King Ex Rel. King v. Northeast Security, Inc.

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:

C. DENNIS WEGNER ANDREW P. WIRICK

JEFFREY K. ORR Hume Smith Geddes Green &

C. Dennis Wegner & Assoc., P.C. Simmons, LLP

Indianapolis, Indiana Indianapolis, Indiana

JOHN P. DALY, JR.

MARK A. HOLLOWAY

Stephenson Daly Morow & Kurnick

Indianapolis, Indiana

DAVID M. MATTINGLY

MARY NOLD LARIMORE

Ice Miller

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

NICHOLAS S. KING, b/n/f )

RANDALL S. KING, RANDALL KING )

and PEGGY L. KING, )

) Supreme Court Cause Number

Appellants (Plaintiffs), ) 49S02-0104-CV-193

)

v. )

)

NORTHEAST SECURITY, INC. and ) Court of Appeals Cause Number

METROPOLITAN SCHOOL DISTRICT OF ) 49A02-9907-CV-498

WASHINGTON TOWNSHIP, )

)

Appellees (Defendants). )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Steven H. Frank, Judge

Cause No. 49D13-9610-CP-1856

CIVIL TRANSFER

June 27, 2003

RUCKER, Justice

In this appeal, we hold that a school district is not immune from a

claim that the district failed to take reasonable steps to provide security

for persons on its premises. We further hold that a security service

employed by a school district may be liable for negligence in carrying out

its contractually assumed obligations.

Facts and Procedural History

After some incidents of criminal mischief during the previous two

years, the Assistant Superintendent for the Metropolitan School District of

Washington Township (“the District”) entered into a contract with Northeast

Security, Inc. (“Northeast”) for security services at North Central High

School in the 1995-96 school year. Specifically, Northeast was to provide

three uniformed Special Deputies positioned outside the school in marked

white security vehicles from 7:00 a.m. to 3:30 p.m. The Special Deputies

were to perform the following duties:

Provide exterior patrols at checkpoints for all North Central High

School buildings by the means of three vehicle patrols occupied by

three Marion County Special Deputies provided and employed by

Northeast Security. These officers are trained personnel and

understand the procedures of patrol. They will also be responsible

for insuring all personnel that enter the premise[s] are possessing

the proper identification. They are to be observant of any criminal

activity which may occur in the parking lots and to the exterior of

the building.

R. at 53. Northeast was to be paid $6,375 every two weeks for these

services.

On April 18, 1996, the Northeast employee posted in the parking lot

was inside the school building making a personal telephone call when

classes were dismissed at 3:00 p.m. As Nicholas King stood in the school

parking lot waiting for a ride home with another student, a large crowd

approached. After a verbal exchange, the crowd increased and some began

yelling and screaming. Ultimately a student struck King, and then others

joined in. Finally, someone yelled that the police were coming and the

crowd of students quickly dispersed. One eyewitness stated he was one of

the last students to leave and never saw the police. As a result of the

beating, King suffered two fractures to his jaw as well as several

lacerations and bruises to his head and body.

King sued both Northeast and the District. Both defendants moved for

summary judgment on the ground that neither owed King a duty to protect him

from the criminal acts of third parties. The trial court granted summary

judgment in favor of Northeast, holding that King was not a third party

beneficiary of the security services agreement between Northeast and the

District. The trial court also granted summary judgment in favor of the

District on the ground that, as a governmental entity, it did not owe a

private duty to King to protect him from the alleged harm. King appealed.

The Court of Appeals affirmed summary judgment in favor of Northeast,

but held that the District could be liable to King for breach of its duty

to supervise the safety of its students. Accordingly, the Court of Appeals

reversed the trial court’s summary judgment order as to the District. King

v. Northeast Sec., Inc., 732 N.E.2d 824, 840-41 (Ind. Ct. App. 2000). Both

King and the District sought transfer, which we previously granted. King

v. Northeast Sec., Inc., 753 N.E.2d 10 (Ind. 2001).

Discussion

I. The School District

The Court of Appeals reversed the trial court’s grant of summary

judgment in favor of the District, finding the District owed a duty to

exercise reasonable care for the safety of students under its authority.

Id. at 833, 840-41. The District concedes that it had this general duty,

but contends that the District is protected by governmental immunity under

the Tort Claims Act and a common law doctrine that there is no duty to

protect against criminal activity of others. In the alternative, the

District argues that even if it is not immune, there is no breach of duty

because the District took reasonable steps for the safety of its students.

