Mullin v. Municipal City of South Bend

рurchased equipment incentive when it new placed it in Indiana. As a into service selling tax credits

result of the investment that Indiana depreciation deductions on gross income.

equipment, Bethlehem earned gross applies tax to that

The Indiana income

gross income because the income was derived activities, business, or other sources

from Additionally,

within Indiana. under the fed- currently controlling

eral decisions that are issue, decisions this Court must which

follow, poses Clause no obsta- the Commerce gross in-

cle to the taxation of Bethlehem's

come from the sale of federal tax benefits equipment

attributable to located Indiana. reasons,

For I these dissent. J.,

DeBRULER, concurs. MULLIN, Individually, A.

Jeri and as cus parent

todial of Kathleen Mullin and Mullin, deceased, Appellants

Shawn

(Plaintiffs below), BEND,

MUNICIPAL CITY OF SOUTH (Defendant below).

Appellee

No. 71S03-9408-CV758.

Supreme Court Indiana.

Aug.19,1994. Friday

On the CommunicationsSu- 6/21/84 pervisors Dept. and the Fire Chiefs met to Dispatch. discuss ‍‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​​​​‌‌​​‌‌​​​‌‌​​​​​​‌​​‌‌‍the Status of the Fire meeting very productive This out suggestions of it came several that we impliment need to [sic] order that we searve[sic) public can better interest doing and insure that we are what is de- Dispatch; sired in the area of Fire Follow- ing changes are the and or additions effec- tive with this Memo.... MEDICS will be dispatched involving to all calls HIGH RISES, HOMES, NURSING RIVER RUNS, upon reiept SHOPPING MALLS [sic] of a Fire or Fire Alarm. Call dispatched addition the MEDIC will be ALL FIRE [sic] CALLS SOME- WERE ONE IS THOUGHT TO BE INSIDE. IF THEN UNKNOWN] DO NOT SEND THE MEDICS. City summary judgment

The moved for arguing liability was immune from Act, under the Tort Claims Indiana Code Lee, Webb, Hardig, Robert D. T. William 34-4-16.5-8(6) (7) (1993), & and that it Groves, Bend, appellant, Lee & South private duty plain breached no owed to the Jeri A. Mullin. granted tiffs. The trial court the motion Rosenfeld, finding Robert Deputy City Atty., City C. as a matter of law that owed Bend, appellee, City private duty South of South to Mullin or her children. The trial court did not decide whether Bend.

City is immune Indiana Tort Claims Act. appealed; Mullin Court ON PETITION TO TRANSFER Appeals entry summаry judg affirmed the SULLIVAN, Justice. grounds. ment on the same Mullin v. Mu nicipal City (1993), Ind.App., South Bend Mullin Jeri lived in Bend with South her 618 N.E.2d 42. children, two Shawn and Kathleen. At 5:27 5, 1985, neighbor a.m. on report- November transfer, Mullin now seeks and asks that aed fire at the Mullin household the 911 City we hold that is not immune and Emergency Dispatch of the South Bend Po- recognize that the was under a common Department. dispatcher lice When the law to send an ambulance to her home house, anyone if askеd was inside the dispatcher reasonably once the knew or neighbor responded "I think so." Fire should have known that the Mullin house was dispatched trucks but no ambulances were occupied. on fire and We address the immu- there, the seene. Once one of the fire units nity duty questions in turn. ambulance, requested an the first of which died; arrived at 5:44 a.m. Shawn Kathleen Standard of Review injured. against was Mullin filed suit by summary This case was resolved Bend, alleging of South that thе judgment. Our standard of review is well- negligent dispatcher's for the failure to reviewing established. The court faces the immediately. send an ambulance to the seene same issues that were before the trial court following posted notice had process. been and follows the same Greathouse v. dispatchers' police Armstrong break-room at the de- 616 N.E.2d 1984; June, partment Although party appealing grant from the immunity. grant the burden Hin summary judgmеnt has rowly against Jay County v. Board Comm'rs. shaw grant of sum- court persuading (1993),Ind., party erroneous, reviewing mary judgment was immunity bears the burden of estab seeking the trial court's carefully scrutinizes court Act. comes within the party against lishing its conduct to assure decision Peavler, at 46. summary judgment was entered whom having from its prevented improperly not provides $ Indiana Code 34-4-16.5-3 day in court. Id. part: pertinent employee appropriate entity or аn act- Summary judgment A employee's seope of the ing within the evidence sanctioned only pleadings if the 56(C) results employment "there is is not liable a loss Trial Rule show by Indiana any fact and as to material from: genuine issue judgment to moving party is entitled ... if facts ‍‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​​​​‌‌​​‌‌​​​‌‌​​​​​​‌​​‌‌‍are law." Even as a matter of (6) discretionary a performance of summary judgment proper is not

