Willis v. Warren Tp. Fire Dept.

• Decision Date: 12 May 1995
• Docket Number: No. 49A02-9408-CV-514,49A02-9408-CV-514
• Citation: 650 N.E.2d 321
• Parties: Katherine J. WILLIS and Harold Willis, Appellants-Plaintiffs, v. WARREN TOWNSHIP FIRE DEPARTMENT, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 321

650 N.E.2d 321

Katherine J. WILLIS and Harold Willis, Appellants-Plaintiffs, v. WARREN TOWNSHIP FIRE DEPARTMENT, Appellee-Defendant.

No. 49A02-9408-CV-514.

Court of Appeals of Indiana,

Second District.

May 12, 1995.

John P. Young, Young & Young, Indianapolis, for appellants.

Michael K. Lulich, Lulich, Murphy & Dowling, Indianapolis, for appellee.

OPINION

FRIEDLANDER, Judge.

Katherine J. Willis and Harold Willis appeal the denial of their motion for partial summary judgment, whereby the court ruled that the Warren Township Fire Department is immune from liability for actions undertaken in fighting a fire at the Willises' home. We address the following issue: ¹

Did the court err in concluding that the Fire Department is immune from liability, pursuant to Ind.Code 34-4-16.5-3(6) and (11), for negligence in fighting a fire?

We reverse.

The relevant facts are not in dispute. On May 22, 1992 at approximately 4:00 p.m., the Willises' home caught fire. The Fire Department arrived approximately three minutes later and attempted to extinguish the fire. Believing it had succeeded, the Fire Department left the house approximately one hour later. Some embers apparently were still smoldering and these embers later erupted into flames. The Fire Department arrived at the Willises' house a second time at approximately 8:18 p.m. and successfully extinguished the fire.

On April 5, 1993, the Willises filed a complaint for damages, alleging that the Fire Department had been negligent in fighting the fire, resulting in loss of property to the Willises. The Fire Department answered, raising as an affirmative defense that the Fire Department was immune from liability pursuant to IC 34-4-16.5-3 of the Indiana Tort Claims Act. On March 15, 1994, the Willises filed a motion for summary judgment on the issue of the Fire Department's immunity. The court ruled against the Willises, concluding that the Fire Department was immune from liability pursuant to IC 34-4-16.5-3(6) and (11).

Our standard of reviewing summary judgment determinations is well established. We stand in the same position as did the trial court in considering the summary judgment motion. Greathouse v. Armstrong (1993), Ind., 616 N.E.2d 364. We consider in a light most favorable to the nonmovant those designated portions of the pleadings, affidavits, answers to interrogatories, responses to requests for admissions, and depositions, to determine whether there exist issues of material fact designated to the trial court, and whether the movant is entitled to judgment as a matter of law. Keating v. Burton (1993), Ind.App., 617 N.E.2d 588, trans. denied.

The Willises contend that the trial court erred in concluding that the Fire Department was immune from liability for "the performance of a discretionary function", IC 34-4-16.5-3(6), and "failure to make an inspection, or making an inadequate or negligent inspection, of any property, other than the property of a governmental entity, to determine whether the property complied with or violates any law or contains a hazard to health or safety", IC 34-4-16.5-3(11).

The Fire Department's claim of immunity was based upon Indiana's Tort Claims Act (the Act), codified at Ind.Code 34-4-16.5-1 through -22. Pursuant to the Act, governmental entities are liable for torts committed by their employees unless one of the exceptions of the Act applies. The party seeking immunity bears the burden of proving that its conduct falls within one of the exceptions set out in the Act. Mullin v. Municipal City of South Bend (1994), Ind. 639 N.E.2d 278. The question of whether a particular government activity is a discretionary function is a question of law for the court to decide. Mullin, supra.

Prior to 1988, the issue of whether a governmental entity was immune from liability under the discretionary function exception for claims of negligence in fighting a fire was a settled question. Our courts repeatedly held that actions undertaken in the course of fighting a fire were "discretionary functions" within the meaning of the Act and that governmental entities were immune from liability for such acts. See, e.g., Ayres v. Indian Heights Volunteer Fire Dept. (1986), Ind., 493 N.E.2d 1229; City of Hammond v. Cataldi (1983), Ind.App., 449 N.E.2d 1184. In arriving at this conclusion, courts applied the "discretionary/ministerial" test. According to this test,

"A duty is discretionary when it involves on the part of the officer to determine whether or not he should perform a certain act, and, if so, in what particular way, and in the absence of corrupt motives in the exercise of such discretion he is not liable. His duties, however, in the performance of the act, after he has once determined that it shall be done, are ministerial...." Cataldi, supra, 449 N.E.2d at 1186-87 (quoting Adams v. Schneider (1919), 71 Ind.App. 249, 124 N.E. 718, 720).

Governmental entities were immune from liability for acts deemed to be "discretionary", but were not immune from acts deemed to be "ministerial" in nature.

In 1988, however, our supreme court decided Peavler v. Monroe County Bd. of Comm'rs (1988), Ind., 528 N.E.2d 40, in which the discretionary/ministerial test was discarded in favor of the planning/operational test in determining the applicability of the discretionary function exception. Under the new test, the court's task is to "distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitled to immunity." Greathouse, supra, 616 N.E.2d at 366-67. The critical inquiry in evaluating claims of immunity under the new test is "not merely whether judgment was exercised but whether the nature of the judgment called for policy considerations." Id. (quoting Peavler, supra, 528 N.E.2d at 45).

The Fire Department argues that the acts which form the basis of the Willises' complaint for damages were "of the type contemplated to be shielded with immunity, and they were a result of a conscious policy-oriented analysis." Appellee's Brief at 9. The Fire Department, which bore the burden of proving that its actions fell within the Act, explained that its actions constituted "planning", within the meaning of Peavler, for the following reasons:

"The Chief at the scene of the fire and the key decision-makers establishing overall fire fighting [sic] rules, by necessity assessed the needs for this particular fire, and for the department and citizens as a whole. Certainly, an assessment of needs for personnel and equipment were made in fighting this fire by the Chief at the scene. This is exemplified by the need to release a unit to handle another call, causing the Chief to weigh the needs for this fire against the needs for another call. It included the allocation of units and the appropriate reallocation of those units and manpower from the scene at various times. It, further, included assessment of the necessity or lack thereof in tearing down walls or ceilings inside the garage. These were just some of the decisions made at the scene by the Chief, the highest executive officer of the department, causing him to weigh the alternative choices and balance the policy factors to arrive at a course of conduct." Appellee's Brief at 9.

We do not doubt that under the discretionary/ministerial analysis, the Fire Department's arguments in this regard would have prevailed. See Ayres, supra; Cataldi, supra. However, application of the planning/operational test achieves a different result.

In Greathouse, supra, the appellant's decedent was killed when his motorcycle struck a bull that had wandered onto the road. The decedent's estate filed a tort action against the local sheriff's office because the sheriff's office had been notified that there were cattle in the roadway approximately two hours before the fatal accident occurred. The sheriff's dispatcher spent the two hours attempting to locate the owner of the cattle, but did not succeed until after the accident. In the interim, the dispatcher did not send a deputy to the scene to remove the cattle or warn motorists.

The court rejected the sheriff's department argument that the dispatcher had exercised the sort of discretion which would shield the...