A. Common Law Immunity

For an interesting account of the origins of sovereign immunity at

common law, see Peavler v. Board of Commissioners of Monroe County, 528

N.E.2d 40, 41-42 (Ind. 1988). For these purposes, it is sufficient to note

that Indiana, like many jurisdictions, over the years found the doctrine

increasingly unsatisfactory. In 1972, in Campbell v. State, 259 Ind. 55,

284 N.E.2d 733, 736-37 (1972), this Court concluded that the doctrine of

sovereign immunity was an outmoded concept in today’s society, and

suggested that the proper forum for any debate over governmental immunity

was the legislature. Accordingly, Campbell held that governmental units

would generally no longer be shielded by sovereign immunity. Id. However,

Campbell cited three situations where a governmental unit would remain

immune from liability for acts or omissions that result in personal

injuries. These were: (1) where a city or state fails to provide adequate

police protection to prevent crime; (2) where a state official makes an

appointment of an individual whose incompetent performance gives rise to a

suit alleging negligence on the part of the state official for making such

an appointment; and (3) where judicial decision-making is challenged. Id.

at 737.

In response to Campbell, in 1974 the Indiana legislature enacted the

Indiana Tort Claims Act (“ITCA”) which identified a list of governmental

activities, now twenty-two in number, that are immunized from tort

liability. See Ind. Code § 34-13-3-3. After a number of detours since

that time, Campbell was largely reaffirmed in Benton v. City of Oakland

City, 721 N.E.2d 224 (Ind. 1999). Thus, some common law immunity doctrines

remain despite the ITCA’s codification of much of Indiana’s governmental

immunity law.

Benton held that a municipality could be held liable for failure to

warn of a dangerous condition in a municipally operated swimming facility.

Benton did away altogether with a malfeasance/nonfeasance test of immunity.

It also expressly limited a public/private duty test of immunity to claims

for failure to provide emergency services.[1] Id. at 233. King’s claim

here is therefore not governed by either doctrine. Benton spoke in terms

of duty rather than immunity:

We hold that Campbell is properly applied by presuming that a

governmental unit is bound by the same duty of care as a non-

governmental unit except where the duty alleged to have been breached

is so closely akin to one of the limited exceptions (prevent crime,

appoint competent officials, or make correct judicial decisions) that

it should be treated as one as well.

Id. at 230. To say the governmental entity is immune for acts or omissions

in described areas is the functional equivalent of asserting the entity has

no duty to anyone in carrying out those activities. Benton held that under

common law, governmental units have “the same duty of care as non-

governmental entities,” with the exception of the three Campbell areas. In

immunity terms, the governmental unit is immune under the common law only

if it is engaged in an activity closely related to one of the three areas

identified in Campbell.

Based on precedent establishing a duty to operate public facilities,

Benton rejected common law immunity for negligent operation of a municipal

swimming facility. Id. at 233-34. Precedent is also against the

District’s claim of immunity from King’s claim. We have held repeatedly

that school districts can be held liable for failure to take reasonable

steps to provide security for their students. Mangold v. Ind. Dep’t of

Natural Res., 756 N.E.2d 970, 974 (Ind. 2001); Beckett v. Clinton Prairie

Sch. Corp., 504 N.E.2d 552, 553 (Ind. 1987); Norman v. Turkey Run Cmty.

Sch. Corp., 274 Ind. 310, 411 N.E.2d 614, 617 (1980); Miller v. Griesel,

261 Ind. 604, 308 N.E.2d 701, 706 (1974). In Benton duty terms, the school

district has a duty to take reasonable steps for the protection of its

students. In immunity terms, failure to take reasonable safety precautions

is not within the common law immunity for failure to prevent crime.

The District relies on Simpson’s Food Fair, Inc. v. City of

Evansville, 149 Ind. App. 387, 272 N.E.2d 871 (1971), for its claim of

common law immunity. In that case, city police were held immune from

liability for failing to prevent crime in a store located in a high crime

area. The District contends that if immunity is not granted for a school’s

failure to prevent crime, then schools, school administrators, and school

boards will be “second-guessed by juries for the measures they should have

or could have taken to prevent criminal conduct of any student.”

Appellee’s Br. in Supp. of Pet. to Trans. at 5.