undisputed, function. "give rise to con undisputed if facts those [or] alter the out flicting whiсh would inferences or adoption and enforeement of Peoples Federal Sav. Bochnowski v. come." (including adopt or enforce a law failure to 282, Ind., (1991), 571 N.E.2d Ass'n & Loan act of regulations) unless the rules and moving party to The burden is on arrest or constitutes false enforcement of genuine issue prove the non-existence imprisonment. false Oelling v. Rao material fact. 189, If movant sustains discretionary 593 N.E.2d Immunity func for burden, upon opрonent may not rest this encompasses the notion that certain tions specific must set forth pleadings, but made the executive types of decisions genuine issue showing that there is a facts government should legislative branches of 56(BE). doubt, any If is TR. there for trial. subject judicial because of to review not be of the doctrine, be resolved favor the motion should because separation powers of "chillingeffect" on the Oelling, 593 litigаtion might have a opposing the motion. party N.E.2d at 190. policy is of difficult government's resolution sues, governmental deci certain or because

Immunity using a adequately reviewed cannot be sions negligence. Pe of traditional tort standard immunity, applicable, renders Because particu avier, a N.E.2d at 44. Whether negligence duty in this the issue of moot discretionary activity is a lar claim, v. Monroe it first. Peavler we address court, not thе question is a for function Ind., (1988), County Bd. Comm'rs. of at 46. factfinder. Id. 40, 46-47. N.E.2d applies "planning/opera City Indiana immunity asserted govern determining Act, whether tion" test for Indiana by the Tort Claims regulated is "discretionary." Id. The acts are through mental §§ 34-4-16.5-22 34-4-16.5-1 Code one, a instead is bright-line but is not a test cities, (1993). entities, as such Governmental of particular cireamstances of the function liability the torts commit subject to for are statement, immune a case. As each emрloyees unless one by their ted of formulation Peavler, include the planning activities applies. Act exceptions allocation as the policy on matters such deroga basic Act is in 42. Because the N.E.2d at Thus, example, Id. at 45.1 law, of resources. construe it nar- tion of the common balancing b) involved the conduct Whether be considered out 1. Peavier set factors readily a ascer- reliance on factоrs without making of the determination: standard; tainable rule or of the conduct- 1. The nature c) requires judgment conduct objec- Whether a) regulatory conduct has a Whether the decisions; based on policy tive; test, placement signs this of traffic merely oper whom to contact and when were function, Peavler, might discretionary Greathouse, be a ational. 616 N.E.2d at 367. As 48, necessarily 528 N.E.2d at but is not so. Court, Justice DeBruler wrote for the "If County Board Comm'rs. v. Adams policy every formulation included act which (1992), 1326, Ind.App., Price 587 N.E.2d choice, any involves element of Gerbers, ability responsible trans. denied. See also Ltd. v. every make decisions, County (1993), Drainage Ind.App., Wells Bd. act discretionary would then fall within the 997, 1000, (county 608 N.E.2d trans. denied exception." function Id. at 368. approval filling drain board's drain was Peqvier As suggest, Greathouse and discretionary); Indianapo Cromer v. City's adopt policy decisiоn to limiting (1989), Ind.App., lis 666 cireumstances that ambulances would be sent (decision city redesign council not to road might discretionary to fires activity well be a discretionary immunity); City fell under city However, government. the outcome Seymour (1989), Onyx Paving Co. Ind. depend upon this case does not whether 951, 954, denied, App., 541 reh'g negligent having adopted such (city's stop trans. denied issuance of a work policy, but rather whether discretionary function); Boyle order was subject liability policy because the was not Fighters v. Anderson Fire Ass'n Local followed. Ind.App., AFL-CIO City argues The dispatchers that were re- (city's trans. denied decision concern quired judgment to deciding exercise when ing fight alternative means to fire after fire whether to send an ambulance and that this fighters went on strike is exercise of discre judgment type policy constituted the deci- tion}. such, sions covered argu- the Act. As its Most instructive is Greathоuse v. rejected ment is the same one in Greathouse. (1993), Ind., Armstrong In 364. dispatcher may judgment have exercised case, motorcyclist that a was killed when he in deciding whether to send an ambulance to collided with a bull that had wandered onto fire, the but such was exercised highway. collision, the Two hours before the only in following pre-deter- the context of a the sheriffs office was notified