Mangold Ex Rel. Mangold v. Indiana Department of Natural Resources

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE

INDIANA DEPARTMENT OF

GARY K. KEMPER NATURALRESOURCES:

Kemper, Barlow & Sparks

Madison, Indiana JEFFREY A. MODISETT

Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

SWITZERLAND COUNTY SCHOOL

CORPORATION:

DANFORD R. DUE

LESLIE A. BEHRMAN

Stewart Due Doyle & Pugh, LLP

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

MATTHEW MANGOLD, a minor by his )

next friend, MICHAEL MANGOLD, )

) Supreme Court Cause Number

Appellant-Plaintiff, ) 78S01-0110-CV-479

)

v. )

)

INDIANA DEPARTMENT OF NATURAL ) Court of Appeals Cause Number

RESOURCES and SWITZERLAND ) 78A01-9903-CV-88

COUNTY SCHOOL CORPORATION, )

)

Appellees-Defendants. )

APPEAL FROM THE SWITZERLAND CIRCUIT COURT

The Honorable Carl H. Taul, Judge

Cause No. 78C01-9801-CT-002

ON PETITION TO TRANSFER

October 25, 2001

RUCKER, Justice

We grant transfer in this case and hold that on a complaint for

negligence, the common law duty of care that a school owes its students is

not dependent upon whether an injury a student suffers occurs on school

property. We also reaffirm that subsection nine of the Indiana Tort Claims

Act provides immunity to governmental entities only under very narrow

circumstances.

Factual and Procedural History

On March 12, 1997, a Department of Natural Resources (“DNR”)

conservation officer conducted a hunter education class for students at

Switzerland County Junior High School. The program was part of the

school’s science curriculum and addressed firearm safety. While

instructing the class, the officer dismantled a shotgun shell, showed the

students the component parts, and explained what the parts do when the gun

is fired. Among other things, the officer told the students that when the

firing pin strikes the primer, the primer “sparks” setting fire to the

powder. The officer also warned the students that they should never handle

ammunition unless accompanied by an adult.

Twelve-year-old Matthew Mangold attended the class. After school,

Matthew and his brother partially disassembled one of their father’s

shotgun shells. With his brother holding the shell with pliers, Matthew

struck the firing pin with a hammer and chisel. Rather than causing a

“spark” as Matthew expected, the shell exploded with a fragment striking

Matthew in the face and leaving him blind in the left eye.

Acting as next friend, Matthew’s father filed a complaint for

negligence against DNR as well as Switzerland County School Corporation

(“School”). The complaint alleged that DNR was negligent in its

instruction on firearm safety and School was negligent in its supervision

of the officer. Both DNR and School (referred to collectively as

“Defendants”) filed answers that included the affirmative defenses of

contributory negligence and immunity under the Indiana Tort Claims Act.

After conducting discovery, Defendants also filed motions for summary

judgment. DNR claimed immunity under the Indiana Tort Claims Act, and

School argued that it owed Matthew no duty. The trial court granted both

motions. Finding that DNR was immune under subsection nine of the Indiana

Tort Claims Act and that Matthew as well as his father were contributorily

negligent, on appellate review the Court of Appeals affirmed the trial

court’s grant of summary judgment in favor of DNR. Mangold v. Indiana

Dep’t of Natural Res., 720 N.E.2d 424, 430 (Ind. Ct. App. 1999). The Court

of Appeals also affirmed the trial court’s grant of summary judgment in

favor of School ruling that it owed Matthew no duty because “Matthew was

injured at his home and not at school.” Id. at 429. In order to address

the law in this area, we grant Matthew’s petition to transfer, but we

affirm the trial court.

Standard of Review

Our standard of review is the same as that used in the trial court:

summary judgment is appropriate only where the evidence shows that there is

no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Ind. Trial Rule 56(C); Tom Wat, Inc. v. Fink,

741 N.E.2d 343, 346 (Ind. 2001). All facts and reasonable inferences drawn

from those facts are construed in favor of the non-moving party. Tom Wat,

741 N.E.2d at 346. Review of a summary judgment motion is limited to those

materials designated to the trial court. T.R. 56(H); Tom Wat, 741 N.E.2d

at 346. We must carefully review a decision on a summary judgment motion to

ensure that a party was not improperly denied its day in court. Tom Wat,

741 N.E.2d at 346.

Discussion

I. Matthew’s complaint against School

In Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701, 706 (1974), this

Court emphasized that schools are neither insurers of their pupils’ safety

nor strictly liable for any injuries that may occur to them. Nonetheless,

we recognized a “duty for school authorities to exercise reasonable care

and supervision for the safety of the children under their control.”