It is a matter for the legislature to the extent that school districts

or other governmental agencies whose mission is not law enforcement are

exposed to undesired liability. To the extent the District asserts common

law immunity, we think the school’s activities here are more “closely akin”

to those of landowners or businesses generally that must provide reasonable

security for their patrons and guests. See Delta Tau Delta, Beta Alpha

Chapter v. Johnson, 712 N.E.2d 968, 974 (Ind. 1999). Indeed, there is

specific precedent on this point. See Miller, 308 N.E.2d at 706

(recognizing that school authorities must exercise reasonable care and

supervision for the safety of the children under their control).

Finally, the Court of Appeals in this case concluded that Benton

applies only in the context of a governmental unit’s duty to maintain a

public recreational facility in a reasonably safe manner. King, 732 N.E.2d

at 833. In reaching this conclusion, the Court of Appeals relied on

Serviss v. Indiana Department of Natural Resources, 721 N.E.2d 234 (Ind.

1999). In that case we observed that Benton “ultimately held” that “the

city was not entitled to summary judgment as a matter of law on the issue

of its ‘long-recognized duty to maintain a public recreational facility in

a reasonably safe manner.’” Id. at 236 (quoting Benton, 721 N.E.2d at

233). This passage merely describes the result in Benton; it does not

limit Benton’s application to its factual setting. Rather, Benton stands

for the general proposition that common law immunity with respect to all

governmental activities is limited to activities “closely akin” to the

three Campbell areas.

In sum, we do not think the common law confers blanket immunity for

every school and every other governmental entity that fails to take

reasonable precautions for the safety of persons or their facilities. If

the Campbell exception extended as far as the District proposes, it would

grant immunity to any and all governmental units that fail to arrange

reasonable security. Like many governmental units, and unlike the police

who were immune in Simpson’s Food Fair, the District’s principal mission is

not to prevent crime. Indeed, Campbell itself appears to limit its law

enforcement immunity to “cities and states” that understand their role as

providing general police protection throughout the jurisdiction. Campbell,

284 N.E.2d at 737.

B. Indiana Tort Claims Act Immunity

The District argues that the Court of Appeals failed to address its

claim of immunity under the Indiana Tort Claims Act. I.C. § 34-13-3-3.

Specifically, the District contends that both section 3(9) and 3(7)[2] of

the ITCA shield the District from liability for negligence. “The party

seeking immunity bears the burden of establishing its conduct comes within

the Act.” Mullin, 639 N.E.2d at 281.

1. Immunity for Acts of Non-Governmental Employees

The District is a governmental entity within the meaning of the

ITCA[3] and therefore enjoys the immunity conferred by the statute pursuant

to Indiana Code section 34-6-2-49. Section 3(9) provides, “A governmental

entity or an employee acting within the scope of the employee’s employment

is not liable if a loss results from . . . [t]he act or omission of anyone

other than the governmental entity or the governmental entity’s employee.”

Section 9 immunity applies in “actions seeking to impose vicarious

liability by reason of conduct of third parties” other than governmental

employees acting within the scope of their employment. Hinshaw v. Bd. of

Comm’rs of Jay County, 611 N.E.2d 637, 640-41 (Ind. 1993). “Under such

circumstances, the alleged basis of governmental entity liability is the

act or omission of a third person not within the scope of employment as a

government employee.” Id. at 641.

The District is correct that “a principal is not liable for the

negligence of an independent contractor.” Bagley v. Insight Communications

Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995). And the District is also

correct that the statute does more for governmental entities than the

common law does for others. Thus, the District contends that it is immune

to the extent liability is predicated on the act or omission of Northeast

or Northeast’s employees. However, there is a dispute of fact over whether

the injuries King suffered were caused by an act or omission of Northeast

or by the District itself. One of King’s allegations is that the District

was negligent because the Assistant Vice Principal Bart Austin, who

normally stayed outside the school building to personally monitor the

students’ departure, was absent the day of King’s incident and did not find

a replacement. The District has not shown as a matter of law that its

conduct comes within the Act. Accordingly, summary judgment for the

District on the basis of section 3(9) is inappropriate.

2. Immunity for Law Enforcement

The District also relies on section 3(7) of the ITCA for its claim of

immunity. That section provides:

A governmental entity or an employee acting within the scope of the

employee’s employment is not liable if a loss results from . . . [t]he

adoption and enforcement of or failure to adopt or enforce a law

(including rules and regulations), unless the act of enforcement

constitutes false arrest or false imprisonment.

I.C. § 34-13-3-3(7). The District argues it is immune pursuant to section

3(7) because “the [District] failed to prevent an assault or battery, or

failed to enforce a rule or regulation (student misconduct, substantial

disobedience or unlawful activity).” Appellee’s Br. in Supp. of Pet. to

Trans. at 13.

