OPINION
Aftеr Martinsville West Middle School students C.J. and B.K. were injured during a school shooting by former student Michael Phelps (“Phelps”), C.J. and B.K. each filed lawsuits against the Metropolitan School District of Martinsville (“the School District”) alleging that the School District breached its duty to keep C.J. and B.K. safe. The School District filed a motion for summary judgment, which the trial court denied.
The School District now appeals the denial of its motion for summary judgment and argues (1) that it is immune from liability pursuant to the Indiana Tort Claims Act, (2) that the School District did not breach its duty to C.J. and B.K., and (3) that C.J. was contributorily negligent.
We affirm.
Facts and Procedural History
On March 25, 2011, C.J. was an eighth-grader at Martinsville West Middle School (“MWMS”). C.J. and Phelps, who had also been an eighth-grader at MWMS, were once friends, but their relationship had deteriorated during the preceding few years and had grown particularly antagonistic in 2011 after they both began sporadically dating the same girl, N.A. Phelps remained close with N.A. In the spring of 2011, C.J. allegedly began to spread offensive rumors about N.A., which caused further hostility between C.J. and Phelps. Although the boys had never had a physical altercation at school, Phelps once tried to start a fight with C.J. on a local street after a school basketball game.
During the four years Phelps was enrolled at MWMS,
Two days after Phelps made his comment about blowing up the school, on March 4, 2011, while Phelps was on school property to take the ISTEP test, he had an argument with C.J. about N.A. A MWMS teacher overheard the argument and told C.J. “not to feed into it and to walk away.” Appellant’s App. p. 137. According to C.J., this is the only conversation he had with any school personnel regarding his ongoing problems with Phelps. Around the same time, about two weeks before the shooting, Phelps again threatened C.J. after a school basketball game. C.J.’s girlfriend, A.M., testified that she told two MWMS teachers that Phelps had threatened C.J. According to A.M., those teachers did not report Phelps’s threats to the school administration.
A.M. also testified that seven days before the shooting, on the afternoon of March 18, 2011, N.A. and A.M. were riding the school bus together when A.M. heard N.A. tell Phelps over the phone that C.J. had made fun of her again. Phelps apparently made yet another threat against C.J. during this conversation. After ending the phone call with Phelps, N.A. told A.M. that “[C.J.] is doomed.” Appellant’s App. p. 158. A.M. testified that she later warned C.J. of Phelps’s threat and C.J. responded, “I’m a big boy.” Id. Neither A.M. nor C.J. reported this threat to sсhool personnel.
On the morning of the shooting, March 25, 2011, Phelps’s Facebook status read “[tjoday is the day” and “[djon’t use your mind, use your nine.” Appellant’s App. pp. 562, 751. Phelps arrived at the school around 7:00 a.m. He was wearing a dark-colored hooded sweatshirt with the hood pulled over his head and moved toward the building so as to avoid detection.
Principal Lipps had developed a safety plan for the school
Immediately before Phelps approached C.J. that morning, N.A. sought out C.J. in the school’s vestibule and told him that Phelps had arrived at the school and planned to “kick [C.J.’s] ass.”
Phelps entered the school’s vestibule and confronted C.J. around 7:15 a.m. He threatened that C.J. “was about to get [expletive] up.” Appellant’s App. pp. 138-39, 497. Phelps then left the vestibule, only to return a few minutes later. C.J. and B.K. were both still in the vestibule when Phelps arrived. C.J. told Phelps that he did not wish to fight and Phelps responded, “too bad,” pulled a stolen handgun
The State subsequently charged Phelps with attempted murder, aggravated battery, carrying a handgun without a license on school property, trespassing on school property, possession of a firearm on school property, and theft. The State later dismissed all counts except for the attempted murder count. The juvenile court waived jurisdiction and, following a bench trial on July 11, 2011, Phelps was found guilty of attempted murder. He was sentenced to thirty-five years executed in the Department of Correction, with five years suspended and five years of probation.
On September 20, 2011, approximately six months after the shooting, C.J. and his mother, Rebecca Jackson sued the Mar-tinsville Metropolitan School District, claiming that the School District failed to protect C.J. from Phelps. Specifically, C.J. argued that the School District was negligent when it left Door 2 unlocked, allowing Phelps to enter the school; when it failed to warn personnel monitors that Phelps posed a threat and to instruct them to specifically look for Phelps on school grounds after he was suspended; and when it failed to instruct personnel monitors to call 911 if Phelps was spotted on school property.