Miller, 308 N.E.2d at 706. We have asserted this formulation in subsequent

cases. See, e.g., Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552,

554 (Ind. 1987) (holding the trial court erred in determining as a matter

of law that the school did not breach its duty to a high school student

injured during baseball practice); Norman v. Turkey Run Cmty. Sch. Corp.,

274 Ind. 310, 411 N.E.2d 614, 618 (Ind. 1980) (finding no breach of duty

where a student was injured while running on the playground).

Seizing on the “supervision” language in Miller, the Court of Appeals

previously has declared that no duty exists where the injury to a student

occurs off school property. See Brewster v. Rankins, 600 N.E.2d 154, 158

(Ind. Ct. App. 1992) (holding that teacher and school had no duty to

prevent injury suffered by a child when his nine-year-old brother hit him

with a golf club because “the accident occurred off of School property and,

although Teacher and School acquiesced in the golf club’s use, the activity

was not supervised by School or its officials . . . .”); Swanson v. Wabash

Coll., 504 N.E.2d 327, 331 (Ind. Ct. App. 1987) (holding school not liable

for injuries sustained by a college student while practicing baseball at an

off-campus location because school had no “duty to supervise []

recreational baseball practices.”). Relying on Brewster and Swanson, the

Court of Appeals in this case likewise reasoned that School owed Matthew no

duty because his injuries did not occur on school property.

As this Court has previously observed, “Duty is not sa[]crosanct in

itself, but is only an expression of the sum total of those considerations

of policy which lead the law to say that the plaintiff is entitled to

protection.” Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind. 1991) (quoting W.

Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 (5th ed.

1984)). By declaring that a school may be held liable for the injuries

suffered by its students, we essentially have made a policy decision that a

school’s relationship to its students, the foreseeability of harm, and

public policy concerns entitle students to protection. We articulate this

expression of liability as a school’s duty to exercise “reasonable care and

supervision” for its students. Miller, 308 N.E.2d at 706. An approach

that focuses on rearticulating that duty based upon a given set of facts is

misplaced in our view because to do so presupposes that an issue which is

thought to be

settled must be revisited each time a party frames the duty issue a little

differently.[1] Rather, because a school’s duty to its students already

has been established, the focus shifts to whether a given set of facts

represents a breach of that duty.

Although the existence of duty is a matter of law for the court to

decide, a breach of duty, which requires a reasonable relationship between

the duty imposed and the act alleged to have constituted the breach, is

usually a matter left to the trier of fact. See Delta Tau Delta, Beta

Alpha Chapter v. Johnson, 712 N.E.2d 968, 974 (Ind. 1999). 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. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1372 (Ind. 1992). As

applied to the facts in this case, the question is whether School breached

its duty of reasonable care and supervision by providing Matthew with

inaccurate information and inadequate warnings when it instructed him on

firearm safety. The fact that Matthew’s injuries occurred off school

property may have a bearing on the foreseeability component of proximate

causation. See Bader v. Johnson, 732 N.E.2d 1212, 1216-17 (Ind. 2000)

(stating that in a negligence action 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). However, we see no

relationship between the location of Matthew’s injuries and School’s duty

of reasonable care and supervision. Therefore, we conclude that the trial

court erred in granting summary judgment to School on the ground that, as a

matter of law, School owed Matthew no duty.

II. Matthew’s complaint against DNR

The Indiana Tort Claims Act (“ITCA”) allows suits against

governmental entities for torts committed by their employees but grants

immunity under the specific circumstances enumerated in Indiana Code

section 34-13-3-3. Peavler v. Monroe County Bd. of Comm’rs, 528 N.E.2d 40,

42 (Ind. 1988). Whether a governmental entity is immune from liability

under the ITCA is a question of law for the court to decide. Gibson v.