In Quakenbush v. Lackey, 622 N.E.2d 1284, 1288-91 (Ind. 1993), this

Court discussed at some length the meaning of “enforcement” as used in

section 3(7).[4] We concluded first that section 3(7) was intended to

codify the common law of immunity in this area as that law existed at the

time the ITCA was passed. Second, under that common law regime,

governments and their employees were subject to liability for “the breach

of private duties owed to individuals, but were immune from liability for

the breach of public duties owed to the public at large.” Id. at 1291.

Subsequent Indiana decisions relied on this public/private duty test in

applying section 3(7),[5] but others have concluded Benton eliminated the

test.[6] As explained in Part I.A., Benton addressed only the common law

presence or absence of duty of a governmental unit. It did not deal with

statutory immunity under the ITCA. Indeed, Benton expressly observed, “In

general, it is only after a determination is made that a governmental

defendant is not immune under the ITCA that a court undertakes the analysis

of whether a common law duty exists under the circumstances.” Benton, 721

N.E.2d at 232.

Although Benton did not expressly disavow Quakenbush’s public/private

duty test under section 3(7), we believe it implicitly achieved this

result. Quakenbush held that section 3(7) adopted the common law of

immunity for law enforcement activities, and concluded that the

public/private duty test was the common law approach to law enforcement

immunity at the time the ITCA was enacted. We do not believe the

public/private duty test was frozen by statutory adoption. It is a tool

for applying the “adopting or enforcing of a law” language, but as Benton

pointed out, this test is frequently not susceptible to ready application.

Id. For that reason, Benton overruled the public/private duty test at

common law. We think the courts remain free to interpret the statutory

language without referring to the public/private duty analysis when

appropriate.

We think the statute itself provides the key to resolution of the

immunity issue in this case. Section 3(7) confers immunity on governmental

units for “the adoption and enforcement of or failure to adopt or enforce a

law.” We think this language restricts the immunity to the adoption and

enforcement of laws that are within the assignment of the governmental

unit. First, it is clear that “laws” include “rules and regulations.”

Thus, a variety of administrative and executive functions engage in some

immunized activities. But not all actions are immunized. The statute

refers to immunity for the “adoption and enforcement” of a law. Only a

unit charged with regulating the areas of law involved can “adopt” a law.

Similarly, the “enforcement” of a law is an activity assigned to specific

units of government: the police, the Board of Health, etc. The immunity

for failure to “adopt” or “enforce” is similarly limited.

We think this interpretation is supported by the language of section

3(7) and is also consistent with other provisions of the ITCA and existing

case law. An employee is protected under the terms of section 3 of the

ITCA only if “acting within the scope of the employee’s employment.” I.C.

§ 34-13-3-3. Similarly, case law has held that the ITCA expresses a

legislative policy to protect the State’s finances and also 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.’” Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452

(Ind. 2000) (quoting Ind. Dep’t of Corr. v. Stagg, 556 N.E.2d 1338, 1343

(Ind. Ct. App. 1990), trans. denied). See also Martin v. Heffelfinger, 744

N.E.2d 555, 559 (Ind. Ct. App. 2001); Ind. State Police Dep’t v. Swaggerty,

507 N.E.2d 649, 651-52 (Ind. Ct. App. 1987), trans. denied; Bd. of Comm’rs

of Hendricks County v. King, 481 N.E.2d 1327, 1330 (Ind. Ct. App. 1985).

An employee’s scope of employment consists of activities involving the

pursuit of the governmental entity’s purpose. Similarly, we think the

legislature intended that a governmental entity be immune only for failing

to adopt or enforce a law that falls within the scope of the entity’s

purpose or operational power.

Case law supports the notion that section 3(7) is limited to those

laws, rules, or regulations that fall within the realm of the governmental

entity. Stagg, 556 N.E.2d at 1342 (“The defendants were acting within the

scope of their employment in enforcing laws, rules or regulations

pertaining to the standards and procedures for the operation of the

correctional facilities pursuant to [the Indiana statute].”); City of

Seymour v. Onyx Paving Co., Inc., 541 N.E.2d 951, 958 (Ind. Ct. App. 1989)

(“[T]he zoning ordinance at issue here is part of the municipal code of

Seymour [and] adopted in accordance with [the Indiana act] delegating to

local legislative bodies the authority to enact zoning ordinances and

amendments thereto.”), trans. denied; Ind. Dep’t of Natural Res. v. Taylor,

419 N.E.2d 819, 823 (Ind. Ct. App. 1981) (“Insomuch as this action was

undertaken by the Department pursuant to a duty entrusted to it by statute,

it qualifies for immunity under [subsections (5), (6), or (7)].”).

