind.App., 600 N.E.2d 154, 156. Absent a duty, there can be no breach, and thus, no basis for recovery under a negligence theory. Hawn v. Padgett (1992), Ind.App., 598 N.E.2d 630, 632.

I. Duty to Supervise

Wickey first contends the common law imposes a duty upon both Peru and Heartland to supervise their students' driving behavior. In support of her contention, Wickey relies upon Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701, in which our supreme court stated:

"The specific and initial question of law presented, therefore, is whether the law of this State recognizes a duty for school authorities to exercise reasonable care and supervision for the safety of the children under their control. We believe that schools have such a responsibility and that the relationship of school pupils and school authorities should call into play the well recognized duty in tort law that persons entrusted with children, or others whose characteristics make it likely that they may do somewhat unreasonable things, have a special responsibility recognized by the common law to supervise their charges. Restatement Torts 2d § 320; Prosser, Torts § 33, p. 172 (4th ed. 1971)."

Id., 261 Ind. at 611, 308 N.E.2d at 706.

The duty articulated in Miller arose out of the relationship between a student and school personnel. See Norman v. Turkey Run Community School Corp. (1980), 274 Ind. 310, 314, 411 N.E.2d 614, 616. The duty was found owing by the school to the injured student, not to a third party, and all of the cases which discuss the existence and extent of a school's duty after Miller have involved actions brought by or on behalf of an injured student. See, e.g., Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552; Norman, 274 Ind. 310, 411 N.E.2d 614; Drake v. Mitchell Community Schools (1994), Ind.App., 628 N.E.2d 1231; Klobuchar, 553 N.E.2d 169; Swanson v. Wabash College (1987), Ind.App., 504 N.E.2d 327; Dibortolo v. Metropolitan School Dist. of Washington Township (1982), Ind.App., 440 N.E.2d 506; School City of Gary v. Claudio (1980), Ind.App., 413 N.E.2d 628.

This court was first presented with an appeal involving a non-student third-party's legal action against a school in Brewster v. Rankins (1992), Ind.App., 600 N.E.2d 154. There, a golf instructor allowed a fourth-grade student (Jason) to take a golf club home for the weekend to practice his skills. While practicing, Jason struck a three-year-old boy (Robert) in the head with the golf club. Jason's mother was baby-sitting Robert when the accident occurred. In resolving the duty issue, we held that:

"Teacher and School owed Robert no duty when the accident occurred because the accident occurred off of School property and, although Teacher and School acquiesced in the golf club's use, the activity was not supervised by School or its officials; and, furnishing Jason the golf club would not effect a duty even if control or supervision were established because a golf club is not an inherently dangerous instrumentality."

Id. at 158.

Our holding in Brewster was based upon the factual similarities between that case and Swanson, 504 N.E.2d 327, which focused upon the type and location of the activity which resulted in the accident. Neither case decided the question presented by the facts of this case: whether the duty to supervise, owed by a school to its students, extends to third parties. In determining whether such a duty to third parties exists, we must balance three competing factors: 1) the relationship between the parties; 2) the reasonable foreseeability of harm to the injured party; and, 3) public policy concerns. See Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995; J.A.W., 627 N.E.2d at 809.

A. Relationship Between the Parties

A school's duty to supervise students arises from the legal relationship between school pupils and school authorities. Miller, 261 Ind. at 611, 308 N.E.2d at 706. Here, no such relationship exists between Wickey and either Peru or Heartland. Wickey and the two schools are strangers in that Wickey is merely a member of the general public with no connection to either school. Thus, this factor weighs against imposing a duty on Peru and Heartland.

Wickey argues that the existence of a duty on the part of Peru and Heartland presents a mixed question of law and fact for which summary judgment is inappropriate. She bases her...

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