Evansville Vanderburgh Bldg. Comm’n, 725 N.E.2d 949, 952 (Ind. Ct. App.

2000), trans. denied. Because the ITCA is in derogation of the common law,

we construe it narrowly against the grant of immunity. Greater Hammond

Cmty. Servs., Inc. v. Mutka, 735 N.E.2d 780, 781 (Ind. 2000). The party

seeking immunity bears the burden of establishing that its conduct comes

within the ITCA. Peavler, 528 N.E.2d at 46.

DNR asserts that it is immune from liability in this case under

subsection nine of the ITCA which dictates: “A governmental entity or an

employee acting within the scope of the employee’s employment is not liable

if a loss results from: . . . the act or omission of anyone other than the

governmental entity or the governmental entity’s employee.” Ind. Code § 34-

13-3-3(9). Relying on Spier v. City of Plymouth, 593 N.E.2d 1255 (Ind. Ct.

App. 1992), DNR argues that it is immune under this subsection because “the

proximate cause of Matthew’s injuries” is the act of Matthew’s father in

“leaving live ammunition accessible to his son while he was at work.” Br.

of Appellee at 8.

We addressed subsection nine immunity in Hinshaw v. Board of

Commissioners of Jay County, 611 N.E.2d 637 (Ind. 1993), and specifically

rejected the rationale in Spier that subsection nine confers immunity to

governmental entities and employees when an unforeseeable act of a third

party is an intervening, proximate cause of the injury. Id. at 638. In

determining when governmental entities and employees may seek immunity

under subsection nine, we observed that “[t]he law has long recognized a

number of circumstances in which tort liability may be vicariously imposed

upon persons for the conduct of agents who are not employees or subject to

any right of control by the employer.” Id. at 640 (collecting cases).

Therefore, we narrowly construed subsection nine immunity, finding that it

only applies in “actions seeking to impose vicarious liability[2] by reason

of conduct of third parties” other than government employees acting within

the scope of their employment. Id. “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.

In this case Matthew is not seeking to impose vicarious liability on

DNR by reason of conduct of a third party “other than [a] government

employee acting within the scope of the employee’s employment.” Id.

Rather, Matthew’s complaint is founded upon the acts of the officer acting

within the scope of his employment for DNR. Therefore, the trial court’s

grant of summary judgment in favor of DNR cannot be sustained on the ground

that DNR is immune under subsection nine of the ITCA.

III. Contributory Negligence

Although summary judgment in favor of School cannot be sustained on

the ground that School owed Matthew no duty; and summary judgment in favor

of DNR cannot be sustained on the ground of immunity under the ITCA;

according to a majority of this Court, Matthew still is entitled to no

relief because of his own contributory negligence. This view is expressed

in the separate opinion of Chief Justice Shepard.

However, I take a different view. Contributory negligence is generally

a question of fact for the jury and as such is not an appropriate matter

for summary judgment. Butler v. City of Peru, 733 N.E.2d 912, 917 (Ind.

2000). Contributory negligence becomes a question of law for the court

where the facts are undisputed and only a single inference can reasonably

be drawn from those facts. Jones v. Gleim, 468 N.E.2d 205, 207 (Ind.

1984); see also St. John Town Bd. v. Lambert, 725 N.E.2d 507, 516 (Ind. Ct.

App. 2000).

In this jurisdiction children under the age of seven are conclusively

presumed to be incapable of contributory negligence; children between the

ages of seven and fourteen are rebuttably presumed to be incapable of

contributory negligence; and absent special circumstances, children over

the age of fourteen are chargeable with exercising the standard of care of

an adult. Creasy v. Rusk, 730 N.E.2d 659, 662 (Ind. 2000). Children

between the ages of seven and fourteen are required to exercise due care

for their own safety under the circumstances of a child of like age,

knowledge, judgment, and experience. Id.

The record shows that at the time of his injury Matthew was twelve

years old. As such, he is presumed to be incapable of contributory

negligence, although the presumption may be rebutted. Here, the officer

told the students that when the firing pin strikes the primer, the primer

“sparks” setting fire to the powder. When Matthew struck the firing pin

with a hammer and chisel, the shell exploded. Considering the standard to

which Matthew is held and the presumption attached to his conduct, I am

unprepared to say that as a matter of law Matthew was contributorily

negligent. It appears to me that such a determination should be made by a

jury as fact finder and should not be disposed of by summary disposition.