that cattle policy. mined dispatcher began attempts were loose. A to City's immunity claim of identify cattle, under and contact the owner of the $4-4-16.5-3(7) § Indiana Code is alleged but without success. also mis Plaintiff that placed. provides immunity That section department the sheriff's for negligent was in its adoption attempts to do "the and Seeking immunity so. enforcement of or failure 34-4-16.5-3(6), adopt Indiana to or a (including Code enforce law the sheriff rules and regulations) dispatcher contended that unless the act because the had of enforcement prioritize demands, competing had to constitutes imprison the dis false arrest or false patcher engaged had policy ment." The policy formulation. reasons that rejected This Court that sending unoccupied characterization of not ambulances to house dispatcher's Instead, regulation" activities. the ree- fires a is "rule or within the dispatcher ord showed merely 3(7); meaning of if dispatcher Section following pre-determined policy a locating policy, failed to follow that that was a failure stray Thus, thus, owners of livestock. regulation, to enforce a rule or dispatcher 3(7). decisions made essence, about is immune under In Section d) b) adopting gen- Whether the decision liability involved Whether will affect the effective ad- them; principles only applying eral or question. ministration function in e) Whether -the conduct involved establishment capacity 3. The of the court to evaluate the schedule; and and plans, propriety specifications government's action- £) assessing prior- Whether the decision involved Whether tort standards offer an insufficient ities, weighing budgetary considerations or plaintiff's evaluation of the claim. allocation of resources. Peavler, 528 at N.E.2d governmental operations 2. The effect on a) feasibility Whether the decision affects the or practicability government program; of a City responds that the govern- pied and on fire. The of a City argues that the failure any, duty was a owed to duty respond, to poli- governmental to follow a employee ment private individual. public, not to a governmental give rise to liabili- cy can never negligence. ty for duty ques is a The existence policy is not following governmental But Gariup Constr. Co. of law for the court. tion it, enforcing at least as the same v. Foster lengthy Act. A of the Tort Claims context exists, duty determining whether meaning of "enforcement" discussion of (1) the relation three factors: court balances 3(7) Quaken found in as used Section (2) the reasonable ship parties; between Ind., Lackey bush v. injured; foreseeability person to the of harm scope of While the reh'g n. denied. policy concerns. Webbv. Jar public beyond "traditional extends well enforcement vis, govern 575 N.E.2d at 995. When such as the arrest law enforcement activities duty public to the at ment's is one owed id., by police," suspects pursuit or liability governmental large, there is Quakenbush make clear cases cited Instead, plaintiff seeks negligence. where those is limited to seope of "enforcement" entity, recovery governmental against a entity or activities which parties must be one relationship between attempt compel to employees compel or its to a to a owed gives rise laws, another rules the obedience of Greathouse, ‍‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​​​​‌‌​​‌‌​​​‌‌​​​​​​‌​​‌‌‍particular individual. attempt to sance regulations, or sanction or apply this states also N.E.2d at 368. Other a violation thereof. tion private duties. public and distinction between compelling or neither Here, Annоtation, Derrick, generally H. See John attempting compel obedience of another Excusing Rule Govern Modern Status of sanctioning or at- regulation nor its rule or Theory Liability on Tort mental Unit from Particular, tempting to a violation thereof General, sanction Duty Not Only That in within engaged was not enforcement so Circumstances, 38 Owed Was 3(7). meaning (1985). the of Section 1194 A.L.R.Ath dispatcher do not fall with- The acts of the acknowledges this distinction bе- Mullin by scope immunity provided the of duty a duty public to the and tween a owed City Accordingly, the Tort Claims Act. that, and particular individual owed to a not immune. alone, emergen- city's dispatch of standing a duty. private a cy does not create services Duty however, out, courts that Indiana points She immunity does not absence of to determine when not articulated a test have cognizable exists, necessarily legally urges in a us to duty result and private a such (1) negli- identity in To succeed a negligence. duty claim of the private find a (1) reasonably so as to foreseeable plaintiff is action, plaintiff must establish: genee the from the distinguish plaintiff the con of the defendant to duty part a on the (2) arising