Seven months later, on March 22, 2012, B.K.’s mother, Kelli Dearth (“Dearth”) filed a similar lawsuit. The trial court consolidated C.J. and B.K’s complaints. On January 25, 2013, the School District filed its motion for summary judgment, arguing that it was immune from liability pursuant to the Indiana Tort Claims Act,
The School District now appeals.
Standard of Review
This case comes to us prior to trial, as a result of the trial court’s denial of the School District’s motion for summary judgment. Our standard of review of summary judgment appeals is well established:
Dreaded, Inc. v. St. Paul Guardian Ins. Co.,
When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.
The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1,
Imрortantly for this case, summary judgment is rarely appropriate in negligence actions, since negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person. This standard is best applied by a jury after hearing all of the evidence. See Kroger Co. v. Plonski,
I. Indiana Tort Claims Act Discretionary Function Immunity
The School District argues that, because “the challenged actions involve the performance of a discretionary function,” it is entitled to immunity under the Indiana Tort Claims Act. Appellant’s Br. at 15. The Indiana Tort Claims Act (“ITCA”), Indiana Code section 34-13-2-1 et seq., was enacted after our supreme court abrogated the common law sovereign immunity of governmental units from tort liability. The ITCA governs tort claims against governmental entities and public employees. Harrison v. Veolia Water Indianapolis, LLC,
The ITCA provides that a governmental entity or governmental employee who acts within the sсope of that employee’s duty will not be liable if a loss results from “[t]he performance of a discretionary function[J” Ind.Code § 34-13-3-3(7). The party who seeks immunity bears the burden of establishing that its conduct falls within the discretionary function exception.
Prior to our supreme court’s decision in Peavler v. Bd. of Comm’rs of Monroe Cnty., we distinguished between ministerial and discretionary acts in order to determine if certain conduct is included within the immunity exception. Discretionary acts were immune and ministerial acts were not. Harvey v. Bd. of Comm’rs of Wabash County,
Historically, Indiana courts defined a ministerial act as “one which a person performs in a given state of facts in a prescribed manner, in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” Dep’t of Mental Health v. Allen,
However, in its 1988 decision, Peavler v. Bd. of Comm’rs of Monroe Cnty, our supreme court expressly rejected the ministerial/discretionary distinction analysis, concluding that, unless they can be properly сharacterized as policy decisions that have resulted from a conscious balancing of risks and benefits and/or weighing of priorities, discretionary judgments are not immune from legal challenge under the ITCA. In rejecting the ministerial/discretionary distinction analysis, the supreme court observed that:
The ministerial/discretionary test does not advance the public policy of government immunity because it does not consider the type of decision protected by immunity. Rather, it considers only the resulting conduct and attempts to label that conduct. The ministerial/discretionary test defines “discretionary” in the negative: anything which is non-ministerial is discretionary. The test does not require an affirmative finding that the governmental action arose from the type of policy-making decision protected by governmental immunity.
Peavler,
The supreme court chose instead to adopt the planning/operational test, defining planning activities as those that “include acts or omissions in the exercise of a legislative, judicial, executive or planning function which involves formulation of basic poliсy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy” as well as “[government decisions about policy formation which involve assessment of competing priorities and a weighing of budgetary considerations or the allocation of scarce resources are also planning activities.” Id. at 45.
Under Peavler, then, the discretionary function exception of the ITCA insulates from liability only planning activity, char
The School District contends that the safety plan implemented by Principal Lipps and in place the morning of the shooting “resulted from a conscious balancing of risk and benefits” and thus was entitled to immunity. Id. at 19. An affidavit by Principal Lipps states, in relevant part:
6.As the West Principal, I am responsible for all facets of West’s operation. I supervise staff, perform staff evaluations, oversee curriculum development and implementation and am responsible for overall student performance and achievement. In many respects, I am the Chief Executive Officer of West.
7. Overseeing school operations so that students and staff have safe learning and working environments is also part of my responsibilities as Principal. Thus, I am responsible for the development of a plan for student and staff safety at West.
8. West’s Code of Conduct for Students and Discipline Policy is an important part of the safety environment at West. An excerpt from the Student Planner setting forth these provisions is attached. The Anti-Bulling [sic] Policy provides that that [sic] “anyone who is a victim of or a witness to any type of hurtful or aggressive act to an individual student or group of students should immediately report the incident to the office.”