We do not think a school district is “enforcing” a law when it

provides for school security, even if the action taken may deter or prevent

acts that would violate a law “adopted” and “enforced” by other units of

government. It is correct, as the District points out, that schools are

authorized to promulgate rules for school discipline.[7] But preventing

crime is not an activity schools are expected to carry out pursuant to a

school’s operational purpose. Put another way, even though the school must

reasonably supervise the students for safety reasons, it is not the mission

of the school to prevent crime. Indeed, the statutes the Indiana

legislature enacted on behalf of the elementary and secondary schools

providing for student discipline authorize disciplinary rules “reasonably

necessary to carry out the school purposes.” I.C. § 20-8.1-5.1-7(c).

Schools have the power to expel or suspend students for student misconduct

or unlawful activity and can claim immunity for doing so or failing to do

so. But we think a school has no immunity for failing to prevent an

assault and battery. It has the obligation to take reasonable steps to

provide security on its premises, even if it has not adopted any rules or

regulations prohibiting assaults. As the District stated in its brief,

“Law enforcement is not a traditional responsibility of the School.”

Appellee’s Br. in Supp. of Pet. to Trans. at 16. Accordingly, immunity for

“enforcement” of laws prohibiting an assault and battery is reserved to

governmental units with police powers—not schools.

The District relies on Klobuchar v. Purdue Univ., 553 N.E.2d 169 (Ind.

Ct. App. 1990), in claiming it is immune under section 3(7). In Klobuchar,

the plaintiff, a part-time student at Purdue University, was seriously

injured when attacked by her estranged husband after class. When the

plaintiff was attacked, she was parked in a campus parking lot that

required vehicles to exhibit a school parking ticket. The campus police

routinely checked vehicles in the lot for permits. The plaintiff claimed

her injuries were proximately caused by the University’s failure to provide

adequate security for the school’s parking lot. The University moved for

summary judgment claiming it was immune under the ITCA. Id. at 170. The

court found that the University was given the authority to provide campus

security by statute, and the decision to provide security or to patrol the

parking lot for permit violators is a decision on whether or not to enforce

the law. Id. at 173. Relying in part on the public/private duty test, the

court concluded that the police duty is one owed to the general public and

does not give rise to an individual action. As a result, the University

was immune from liability for failing to enforce the law. Id. Assuming

Klobuchar was correctly decided, it does not extend immunity to the

District in King’s case. Purdue University, pursuant to statute, provided

campus security for the safety of the general public.[8] Id. Here,

although the school must exercise reasonable care and supervision for the

safety of the children under its control, it is not charged with general

law enforcement on its premises. See Miller, 308 N.E.2d at 706.

C. Negligence

In order to prevail on a claim of negligence the plaintiff must show:

(1) duty owed to plaintiff by defendant; (2) breach of duty by allowing

conduct to fall below the applicable standard of care; and (3) compensable

injury proximately caused by defendant’s breach of duty. Ashcraft v. N.E.

Sullivan County Sch. Corp., 706 N.E.2d 1101, 1103 (Ind. Ct. App. 1999).

This jurisdiction has long recognized that school authorities owe a “duty .

. . ‘to exercise reasonable care and supervision for the safety of the

children under their control.’” Mangold, 756 N.E.2d at 974 (quoting

Miller, 308 N.E.2d at 706). Although the existence of duty is a matter of

law for the courts to decide, a breach of duty is usually a matter left to

the trier of fact. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371-72 (Ind.

1992). Only where the facts are undisputed and lead to but a single

inference or conclusion may the court as a matter of law determine whether

a breach of duty has occurred. Id. at 1372.

King alleges the District failed to exercise reasonable care in part

because Assistant Vice Principal Bart Austin, who normally stayed outside

the school building to personally monitor the students’ departure, was

absent the day of King’s incident and did not find a replacement. King

contends that he would not have been injured if Austin had been present at

his regular post to observe and deter criminal activity in the parking lot.

The District essentially responds that it discharged any duty owed to

students by entering into a contract with Northeast to provide services for

North Central High School. Essentially, the District takes the position

that it has breached no duty owed to its students.