by injuries a standard of care his conduct to suffered public; form and (2) plaintiff; Appli- a relationship reasonably with the foreseeable. from his plaintiff are case, argues, his con defendant to conform to her she failure of the of this test cation City private (8) a owed standard; injury establish that would an that and duct to duty. by caused the breach proximately immediately. ambulance duty dispatch an to (1991), Ind., 575 N.E.2d Webb v. Jarvis solely on focuses proffered test Mullin's 995, reh'g denied. Although foreseeability. the element of foreseeability factor in the is one agree that granted Summary that it is not the teaches duty. duty equation, Webb City оf the absence of because to the plaintiff A foreseeable only consideration. duty City owed her a that the Mullin asserts not, standing injury is a foreseeable with to her house onee dispatch an ambulance duty private have reasonably should alone, City knew or to establish sufficient entity. occu- the Mullin house was both known that (2) City urges adopt knowledge us to a different test part on the of the munici- York, Cuffy out in set New pality harm; inactiоn could lead to N.Y.2d 513 N.Y.S.2d (1987). provides This test that a (3) justifiable by and detrimental reliance duty dispatch only an ambulance exists injured party municipality's on the (1) city duty, by where assumes a either undertaking. affirmative (2) action; promise city knows that This expressed test is identical to that (8) harm; inaction could lead to there is some Cuffy, except require any does not city direct contact between the and the in Georgia direct contact. The court deleted jured party; injured justifi party requirement direct contact for two rea ably Id., city's promise. relies on the First, sons. might many because there be N.Y.S.2d at 505 N.E.2d at 940. injured instances which party foreseeability contrast to Mullin's mod- unable to contact municipality's agents el, Cuffy test addresses relationship directly, example, physical lim because parties between public policy con- itations, yet requirements meets the other requires. cerns as Cuffy Webb As the court the test. The court reasoned that to free the stated: municipality duty solely from a because of injured party's [Thhe reliance is as critical such limitations would be unfair. establishing special the existence of a Rome, Second, 426 S.E.2d at 863. the Geor relationship municipality's as is the volun- gia court observed that requiring the states tary undertaking affirmative direct contact theory did so on the that there act. That provides element the essential city's could be no reliance on promise causative link "special duty" between the contact, without such but concluded that this municipality assumed and the al- concern was requirement addressed leged Indeed, injury. at the heart of most detrimental reliance. Id. "special duty" of these cases is the unfair- persuaded are We Rome perceived ness that the pre- courts havе test is the better identifying one for cluding recovery municipality's when a vol- private duty existence of a because this test untary undertaking injured has lulled the takes into account each of the three factors party into a security false sense of and has requires Webb only that we balance. Not thereby induced him either to relax his injured the harm to the party must be fore- vigilance own forego or to other available seeаble, relationship govern- between the protection. hand, avenues of On the other entity injured mental and person the must be when the reliance element is either not governmental such entity that has in- present or, at all if present, causally is not injured person duced justifiably rely harm, related to the underly- ultimate this taking on its action for the benefit of that ing inapplicable, concern is and the invoca- particular person to his detriment. The test "special duty" exception tion of the is then also existing accommodates reflecting law justified. longer public policy that the mere existence of res- at 375, (citations Id. 505 N.E.2d at 940 omit not, alone, cue services standing impose does ted). upon governmental entity to use applicable After review of authorities and particular them for the benefit of a individu- policy stake, of consideration issues at Fair, Simpson's al. See Food Inc. v. of analysis find the expressed better was (1971), 387, 394-95, Ind.App. Evansville 149 Jordan, 26, ("We Rome v. 263 Ga. 426 impose 876 will not of (1993), S.E.2d where the court re upon government obligation guar- quired following imposition elements for health, antee and assure the hap- wealth and private duty governmental on defen piness every living person. of The law must dants: encourage protect subjective those val- explicit by ues, an municipali- goals assurance possible and ideals where but it