9. A school safety plan must balance competing factors and resource limitations that must be considered in providing a learning environment for an educationally diverse student population. A school safety plan must weigh the competing needs of providing a safe environment against the obligation to creating [a] stimulating and open learning environment where students have a reasonable degree of freedom and choices. Because of financial limitations, which have become even more restrictive over the last several years, school administrators throughout the State of Indiana and the M.S.D. Martinsville must constantly prioritize all projects and programs requiring funding to assure that a reasonable balance is struck between educational programming and building security needs.
10. Providing a safe environment for staff and students requires a multi-facet-ed approach. Prevention of acts of violence, while very important, is not the only concern of a school safety plan. West is a public school and, as such, it must accommodate the needs of students and visitors who, as a practical matter, must have reasonable access [to] the building at various times throughout the school day and at other times for after school activities or other events.
11. With regard to building access, I, as principal, developed a plan that was in place at the time of the shooting in this case and that considered these factors. For example, the M.S.D. Martins-ville has a system for numbering the exterior doors of each school to guide emergency personnel to the appropriate part of the school in the event of a fire or medical emergency. As Principal, I made certain that each entrance to West has a unique number which is placed above the entrance consistent with the district’s numbering system....
12. Second, I developed a plan with the assistance of other staff that limited access to the school. All exterior doors ... were generally locked during the day to prevent access to the building.
13. Staff and students must have reasonable access to the building. Therefore, as part of the school safety plan, I determined that Doors 1, 2, and 3 needed to remain unlocked from 6:30 to 7:30 a.m. when students and staff generally arrived for the school day.
14. To increase student and staff safety, especially during school arrival times when three of the doors are unlocked, I took other steps to reduce the chances of violent incidents. I had cameras installed at all exterior doors that were used by students to enter the building so as to record activity at those doors and to act as a deterrent to misconduct. By recording all activity at these entrances, I believed, based on my experience and training, that the likelihood of violence would be reduced because students and staff would know that their actions by these doors would be preserved for future disciplinary or criminal proceedings. I also determined that based upon the layout of the school building, financial resources, competing building needs, and the utility of additional cameras that the placement and number of cameras was sufficient to provide a safe school environment.
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17. I specifically considered how to place personnel during the mornings to monitor arrivals. One staff member was placed at a location where he or she could observe Door 2 as well as the front of the School....
18. Before the shooting, I participated in regular meetings with the M.S.D. Martinsville’s leadership team and the district safety committee. A variety of school safety issues were discussed at these meetings. I, and the assistant principal, frequently re-evaluated West’s school safety plan in light of these meetings to determine what improvements or changes should be made to the security at West.
Appellant’s App. pp. 94-98 (internal citations omitted).
The School District declares that the decisions made by Principal Lipps with respect to MWMS’s safety plan are “quintessential discretionary functions” and argues, “[t]he fact that Plaintiffs may disagree with the ultimate decisions the School made regarding its safety policy does not alter the underlying nature of the
To support its argument, the School District cites several cases from other jurisdictions concluding that a school’s safety and security decisions are discretionary functions which are immune from liability. In Mosley v. Portland School Dist.,
The School District also cites Randell v. Tulsa Independent School Dist.,
Next, the School District cites Kelly v. Lewis,
Finally, the School District cites Pletan v. Gaines,
We first note that C.J.’s complaint does not allege that the MWMS safety plan was negligently formulated. Rather, it claims that C.J.’s injury resulted from negligent implementation of the plan. See Great-house v. Armstrong,
In its, reply brief, the School District cites two repealed sections of the Indiana Code which provided that “[principals have the authority to hire, transfer, suspend, lay off, promote, discharge, and discipline school employees,” Ind.Code § 20-7.5-l-2(h) (repealed in 2005), and that “[a] principal may take any action concerning the principal’s school or a school activity within the principal’s jurisdiction that is reasonably necessary to carry out or prevent interference with an educational function or school purposes.” Ind.Code § 20-8.1-5.1-5 (repealed in 2005). The School District also quotes Beeching v. Levee,
Importantly for our case, however, the court in Beeching went on to note that
under Indiana law the only publicly elected, local school officials are school board members. While these elected school board members could easily be determined to be “public officials” because of their elective office, building principals are at least two employment lеvels removed from school board members. In most, if not all Indiana public school systems, building principals are appointed by system superintendents and ratified by vote of the system’s school board.