Summary judgment is inappropriate in this case because there is a

discrepancy in the evidence bearing on the extent of control retained by

the District, and also how it was exercised. The contract between

Northeast and the District required Northeast officers to be outside from

7:00 a.m. to 3:30 p.m.[9] We also have the incomplete testimony that

District officials were, on some occasions, present in the parking lot at

3:00 p.m., but at least Austin, the senior person among them, was absent on

April 18. Further, whether merely entering a contract is all the District

should have done or was required to do in discharging its duty of care and

supervision for the safety of its students is a matter for the jury to

decide and is not appropriate for summary disposition.

II. Northeast Security, Inc.

The trial court granted Northeast’s motion for summary judgment on the

grounds that a direct action against Northeast was not consistent with the

terms of the contract entered into by the District and Northeast and that

King was not a third party beneficiary to the contract because King was

unable to show the District owed a particularized obligation to any single

student of the school.

Both King and Northeast focus on whether Northeast owed a duty to King

under a negligence theory. Both cite the proposition that “[t]he status of

a third party beneficiary may be used as a basis of duty in a negligence

action.” Emmons v. Brown, 600 N.E.2d 133, 134 (Ind. Ct. App. 1992).

Northeast relies on the Court of Appeals’ view that Northeast did not

assume a duty because there was no clear intent to benefit King

specifically under the contract with the District. See King, 732 N.E.2d at

840. Northeast further argues the District, and not Northeast, is the

premises owner so any duty created under a premises liability theory can

only be owed by the District. Northeast also contends it did not have a

duty to King because no relationship existed between King and Northeast and

because Northeast did not have knowledge of prior criminal activity on the

District’s premises.

Status as a third party beneficiary has been held sufficient to create

tort liability to the beneficiary on the part of a party to the contract.

Emmons, 600 N.E.2d at 134. We think, however, that it is not necessary

that the plaintiff be a third party beneficiary in order to assert a claim.

King’s claim is a tort claim for simple negligence. Whether or not King

and his fellow students acquired rights under the agreement under contract

law, we think it is clear that the purpose of the agreement was to provide

security services for the school. We think it equally plain that the

agreement was to protect all members of the public, including students, who

were properly on the premises. Under the contract, Northeast had an

obligation to the District. We see no reason why the contract requiring

Northeast to “[p]rovide exterior patrols[,] insur[e] all personnel that

enter the premise[s] are possessing the proper identification, [and] be

observant of any criminal activity which may occur in the parking lots”

would not include providing safety for students. R. at 53.

The students, including King, are plainly among the persons who are

properly on the premises and entitled to expect reasonable steps to be

taken for their safety. The District in turn has an obligation to its

students and others to take reasonable steps for their safety. We see no

reason why negligent failure to carry out these assumed responsibilities

should not give rise to liability to students who are injured as a result.

There may be significant issues as to negligence and causation that remain

in this case. But at this summary judgment stage, there is nothing

inherent to the students’ status or relationship to the District or

Northeast that prevents recovery. Nor is the class of persons who are

properly on school premises so remote that liability to them should be

precluded as a mater of law for injuries resulting from negligent

performance of assumed responsibilities.

In rebuttal to Northeast’s argument that it never assumed a duty to

act for King’s benefit, King points to American Legion Pioneer Post v.

Christon, 712 N.E.2d 532 (Ind. Ct. App. 1999), trans. denied,[10] and

Lather v. Berg, 519 N.E.2d 755 (Ind. Ct. App. 1988).[11] Christon stated:

[A] duty may be imposed upon one who by affirmative conduct . . .

assumes to act, even gratuitously, for another to exercise care and

skill in what he has undertaken. It is apparent that the actor must

specifically undertake to perform the task he is charged with having

performed negligently, for without the actual assumption of the

undertaking there can be no correlative legal duty to perform the

undertaking carefully.

Christon, 712 N.E.2d at 535 (quoting Lather, 519 N.E.2d at 766). Northeast

argues Christon is inapplicable because King “submitted no evidence showing

either an attempt to protect Nick King or to restrain his assailants by

Northeast.” Appellee’s Br. in Resp. to Pet. to Trans. at 3.

The issue is not how, but whether, an obligation is undertaken. The

guard in Christon agreed to achieve a specific goal of keeping a designated

individual away from the party where the plaintiff was injured.

Northeast’s more general undertaking was to “observe criminal activity in

the parking lot.” If the trier of fact concludes that Northeast’s failure

to “observe” King’s assault was due to its negligence and was a proximate

cause of King’s injuries, recovery is appropriate.

