“We are not permitted to consider evidence which is not contained within the record on appeal.”
How later courts described this case
- “We are not permitted to consider evidence which is not contained within the record on appeal.”
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 27 2018, 9:12 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE CITY
Sarah Graziano OF COLUMBUS
Hensley Legal Group, PC Joseph M. Hendel
Indianapolis, Indiana Stephenson Morow & Semler
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Teresa Barton, February 27, 2018
Appellant-Plaintiff, Court of Appeals Case No.
03A01-1709-CT-1978
v. Appeal from the Bartholomew
Superior Court
Columbus Robotics, Inc., The Honorable Kathleen Tighe
Columbus Festival of Lights, Coriden, Judge
Inc., Paragon Meeting & Events, Trial Court Cause No.
LLC, The City of Columbus, 03D02-1607-CT-4147
Indiana, and Reising Radio
Partners, Inc.,
Appellees-Defendants
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018 Page 1 of 8
Case Summary
[1] Teresa Barton was injured while attending an annual parade held in Columbus.
She filed a personal injury action against Columbus Robotics, Inc.
(“Robotics”), Columbus Festival of Lights, Inc., the City of Columbus, Indiana
(the City”), and Reising Radio Partners, Inc. (collectively “the Defendants”).
The City requested dismissal on the basis that it was entitled to governmental
immunity pursuant to Indiana Code Section 34-13-3-3(11). The trial court
granted the City’s motion to dismiss, and Barton claims that this was error.
Finding no error, we affirm.
Facts and Procedural History
[2] On December 6, 2014, Barton attended the annual Festival of Lights parade in
Columbus. During the parade, a robotics display veered from its designated
course and struck Barton, injuring her. Barton filed a personal injury action
against Robotics. Based on Robotics’ responsive pleading, Barton filed a
motion for leave to amend her complaint to add the remaining Defendants,
which the trial court granted.
[3] Shortly thereafter, the City filed a motion to dismiss Barton’s amended
complaint, claiming that Barton stated no operative facts to put it on notice
concerning its potential liability. Barton filed a second motion for leave to
amend her complaint, which was granted. The City filed a Trial Rule 12(B)(6)
motion to dismiss for failure to state a claim upon which relief can be granted,
asserting that it was entitled to statutory governmental immunity. The trial
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court issued an order granting the City’s motion and dismissed the City as a
defendant. This interlocutory appeal ensued. Additional facts will be provided
as necessary.
Discussion and Decision
[4] Barton contends that the trial court erred in granting the City’s motion to
dismiss. A Trial Rule 12(B)(6) motion to dismiss “tests the legal sufficiency of
the complaint, requiring that we accept as true all facts alleged in the
complaint.” Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind.
2017). “We review 12(B)(6) motions de novo and will affirm a dismissal if the
allegations are incapable of supporting relief under any set of circumstances.”
Id. (quoting Price v. Ind. Dep’t of Child Servs., 80 N.E.3d 170, 173 (Ind. 2017)).
Additionally, we “affirm the dismissal if the decision is sustainable on any basis
in the record.” Id.
Section 1 – The City’s motion to dismiss did not present
matters outside the pleadings.
[5] As a preliminary matter, we address Barton’s assertion that the City improperly
raised matters outside the pleadings in its motion to dismiss. Matters outside
the pleadings cannot be considered when ruling on a Trial Rule 12(B)(6)
motion. Sinks v. Caughey, 890 N.E.2d 34, 39 (Ind. Ct. App. 2008). Trial Rule
12(B) provides that where matters outside the pleadings are presented and not
excluded by the trial court, the motion to dismiss under paragraph (6) “shall be
treated as one for summary judgment.” “‘Matters outside the pleadings’ are
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‘those materials that would be admissible for summary judgment purposes,
such as depositions, answers to interrogatories, admissions, and affidavits.’”
Holland v. Rizzo, 872 N.E.2d 659, 663 (Ind. Ct. App. 2007) (quoting Fox Dev.,
Inc. v. England, 837 N.E.2d 161, 164 (Ind. Ct. App. 2005)), trans. denied.
“Neither arguments of counsel nor allegations in memoranda qualify as
evidentiary materials for purposes of a motion for summary judgment.”
Richards-Wilcox v. Cummins, 700 N.E.2d 496, 499 n.3 (Ind. Ct. App. 1998).
[6] Particularly, Barton challenges the City’s reference to having issued a permit for
the parade, claiming that because she did not reference any permit in her
complaint, the permit was a matter outside the pleadings. As such, according
to Barton, the trial court should have denied the City’s motion and converted it
to a motion for summary judgment, with discovery. However, the City’s
motion to dismiss does not reference a permit but simply reads, “Columbus is
immune from claims stemming from its approval of the Festival of Lights
Parade and its route. Ind. Code § 34-13-3-3(11).” Appellant’s App. Vol. 2 at
71. The challenged reference to a permit was included in the City’s supporting
memorandum, which reads in part, “Columbus is being sued because it issued a
permit and approved a parade to take place in the city.” Id. at 76. In short, the
reference to a permit was made only as a part of counsel’s argument in the
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City’s memorandum and, as such, does not amount to the presentation of
matters outside the pleadings.1
Section 2 – The trial court did not err in granting the City’s
motion to dismiss.