Beeching,
Indeed, language found in Indiana Code Article 20 indicates that a school principal’s role is mostly administrative, while the responsibility for creating policy lies with the school board. Indiana Code section 20-18-2-14 provides that “ ‘Principal’ refers to the chief administrative officer of a school” (emphasis added). And while Indiana Code section 20-33-8-10 states that “[a] principal may take action con
The government of the common schools of a district is vested in the board. The board shall function with the authority, powers, privileges, duties, and obligations previously granted to or requirеd of school cities and their governing boards regarding the:
(1) purchase of supplies;
(2) purchase and sale of:
(A) buildings;
(B) grounds; and
(C) equipment;
(3) erection of buildings;
(4) employment and dismissal of
school personnel;
(5) insuring property and employees;
(6) making and executing of a budget;
(7) borrowing money; and
(8) paying the salaries and expenses of the:
(A) county superintendent; and
(B) employees;
as approved by the board.
Ind.Code § 20-23-16-26.
The federal District Court for the Southern District of Indiana has held that, in the context of a 42 U.S.C. § 1983 claim brought against a school principal, “the school board and not the Principal ... has final policy making authority under Indiana law.” Harless by Harless v. Darr,
And in Oliver by Hines v. McClung,
Under our reading of Indiana case law, Indiana statutes, and the evidence before us, Principal Lipps’s safety plan does not entitle the School District to discretionary function immunity under the Indiana Tort Claims Act and the Pearler planning/oper
While it may be the case that, in developing the MWMS safety plan, Principal Lipps was required to “balance competing factors and resource limitations that must be considered in providing a learning environment for an educationally diverse student population,” Id. at 94, it is important to note that Principal Lipps’s development of the plan was not an action mandated by statute under the General Assembly’s policy-making authority. Furthermore, unlike the Oregon, Oklahoma, and Minnesota cases cited by the School District, Mosley, Randell, and Pletan, there is no evidence in the record that the elected officials on the school board, the School District’s policy-making body, played any role in developing or approving the safety plan. And the Georgia appellate court case, Kelly v. Lewis, has marginal, if any, relevance to our inquiry since it reaches its conclusion using a ministerial/discretionary function analysis that has been considered and rejected by our supreme court.
Peavler dictates that the discretionary function exception under the ITCA grant immunity only to those decisions and actions which constitute “the exercise of political power ... held accountable only to the Constitution or the political process.” Peavler,
II. Breach of Duty
The School District next argues that “the School exercised reasonable care for the protection of its students and that it was not foreseeable to the School that [Phelps] would trespass onto school prop
Negligence consists of: (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. Foddrill v. Crane,
In cases involving an alleged breach of a school’s duty owed to its students, Indiana courts have held that schools have a “special duty,” beyond regular premises liability, to exercise the level of care an ordinary, prudent person would exercise under the same or similar circumstances. Swanson v. Wabash College,
Because there is “some remote risk of injury in all human existence,” Norman v. Turkey Run Cmty. School Corp.,
A. Foreseeability of the Shooting
The School District argues that summary judgment in its favor is appropriate in this case because the School District could not have foreseen that Phelps would come to the school on March 25, 2011 to shoot C.J. The School District declares that public schools “do not have the luxury of picking and choosing who they can educate” and that, therefore, “school corporations are not and cannot be considered insurers against all risks posed by a student towards others.” Appellant’s Br. at 32. The School District quotes Roe v. North Adams Community School Corp.,
In analyzing the foreseeability factor of duty, we focus on whether the injured person actually hаrmed was a foreseeable victim and whether the type of harm actually inflicted was reasonably foreseeable. Webb v. Jarvis,
In this regard, the School District first argues that the affidavit of Phelps’s and CJ.’s classmate, C.H., is “insufficient to create a genuine issue of fact” and must be stricken from the record. Appellant’s Br. at 25. During a June 28, 2011 deposition taken in criminal proceedings against Phelps, C.H. testified that she did not learn of Phelps’s plan to shoot C.J. until she saw Phelps’s Facebook status
The School District requested that the trial court strike the affidavit because “a nonmovant may not create issues of fact by pointing to affidavit testimony which contradicts the witnesses [sic] sworn testimony in a prior deposition.” Appellant’s Br. at 27 (quoting Miller v. Monsanto Co.,
The School District acknowledges that MWMS teacher Mrs. Kempe overheard an argument between Phelps and C.J. when Phelps was on school grounds to take the ISTEP test and that C.J. subsequently told Mrs. Kempe that Phelps wanted to fight with him. The School District argues, however, that this is “insufficient to establish that the School should have known that [Phelps] intended to harm [C.J.] the morning of March 25,” emphasizing that the conversation between C.J. and Kempe occurred three weeks prior to the shooting. Appellant’s Br. at 24. The School District also underscores that, prior to the shooting, Phelps had been withdrawn from school by his mother; that Phelps and C.J. had never been involved in a physical altercation with each other at school; that Phelps had never been involved in physical violence at school beyond fist fights; and that even the juvenile court did not consider Phelps to be enough of a danger to others to revoke his probation after he commented that he wanted to blow up the school. Appellant’s Br. at 29.