In support of its argument that it did not have knowledge of prior

criminal activity on the premises, and therefore, it cannot be liable for

King’s injuries, Northeast points to language in Christon declaring “the

duty to anticipate and to take steps to protect against a criminal act

arises only when the facts of a particular case make it reasonably

foreseeable that a criminal act is likely to occur.” Christon, 712 N.E.2d

at 534. We disagree with Northeast’s contentions for two reasons. First,

the quoted language from Christon was in the course of analyzing the

liability of the premises owner, American Legion, not the security service

the American Legion had hired. Second, the presence of prior criminal

activity is relevant to the standard of reasonable conduct of both the

District (is there a need for additional precautions) and Northeast (is it

reasonable to abandon surveillance of the parking lot at 3:00 p.m.).

Accordingly, those specifically engaged in providing services undertaken

for security services may well be found to have a higher standard of care

than the public at large, whether or not they are on notice of specific

activity at the site. Rosh v. Cave Imaging Sys., Inc., 32 Cal. Rptr. 2d

136, 139 (Cal. Ct. App. 1994) (establishing the requisite standard of care

of a security guard company through expert testimony); Erickson v. Curtis

Inv. Co., 447 N.W.2d 165, 170-71 (Minn. 1989) (noting that a security firm

hired by a commercial parking ramp owner has a “duty to use that degree of

care which a reasonably prudent professional security firm would use”).

Finally, Northeast contends that the District is the premises owner

and Northeast never owned, leased, or otherwise controlled the premises.

Northeast argues that any duty owed under the premises liability theory can

be owed by the District alone. Again we disagree. The contract provided

for the security guards’ presence, observation, and security of the

premises. The contract specifically stated, “These officers are trained

personnel and understand the procedures of patrol.” R. at 53. Northeast

was paid $6,375 every two weeks for these services. Northeast, as a

privately-hired and compensated security service, was in at least as good a

position as the District to prevent injuries to third parties on the

premises.

Conclusion

Having previously granted transfer, we reverse the trial court’s

grant of summary judgment in favor of the District and in favor of

Northeast. This cause is remanded.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.

-----------------------

[1] Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind.

1994) adopted a public/private duty test. A private duty, and resulting

vulnerability to suit, was imposed on governmental entities where each of

the following was present: (1) an explicit assurance by the unit that it

would act on behalf of the injured party; (2) knowledge on the part of the

unit that inaction could lead to harm; and (3) justifiable and detrimental

reliance by the injured party on the unit’s affirmative undertaking. Id.

at 284. The following year, Henshilwood v. Hendricks County, 653 N.E.2d

1062, 1067-68 (Ind. Ct. App. 1995), trans. denied, overruled by Benton, 721

N.E.2d at 224, held that the public/private duty test applies only when a

governmental entity is alleged to have been negligent by failing to act

(nonfeasance), but does not apply when the governmental entity has

affirmatively acted to create the plaintiff’s perilous situation

(malfeasance).

[2] We note that sections 3(9) and 3(7) are currently codified at

sections 3(10) and 3(8) respectively. However, the wording of the statute

remains identical to the former sections 3(9) and 3(7). Accordingly, for

the sake of consistency we will refer to sections 3(9) and 3(7) for the

remainder of this opinion.

[3] See I.C. § 34-6-2-110 (providing in pertinent part, “[p]olitical

subdivision, for purposes of IC § 34-13-3, means a . . . (9) school

corporation”).

[4] This Court originally interpreted section 3(7) to mean that

governmental entities would be immune under the ITCA for “all acts of

enforcement save false arrest and imprisonment.” Seymour Nat’l Bank v.

State, 422 N.E.2d 1223, 1226 (Ind. 1981), clarified on reh’g, 428 N.E.2d

203 (Ind. 1981). This Court later retreated from Seymour’s broad view of

law enforcement immunity and held the legislature intended to include “only

those activities attendant to effecting the arrest of those who may have

broken the law.” Tittle v. Mahan, 582 N.E.2d 796, 801 (Ind. 1991). The

Court subsequently revisited the issue in Quakenbush and overruled Tittle

by reaffirming the statutory language confirming immunity under section

3(7) for the decision of any governmental entity and its employees about

“whether to adopt or enforce any statute, rule, or regulation.”

Quakenbush, 622 N.E.2d at 1287 n.3.