See, e.g., Brockmeyer v. Ft. Wayne Pub. Transp. Corp., 614 N.E.2d 605, 607

(Ind. Ct. App. 1993) (holding that the trial court erred in concluding that

a thirteen-year-old child who only paused at the centerline of a busy

street before crossing was contributorily negligent as a matter of law),

trans. denied; Maldonado v. Gill, 502 N.E.2d 1371, 1373 (Ind. Ct. App.

1987) (finding issue of contributory negligence of an eight-year-old child

who crossed in the middle of the street without yielding to traffic was a

question of fact for the jury), trans. denied. Accordingly, contrary to

the conclusion of the majority, I would reverse the grant of summary

judgment in favor of both School and DNR and remand this cause to the trial

court for further proceedings.

Conclusion

We hold that on a complaint for negligence, the common law duty of

care that a school owes its students is not dependent upon whether an

injury a student suffers occurs on school property. We also hold that

subsection nine of the Indiana Tort Claims Act provides immunity to

governmental entities only under very narrow circumstances. The judgment

of the trial court is hereby affirmed.

DICKSON, J., concurs.

SHEPARD, C.J., with whom SULLIVAN and BOEHM, JJ., join, concurs in Parts I

and II and delivers an opinion for the Court on Part III.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

INDIANA DEPARTMENT OF

Gary K. Kemper NATURAL RESOURCES:

Madison, Indiana

Jeffrey A. Modisett

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

SWITZERLAND COUNTY SCHOOL

CORPORATION:

Danford R. Due

Leslie A. Behrman

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

MATTHEW MANGOLD, a minor by his )

next friend, MICHAEL MANGOLD, )

)

Appellant (Plaintiff Below), ) 78S01-0110-CV-479

) in the Supreme Court

v. )

) 78A01-9903-CV-88

INDIANA DEPARTMENT OF NATURAL ) in the Court of Appeals

RESOURCES and SWITZERLAND COUNTY )

SCHOOL CORPORATION, )

)

Appellees (Defendants Below). )

APPEAL FROM THE SWITZERLAND CIRCUIT COURT

The Honorable Carl H. Taul, Judge

Cause No. 78C01-9801-CT-002

October 25, 2001

SHEPARD, Chief Justice.

All five Justices join Justice Rucker’s explication of the law on

governmental immunity as it applies to this case. The trial court and the

court of appeals wrongly held that the school and the Department of Natural

Resources were immune.

The trial court was correct, however, to grant summary judgment for

the defendants. This is not a case brought under Indiana’s Comparative

Fault Act, of course, because that Act does not apply to tort claims

against government entities. Ind. Code § 34-51-2-2. Instead, this case is

governed by the common law, under which even the slightest contributory

negligence by a plaintiff bars recovery. Sauders v. County of Steuben, 693

N.E.2d 16 (Ind. 1998).

Thus, to grant summary judgment to the defendants, the trial court

need only have been satisfied that a twelve-year-old who smashed live

ammunition with a hammer and chisel in the face of his recent firearm

safety instruction was minimally negligent as a matter of law. It was not

error for the court to reach that conclusion.

Sullivan and Boehm, JJ., concur.

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

[1] For example, in this case Matthew asserted, among other things,

that School “had a duty . . . to provide age appropriate curriculum to the

students and to teach that curriculum in an appropriate fashion.”

Br. of Appellant at 12. He cites no authority in support of this

articulation of School’s duty. And because this Court has already declared

the nature of the duty a school owes its students, it is unnecessary to

engage in the three-part Webb test to determine if the school has some

other additional duty. See Webb, 575 N.E.2d at 995 (declaring that in

defining duty, a court must balance: (1) the relationship between the

parties; (2) the reasonable foreseeability of harm to the person injured;

and (3) public policy concerns).

[2] See Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999)

(defining “vicarious liability” as “indirect legal responsibility” and

noting that it is a legal fiction by which a court can hold a party legally

responsible for the negligence of another, not because the party did

anything wrong but rather because of the party’s relationship to the

wrongdoer).