*1 plaintiff a motorist or an injured by utility poles that whether was persons all today's occupant, it cannot be doubted pose no unreasonable risk otherwise l summary judgment decision will render harm. any practically unavailable time an accident disapprove of panel did not Id. The Cornelius telephone pole. panel involves a The Sell analysis, but concluded that foregoing correct; imposing such is tantamount was opposite res dictated the facts of Cornelius liability utility companies. upon absolute ult.5 majority goal that our agree I with the quali- GTE exercised In the instant analy- formulating implementing along placing poles statutory right in fied deciding parameters for sis "is to establish and, right-of-way because of the road legal matter cases will survive which limitation, only pole moved the 1.8 could have Op. 477. system perish." will and which the road even had it chosen feet further from duty analysis, proper I believe that under a set forth above in For the reasons do so. of the intoxicated condition view Sell, public policy consider- I believe that occupant, the and nature of driver and cause duty in imposition of a against ations counsel accident, of the road in and the condition this case. accident, vicinity the instant case summary, that the foreseeabil- I believe perish,. I affirm the should would ity public policy components summary judgment. Cornelius, dic- analysis, both Sell and under that GTE did not owe tate the conclusion undisputed facts
duty Goldsberry upon the Additionally, of this case. analysis. component lacking under the Sell is express my Finally, compelled I feel likely I consider to be concern about what holding. majority's ramification of the stated, duty generally a deter- previously is and Harold Katherine J. WILLIS court, by the while mination to be made Willis, Appellants-Plaintiffs, jury question. In re- proximate cause is gen- moving of all but the most consideration FIRE WARREN TOWNSHIP analysis and allo- eral of facts from the DEPARTMENT, Appellee- cating instead to such consideration Defendant. analysis, the court has re- proximate cause in such cases structured No. 49A04-9604-CV-141. practically into nonexistence. Appeals Indiana. Court of only example, the In the instant Goldsberry required to estab- thing that is Nov. 1996. jury get her case to a lish in order to occupant of a motor she was a motorist or an injured. It is irrele-
vehicle when she was majority's determination vant intoxicated, or Goldsberry were and Grubbs asleep admittedly fell while that Grubbs Yet, seriously disputed driving. be cannot initially left the road and the the car the result of a combina- accident occurred as By precluding tion of two factors. these into account taking such facts courts from inquiry single restricting them to the plan- Highway Department, distinguishing could facts were that IPL ning pole. relocate the to do so relocate had been requested pole, *2 Lulich, Lulich, Murphy & K.
Michael Indianapolis, appellee-defen- for Dowling, dant.
OPINION
Judge. RILEY, THE CASE STATEMENT OF Plaintiffs-Appellants Katherine J. Willis (the Willises) appeal and Harold Willis grant of Defendant-Appellee Warren Town- favor of (the Depart- Fire ship Department Fire ment).
We affirm.
ISSUE re- raise issues for our
The Willises two view, as: consolidate and restate which we Department the Fire whether duty to the Willises. HISTORY AND PROCEDURAL
FACTS 4:03 May approximately On firefighters re- Department pm., the Fire reported gasoline sponded to Upon arrival home. garage of the Willises' home, firefighters observed at the Willises' fire in one- appeared to be a localized what attempt- garage. half of the fire, believing that extinguish the ed to succeeded, garage they left they had their arrival. one hour after approximately approximately 8:15 evening, at Later that again Department called p.m., Fire reported fire at the Willises' respond to extinguished, fire was home. The second firefighters left the Department and the Fire p.m. 10:58 seene at 5, 19983, a com- April the Willises filed On Fire alleging that damages, plaint for completely "negligently failed to Department fire rekindled extinguish the fire and the personal home damaging [Willises] (R. 3). The Fire property." answered, defense raising as an affirmative from Department was immune Fire that the 34-4-16.5-3. liability under Ind.Code summary judg- filed a Young, Indianap- Willises Young, Young & P. John Department's ment on the issue olis, appellants-plaintiffs. that the court concluded immunity. The trial liability; immune from trans. denied. Department was however, Township Fire v. Warren Willis 325-26 Department, 650 OF A PRIVATE DUTY EXISTENCE trial reversed the court App.1995), statutory finding of an absence of the Fire deci on the basis *3 immunity previous opinion does not in our oper home was an the Willises' sion to leave cognizable necessarily legally in a result not fall within the which did