[5] See, e.g., Kemezy v. Peters, 622 N.E.2d 1296, 1297 (Ind. 1993);

Fries v. Fincher, 622 N.E.2d 1294, 1295 (Ind. 1993); Belding v. Town of New

Whiteland, 622 N.E.2d 1291, 1293 (Ind. 1993); Minks v. Pina, 709 N.E.2d

379, 386 (Ind. Ct. App. 1999) (Ratliff, J., dissenting), trans. denied.

[6] See, e.g., City of Anderson v. Davis, 743 N.E.2d 359, 363-64

(Ind. Ct. App. 2001), trans. denied (noting Benton “explicitly disavowed

the Quakenbush public/private duty test”); O’Bannon v. City of Anderson,

733 N.E.2d 1, 2-3 (Ind. Ct. App. 2000) (recognizing that Quakenbush’s

public/private duty test was replaced by “the common law presumption that a

governmental unit ‘is bound by the same duty of care as a non-governmental

unit except where the duty alleged to have been breached is so closely akin

to one of the limited exceptions that it should be treated as one as well’”

(quoting Benton, 721 N.E.2d at 230)); Minks, 709 N.E.2d at 382 (ignoring

Quakenbush’s public/private duty test and applying Mullin’s “compelling or

attempting to compel” test).

[7] Indiana Code section 20-8.1-5.1-8 provides that students can be

suspended or expelled for student misconduct or substantial disobedience on

school grounds immediately after school hours. I.C. § 20-8.1-5.1-8.

Indiana Code section 20-8.1-5.1-9 provides that students may be suspended

or expelled for engaging in unlawful activity on or off school grounds if

the activity interferes with school purposes or educational functions or

the student’s removal is necessary to restore order or protect persons on

the school property. I.C. § 20-8.1-5.1-9.

[8] I.C. § 20-12-3.5-1.

[9] Northeast designated evidence in support of its motion for

summary judgment that Austin told Northeast officers that they should

abandon their posts outside the school building and come inside before the

3:00 p.m. dismissal. John Sebring, the chief of Northeast, testified that

the assigned posts of the security officers “changed daily per Mr. Bart

Austin. At 2:40 p.m., the officers generally moved from outside to inside

the school. The decision to have the officers move inside was made by

either Mr. Austin or Marion County Sheriff’s Department officers.” R. at

57. However, this evidence was not designated by King in his response to

the District’s motion for summary judgment, R. at 241-42, and therefore,

was not before the court as to the District’s motion. Ind. Trial Rule

56(C).

[10] In Christon, the American Legion rented a portion of its

building to a sorority for a party attended by the plaintiff. The American

Legion employed a security service to patrol the parking lot and outside

premises, but not the interior of the building. The security services that

were provided typically included “watching the cars in the parking lot to

prevent them from being broken into and walking older women to their cars

on bingo night.” Christon, 712 N.E.2d at 535. The security guard who was

patrolling the night of the party was asked by the president of the

sorority to watch the door and entrance to the party. After some time, a

sorority member escorted a man from the party and informed the security

guard that she wanted the individual to leave because he had been in an

argument and commented that he had a handgun. The sorority member

instructed the guard that the man was not to be allowed to return to the

party so long as he had a weapon on his person. Id. at 536. The man left,

but tried to re-enter the party later. The security guard allowed him to

enter after patting him down and determining that he did not have a weapon.

Id. at 537. Subsequently, the plaintiff was shot during the party,

although the identity of the shooter was not determined. Id. at 534. The

court found that the designated evidence raised genuine issues of material

fact as to whether the security service, through the affirmative actions of

the security guard, assumed a duty to protect the people in attendance at

the party when the guard agreed to prevent the man from returning to the

party with a weapon. Id. at 537.

[11] In Lather, Keith Murphy, a minor, left the home of Joseph Berg,

one of the defendants, in a drunken rage driving at speeds in excess of one

hundred miles per hour. Murphy crashed into the plaintiff’s patrol car

killing him. Lather, 519 N.E.2d at 757. On the evening of the accident,

Berg had possession of Murphy’s car keys at one point, but gave them back

to Murphy. Id. at 758. The administratix of the plaintiff’s estate sued

the defendants claiming, among other things, that because Berg took

possession of Murphy’s car keys, the defendants negligently performed a

gratuitously assumed duty to protect the deceased victim. Id. at 765. The

court found that the defendants did not assume a gratuitous duty to protect

the deceased victim because Murphy, who had an extra set of keys to his

car, never relinquished control of the keys and the defendants never took

control of the car. Id. at 767.