ty, actions, through promises guarantee or that it (Emphasis cannot them." in the injured However, party; would act on of the original)). governmen- where the behalf GIVAN, J., separate in result with concurs particu- plight of a of the entity aware tal ‍‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​​​​‌‌​​‌‌​​​‌‌​​​​​​‌​​‌‌‍opinion. to believe person and leads individual lar will be services rescue J., DICKSON, with concurs and dissents detrimentally relies used, individual and the separate opinion. to leave be unfair promise, it would on that individual off than the worse

that individual GIVAN, Justice, concurring result. govern- from the sought assistance had not majority opin- of the I in the result concur ment at all. summary judg- affirming grant of ion Bend; City of South in favor of the ment de previously with This test is consistent however, con- disagree with the dictum I example, in Great- For Indiana cases. cided concerning majority opinion in the house, was aware tained although dispatcher immunity under the City has whether have or should and knew loose cattle Act, 84-4-16.5- Ind.Code Tort Claims to the posed a risk known that 8(6)(7). by gov no assurance public, there was act on behalf entity that it would ernmental majority opinion, by the pointed out As gov reliance on motorcyclist and no of the v. in Greathouse question was addressed by motorcyclist. See activity ernmental N.E.2d 364. Armstrong Lewis v. See also N.E.2d at 369. bar, However, question at this in the case (1990), Ind.App., 554 N.E.2d Indianapolis by the trial court not addressed either (no duty for lack 13, 15, denied trans. only Appeals and is introduced the Court there emergency response because majority sponte by way of dictum sua city help from the assurance neither opinion. City Ham by plaintiff); nor reliance manner in which I with the concur Ind.App., mond Cataldi majority opinion Appeals and the Court (city gave no assur trans. denied duty to the raised issuе deal with respond particu in a that firemen would ance in this case. appellants way). lar favorable to Justice, most DICKSON, concurring A review of the evidence and dis- City that by the no assurance Mullin reveals senting. the fire dispatched to would be an ambulance majority opinion with I with the concur Rather, dispatcher advised immediately. review. immunity standard of respect was on department fire neighbor that the However, from its discussion I dissent were dis- fire trucks way, and indeed its legal duty. The the issue of as to conclusion addition, there is In to the scene. patched in a duty exists of whether determination any reliance. detrimental no evidence necessarily resolved case is not particular fact, that Mullin was no evidence there is useful factors found to the three recourse the dis- City policy governing any aware of (1991), Ind., 575 v. Jarvis this Webb Court these cireum- Under patch of ambulances. constitute the should not 992. These stances, to establish has failed Mullin months duty. two Within tests exclusive court duty. trial existence Webb, contemporaneously rec- this Court judgment for the summary properly entered concept of nature of the nebulous ognized the City. test for no universal duty fact that and the v. Forum Cowe formulated. has been Conclusion N.E.2d Group, Inc. made can be statement No better grant transfer Accordingly, now where, duty find a сourts will than that the judgment summary grant of affirm rec- persons would general, reasonable Ind.Appel- Bend. City of South favor of the agree that it exists. 11(B)(8). ognize it late Rule Co., Foster Id., Inc. v. Gariup citing Constr. Ind., (quoting J., DeBRULER, SHEPARD, C.J., and Keeton, Torts The Law & W. W. Prosser concur. (5th Ed.1984)). majority at 359 opinion presents unnecessary an and unwise

construct. It is better that the common law rigid

avoid such artificial and formulations. disagree

I majority's also with the conclu- plaintiffs

sion that the failed to establish the private duty.

existence of a To contrary,

the factual averments this case convince

me that persons recognize reasonable would agree there exists a on the

part to exercise reasonable сare answering emergency calls from its dispatching

citizens and in the of ambulances. summary

I believe that should be

reversed and the cause remanded ‍‌​​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​​​​​​​​‌‌​​‌‌​​​‌‌​​​​​​‌​​‌‌‍for trial. KINDRED, Appellant-

James H.

Defendant, Indiana, Appellee-Plaintiff.

STATE of

No. 55A01-9403-CR-74. Appeals Indiana,

Court of

First District.

Aug. Kindred, pro

James H. se. Carter, Cen., Atty. Pamela Deana Meln- Smith, Gen., Deputy Atty. tire Atty. Office of ien., Indianapolis, appellee. ROBERTSON, Judge. appeals

James H. Kindred the denial of a motion to correct erroneous sentence which April he filed on following convie- conspiracy tion of escape adju- to commit dication as a habitual January offender on

Case Details

Case Name: Mullin v. Municipal City of South Bend

Court Name: Indiana Supreme Court

Date Published: Aug 19, 1994

Citation: 639 N.E.2d 278

Docket Number: 71S03-9408-CV758

Court Abbreviation: Ind.