It is well settled that summary judgment is especially inappropriate where the critical question for resolution is whether a defendant exercised the requisite degree of care under the factual circumstances. Randolph Co. Hospital v. Livingston,
We further note that the School District’s argument regarding the affidavit containing C.H.’s recorded statement is misguided. The principles the School District cites do not apply to the use of C.H.’s affidavit. While it is true that our courts have held that “contradictory testimony contained in an affidavit of the nonmovant may not be used by him to defeat a summary judgment motion where the only issue of fact raised by the affidavit is the credibility of the affiant,” Gaboury v. Ireland Rd. Grace Brethren, Inc.,
Under these facts and circumstances, we conclude that the question of whether the shooting was foreseeable to the School District is one that is best resolved by the trier of fact rather than through summary judgment.
B. Implementation of Safety Plan
The School District next contends that it exercised reasonable care in providing for the safety of its students, noting that Principal Lipps had implemented (1) a school-wide policy prohibiting threats, bullying, and fighting; (2) a door numbering system; (3) an electronic door locking system; (4) a video surveillance system; and (5) the placement of personnel monitors around school grounds during the time in which students arrived in the morning. The School District further emphasizes that when Phelps threatened to “blow up the school,” he was suspended immediately and expulsion proceedings were initiated. The School District declares, “there is no scenario whereby a schoоl can go into the type of extended lockdown requested by Plaintiffs every time two students are threatening to fight each other — occurrences that law enforcement in this case described as ‘typical’ among adolescent boys.” Appellant’s Br. at 33.
Given the unresolved question of whether the shooting was foreseeable, it follows that there remains this question: if the School District knew or should have known that Phelps posed a threat to C.J.’s safety, should it have taken more steps to protect C.J. from Phelps? A recent opinion by another panel of this court, Prancik v. Oak Hill United Sch. Corp.,
Viewing the facts liberally in a light most favorable to C.J., as our standard of review requires, it seems to us that reasonable persons could differ as to whether there is a sufficient relationship between the School District’s general duty to supervise and protect its students and its alleged failure to take adequate measures to protect C.J. from Phelps. There exist genuine issues of material fact here, in light of the continued conflict between the two boys, Phelps’s extensive disciplinary history, including discipline referrals for harassing, threatening, and assaulting other students, and Phelps’s threat to blow up the school. Therefore, this issue is more appropriately a question for the trier of fact. See Drake by Drake v. Mitchell Cmty. Sch.,
III. CJ.’s Contributory Negligence
The School District next argues that summary judgment in its favor is required because C.J. was contributorily negligent “in failing to follow his mother’s directions to leave the vestibule and go to the office and report the threats.” Appellant’s Br. at 36.
“Contributory negligence” is the failure of a plaintiff to exercise the reasonable care an ordinary person would use for his own protection and safety. Funston v. Sch. Town of Munster,
However, the legislature specifically provided that the new comparative fault scheme would not apply to governmental entities. See Ind.Code § 34-51-2-2. “This exemption for governmental entities from comparative fault means that the common law contributory negligence principles apply when a governmental entity is the defendant in negligence litigation.” Penn Harris Madison Sch. Corp. v. Howard,
Since the School District is a governmental entity, if C.J. were found to be contributorily negligent, he would be barred from recovery. Roddel v. Town, of Flora,
Contributory negligence is generally a question of fact for the jury where the facts are subject to more than one reasonable inference. Jones v. Gleim,
The School District claims that C. J. “had actual knowledge of the specific risk of an imminent attack from [Phelps] that could result in serious injury or even death.” Appellant’s Br. at 41. The School District emphasizes that:
[Phelps] had previously threatened [C.J.] with a chain outside school grounds. A student of [C.J.’s] age could apрreciate the risk of serious injury that could result from [Phelps’s] use of such a weapon. Further, as discussed in the preceding subsection, [C.J.] himself has admitted that he had actual knowledge and appreciation of the specific risk that [Phelps] presented with the threats to “kick his ass” and that he “was about to get [expletive] up.”