ational function negligence. Mullin v. Munici- claim of See immunity. deciding In the statutory scope of Bend, 278, 288 pal City 639 N.E.2d South of only immunity the was we noted that (Ind.1994). negligence in ac- succeed a To appeal and that presented on issue "Inlo (1) tion, duty establish: a plaintiff the must viability of the concerning the other issue its part the defendant to conform on the of duty, pre as was negligence, such Willises' arising of care from its conduct to a standard 328, n. 1. at sented...." Id. (2) plaintiffs; a failure relationship with the court, the Fire Upon to the trial remand its conduct to to conform defendant summary filed a motion for Department (8) standard; injury proximately that and law, that, alleging as a matter of
judgment, duty. of Id. caused the breach duty to the Willises. The private owed no Fire granted trial court the duty normally of is The existence appeal. now motion. Willises In the court. Id. de question a of law for exists, duty termining the court whether AND DECISION DISCUSSION relationship the balances three factors: OF REVIEW parties; STANDARD the the reasonable between injured; foreseeability person harm to the of ruling reviewing In the (cit policy Id. public the concerns. summary judgment, this on a motion for Jarvis, 992, 575 N.E.2d 995 Webb v. applied by standard applies the same (Ind.1991)). against In to recover order Monsanto, v. 626 court. Miller the trial entity negligence, the for 538, (Ind.Ct.App.1998). Sum N.E.2d 541 duty plaintiff more than a must show only if mary appropriate the judgment is public as a whole. Greathouse v. to the there is designated evidence shows (Ind.1993). 364, Armstrong, 616 N.E.2d 368 material fact and genuine issue of Liability governmental entity not of a will judgment as a party is entitled to moving between the be found unless 56(C). Rule We Ind.Trial matter of law. gives special or parties is one that rise to fact, an inference any to a or resolve doubt as duty plaintiffs. Id. private owed to the therefrom, party in favor of the to be drawn summary judgment. Terre Haute opposing summary judgment, In its motion for Employers Bank v. First National Pacific City Ham Department Fire relied on (Ind. 1336, Co., 634 N.E.2d 1337 Insurance Cataldi, N.E.2d 1184 mond v. 449 moving party has Ct.App.1998). Once the Cataldi, App.1983). we held that a fire proving that there its burden sustained "attempt extinguish fire department's [a] to fact and of material genuine are no issues general duty to response in to its [is] made judgment to as party is entitled public." safety protect and welfare summary law, opposing party matter of that a We further held specific facts indi judgment must set forth duty if the special or is not created in genuine issue dis cating that there is way "in no different department's Rice, 659 pute. Shackelford any citizen." Id. from its other A denied. 1145 transfer Fire present In the judgment must be af summary correct, designated that its fire- evidence establish final result is even firmed where the immediately responded to the re- fighters rendered on a different judgment if the their ported fire. The followed adopted by court. theory one than the Inc., Co., extinguishing procedure normal Glenroy Construction Ramon v.
487
test,
by our
they
which was later modified
stayed at the seene until
be-
they
Mullin,
extinguished.
supreme
court in
concern because
believed
concurs.
completely extinguished. The Willises now
STATON, J.,
separate
concurs with
firefighters' "assurances" cre-
argue that the
'
opinion.
duty
duty
a
than the
ated
different
public
large
that
the Willises'
and
STATON, Judge, concurring.
them to
reliance on the assurances caused
concur,
high
opportunity
I
and take this
vigilance.
relax their
public/private
light the limited nature of the
response
Depart
the Fire
The Willises'
duty analysis contained in Mullin v. Munici
summary judgment
does
ment's
Bend,
City
pal
South
must be such ADMINISTRATION, Appellant- justifiably to injured person has induced benefit of taking action for the rely on its Respondent, detriment." Id. person to his particular that imposing underlying rational v. is that in such a situation government on the CALVERT, Timothy Appellee-Petitioner. entity is aware of
"where the and leads particular individual plight 09A04-9602-CV-50. No. governmental res- person to believe of Indiana. Appeals Court used, the individual be cue services will detrimentally promise, it would relies on Nov. worse off individual unfair to leave be sought not assis- if the individual had than at all." Id. at government
tance from the 284-85. duty anal public/private
Application of
limited to situations
ysis of Mullin is
failure to act. Henshilwood
government's
1062, 1067
County, 653 N.E.2d
Hendricks
*5
spe
(Ind.Ct.App.1995), trans. denied. More
only in the
has been used
cifically, Mullin
emergency services
failure of
context of the
Dial,
calamity.
Koher v.
respond to a
See
reh. de