[7] Barton filed a negligence action against the Defendants for her personal
injuries. In its motion to dismiss, the City asserted that it is entitled to
governmental immunity under Indiana Code Section 34-13-3-3. “The purpose
of [such] immunity is to ensure that public employees can exercise their
independent judgment necessary to carry out their duties without threat of
harassment by litigation or threats of litigation over decisions made within the
scope of their employment.” Bartholomew Cty. v. Johnson, 995 N.E.2d 666, 672
(Ind. Ct. App. 2013) (quoting Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind.
2003)). The issue of a governmental entity’s immunity is a question of law for
the courts, to be reviewed de novo. Id. at 671-72 (quoting E. Chicago Police Dep’t
v. Bynum, 826 N.E.2d 22, 26 (Ind. Ct. App. 2005), trans. denied (2006)).
Immunity assumes negligence but denies liability. Thus, the
issues of duty, breach and causation are not before the court in
deciding whether the government entity is immune. If the court
finds the government is not immune, the case may yet be decided
1
The City challenges as improper Barton’s references to (1) recent discovery that “has since revealed that the
City did in fact play a role in the approval and designation of the parade route”; and (2) deposition testimony
by a city representative indicating “that the City was responsible for decisions upon which a reasonable jury
could find fault on the part of the City.” Appellant’s Br. at 12, 13 n.2. These assertions are based on
statements not included in the record on appeal and thus are not proper for our consideration. See 3155 Dev.
Way, LLC v. APM Rental Props., LLC, 52 N.E.3d 854, 860 (Ind. Ct. App. 2016) (“We are not permitted to
consider evidence which is not contained within the record on appeal.”).
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on the basis of failure of any element of negligence. This should
not be confused with the threshold determination of immunity.
Id. at 672 (quoting Peavler v. Bd. of Comm’rs of Monroe Cty., 528 N.E.2d 40, 46-47
(Ind. 1988)).
[8] The City sought dismissal based on Indiana Code Section 34-13-3-3(11), which
provides that a governmental entity or employee acting within the scope of
his/her employment is not liable if a loss results from “[t]he issuance, denial,
suspension, or revocation of, or failure or refusal to issue, deny, suspend, or
revoke any permit, license, certificate, approval, order, or similar authorization,
where the authority is discretionary under the law.” Barton does not dispute
the discretionary nature of the City’s authority to allow a parade to take place
on its streets. She simply maintains that her claims against the City do not fall
within the statutory grant of immunity. We disagree. Barton’s second
amended complaint includes the following allegations specific to the City:
15. Upon information and belief, the City of Columbus
designated and/or approved the streets, path and/or routes used for
the Festival of Lights Parade in Columbus, Indiana.
16. Upon information and belief, the City of Columbus
designated and/or approved the areas that spectators of the Festival
of Lights Parade would occupy during the Festival of Lights
Parade in Columbus Indiana on December 6, 2014.
Appellant’s App. Vol. 2 at 59 (emphases added). As is clear from the plain
language of the complaint, Barton’s allegations directly address the City’s
decision to “approv[e]” or provide “similar authorization” for the parade’s
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route and the spectators’ designated areas, thus tracking the language of Indiana
Code Section 34-13-3-3(11).
[9] Barton cites the following paragraphs of her complaint in arguing that she pled
additional operative facts sufficient to avoid dismissal:
18. The Defendants were required to exercise reasonable and
ordinary care in the designation of the path and/or route of the
Festival of Lights Parade in Columbus, Indiana on December 6,
2014.
19. The Defendants were required to exercise reasonable and
ordinary care in the designation of the areas spectators could
occupy during the progression of the Festival of Lights Parade in
Columbus, Indiana on December 6, 2014.
….
29. The Plaintiff was injured as a direct and proximate result of
the Defendants’ negligent actions leading up to and occurring at
the Festival of Lights parade of December 6, 2014. One or all of
the Defendants’ negligence includes but is not limited to those
actions alleged herein as well the following:
….
e. The Defendants failed to have or ensure compliance with
safety protocols by any participant showcasing the robotics which
were included within the Festival of Lights parade.
Id. at 59, 61.
[10] Paragraphs 18 and 19 are not factual allegations at all; instead, they are merely
recitations of the standard of care incident to negligence actions. In other
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words, these paragraphs do not allege facts to support any assertion that the
City (or any Defendant) failed to use ordinary care in establishing the parade
route and designating spectator viewing areas, but rather simply state that
Defendants were required to do so. As for paragraph 29, we observe that it
begins with a legal conclusion on the issue of causation. We reiterate that the
issues of duty, breach of duty, and causation are not before the court in
determining whether a government entity is immune. Johnson, 995 N.E.2d at
672. We also note that subparagraph 29(e) alleges acts for which the City
enjoys governmental immunity under Indiana Code Section 34-13-3-3(8)(A),
that is, “[t]he adoption and enforcement of or failure to adopt or enforce … a
law (including rules and regulations).” As stated, we will “affirm the dismissal
if the decision is sustainable on any basis in the record.” Esserman, 84 N.E.3d at
1188.
[11] In sum, Barton’s complaint alleges operative facts for which the City is entitled
to governmental immunity. As such, negligent or not, the City has no liability
to Barton, and dismissal therefore was proper under Trial Rule 12(B)(6).
Accordingly, we affirm.
[12] Affirmed.
Robb, J., and Bradford, J., concur.
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