Nevertheless [C.J.] chose to stay in the vestibule and wait for [Phelps] to come back, despite being told by his mother to leave and go to the office.
Id.
For the trial court to have ruled that contributory negligence was present as a matter of law, “the evidence would have had to overwhelmingly establish, and without grounds upon which reasonable men may disagree,” that C.J. was able to realize and appreciate the danger with which he was confronted. Dibortolo v. Metro. Sch. Dist. of Washington Twp.,
Moreover, in a society where bullying is a pervasive and confusing problem, especially among young, school-aged children, we question whether the issue of contributory negligence can be properly resolved as a matter of law, especially when, as here, a victim is not the initial aggressor in an altercation, but merely fails to meekly walk away from an attacker who is violently disposed, and especially where the victim appears to have been unaware that the attacker was armed. Because the issue of contributory negligence is generally not appropriate for summary judgment and because, in the present case, the facts are subject to more than one reasonable inference, we conclude that the trial court did not err in finding that the issue of C.J.’s contributory negligence is most appropriately a matter for the jury. See Randolph Co. Hospital,
IY. Conclusion
For all of these reasons, we conclude that the trial court’s denial of the School District’s motion for summary judgment was proper. The School District has not met its burden of showing that it is entitled to discretionary function immunity under the ITCA, since C.J. and B.K. challenge the implementation rather than formulation of the safety plan, and since the safety plan was not the result of the type
Affirmed.
Notes
. Phelps repeated the sixth grade.
. Principal Lipps also notified Phelps's probation officer of Phelps’s threat. Following a March 2010 incident where Phelps threаtened another student, Phelps was adjudicated a delinquent and placed on probation for six months. After Phelps threatened to "blow up” the school, Phelps's probation officer unsuccessfully sought to revoke Phelps's probation.
. The safety plan also provided for a school anti-bullying policy which requires that anyone who is a victim or witness to bullying report the behavior to the school office. Principal Lipps is responsible for investigating claims of bullying.
. N.A. apparently knew that Phelps possessed a gun, and Phelps had stated to N.A. that he wanted to shoot C.J., but N.A. did not warn C.J. that Phelps had a gun because she did not believe Phelps would really use the gun to attack C.J.
. Phelps apparently stole the handgun from the home of his former stepfather.
. B.K. declined to file a separate appellate brief, but instead joined in C.J.’s appellee’s brief.
. We held oral argument in this appeal on April 26, 2014, at Taylor University in Upland, Indiana. We extend our gratitude to the faculty, staff, and students for their hospitality and commend counsel for the quality of their written and oral advocacy.
. Here, the School District cites Leo Mach. & Tool, Inc. v. Poe Volunteer Fire Dep’t, Inc.,
. The court cited Indiana Code section 20-8.1 — 5—2(b), which has since been replaced with similar language found in Indiana Code section 20-33-8-10(a) ("A principal may take action concerning the principal’s school or a school activity within the principal’s jurisdiction that is reasonably necessary to carry out or prevent interference with an educational function or school purposes.")
. Lipps’s affidavit provided that "I, and the assistant principal, frequently re-evaluated West’s school safety plan in light of these meetings.” Appellant’s App. pp. 97-98.
. Phelps's status read, "Today is the day" and "Don’t use your mind, use your nine.” Appellant's App. pp. 750-752.
. The following exchange occurred between C.H. and Phelps's defense counsel:
Q: Did you and [N.A.] and a whole bunch of sixth graders tell Mrs. Lipps that [Phelps] was going to shoot [C.J.]?
A: No. I didn't tell Mrs. Lipps anything. Appellant’s App. pp. 753-54.
.Shortly after the shooting, C.H.'s classmate, A.R., made a similar statement to a reporter from local news station Fox 59.