M.S.D. OF MARTINSVILLE, Appellant-Defendant,
REBECCA JACKSON, individually and As parent and legal guardian of C.J. a Minor, and KELLI DEARTH, Minor, and KELLI DEARTH, Guardian of B.K., a Minor, Appellees-Plaintiffs
APPEAL FROM THE MORGAN SUPERIOR COURT. The Honorable G. Thomas Gray. Cause No. 55D01-1109-CT-1984.
ATTORNEYS FOR APPELLANT: THOMAS E. WHEELER II, MAGGIE L. SMITH, Frost Brown Todd LLC, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: THOMAS W. BLESSING, IAN THOMPSON, Hollingsworth & Zivitz, P.C., Carmel, Indiana.
MATHIAS, Judge. ROBB, J., and BRADFORD, J., concur.
After 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.
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, he accumulated a total of fifty discipline referrals, forty-three of which were for disrespect toward school
personnel or failure to follow school rules. Phelps also had seven discipline referrals for harassing, threatening, and physically assaulting other students. On March 2, 2011, three weeks before the shooting, Phelps commented to some of his classmates that he wanted to " just blow up the school." Appellant's App. p. 712. After Phelps's classmates reported his remark, the school suspended Phelps for ten days. Phelps remained barred from entering school property except to take the ISTEP test. Because of his overall disciplinary history, the school's principal, Suzie Lipps (" Principal Lipps" ) also initiated expulsion proceedings against Phelps. However, before Phelps was expelled, and about a week before the shooting, his mother withdrew him from school.
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 school personnel.
On the morning of the shooting, March 25, 2011, Phelps's Facebook status read " [t]oday is the day" and " [d]on'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 and the school's three surveillance cameras, positioned at three of the school entrances, were functioning properly that morning. One of the school's entrances was unlocked from 6:30 a.m. to 7:30 a.m.; two other entrances were unlocked from 7:10 a.m. to 7:30 a.m.; and the five school employees who were assigned to various positions around the school's exterior to monitor student arrival were in place beginning at 7:00 a.m. All of the monitors knew Phelps and were aware that he was prohibited from being on school property. None of the monitors
noticed Phelps when he arrived at the school, although several students did. No students reported Phelps's presence to school personnel, even though " everybody knew" that he was banned from school property and even though the students saw that Phelps carried in his back pocket what appeared to be a wrench covered in a cloth. Appellant's App. pp. 141, 252-53.
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."  Appellant's App. pp. 138-39. C.J. replied, " I don't care." Id. at 138. C.J. then sent a text message to his mother to tell her that Phelps wanted to fight him. C.J.'s mother told him via text message to go to the school's office. However, C.J. remained in the school's vestibule because he wanted to show Phelps that he was not afraid of him and because he didn't believe that Phelps would actually assault him. Another MWMS student, B.K., and two other students also remained in the vestibule with C.J.
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 from his waistband, and fired two shots into C.J.'s stomach. The ejected shell casings from the bullets hit B.K., injuring his hand. After the shooting, Phelps fled the scene. C.J. was transported via Lifeline to Methodist Hospital in Indianapolis.
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 Martinsville 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,
that C.J. was contributorily negligent, and that the School District did not breach its duty to C.J. and B.K. The parties filed briefs, and the trial court held a hearing on the motion on March 8, 2013. That same day, the trial court issued an order denying the School District's motion for summary judgment.
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:
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.
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009) (citations omitted).
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, 901 N.E.2d 529, 531-32 (Ind.Ct.App. 2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo.
Crum v. City of Terre Haute ex rel. Dep't of Redev., 812 N.E.2d 164, 166 (Ind.Ct.App. 2004).
Importantly 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, 930 N.E.2d 1 (Ind. 2010).
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, 929 N.E.2d 247, 251 (Ind.Ct.App.
2010). Pursuant to the ITCA, " governmental entities can be subjected to liability for tortious conduct unless the conduct is within an immunity granted by Section 3 of [the] ITCA."
Oshinski v. N. Ind. Commuter Transp. Dist., 843 N.E.2d 536, 543-44 (Ind.Ct.App. 2006). The party seeking immunity bears the burden of establishing that its conduct comes within the ITCA.
Peavler v. Bd. of Comm'rs of Monroe Cnty., 528 N.E.2d 40, 46 (Ind. 1988).
The ITCA provides that a governmental entity or governmental employee who acts within the scope of that employee's duty will not be liable if a loss results from " [t]he performance of a discretionary function[.]" 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, 416 N.E.2d 1296 (Ind.Ct.App. 1981).
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, 427 N.E.2d 2, 4 (Ind.Ct.App. 1981). We classified conduct as discretionary " when it involves [discretion] on the part of the officer to determine whether or not he should perform a certain act, and, if so, in what particular way[.]"
Adams v. Schneider, 71 Ind.App. 249, 124 N.E. 718, 720 (1919).
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 characterized 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 ...