"Facts alleged in the complaint must be taken as true except to the extent they are negated by depositions, answers to interrogatories, affidavits, and admissions on file, or by testimony presented at a hearing on a motion for summary judgment."
How later courts described this case
- "Facts alleged in the complaint must be taken as true except to the extent they are negated by depositions, answers to interrogatories, affidavits, and admissions on file, or by testimony presented at a hearing on a motion for summary judgment."
- “The precise question before us is whether a special duty was owed to Tanasijevich by the Hammond Police.”
Written by the judges who cited it.
The opinion
OPINION CONCURRING IN RESULT
Garrard, P. J.
I concur in the result reached in this case for much the same reason I concurred in the result in Silverman v. City of Fort Wayne *676 (1976), 171 Ind.App. 415 , 357 N.E.2d 285 . On the record before it, the court’s action was premature.
In State v. Rankin (1973), 260 Ind. 228 , 294 N.E.2d 604 our Supreme Court established the Indiana standard for determining whether it is proper to grant a TR. 12(B)(6) motion for failure to state a claim. Upon the theory of the role of notice pleading the court held that dismissal at that stage is inappropriate unless it affirmatively appears that plaintiff would not be entitled to relief under any state of facts.
The pleadings here do not clearly negate the existence of a special duty owed to an individual. Even when pursuant to the rule the motion is treated as one for summary judgment, the answer is the same. The only matter presented in addition to the pleadings was plaintiff’s affidavit, and it did not negate the existence of a special duty. Accordingly, under the requirement of TR. 56 it cannot be said that the city has established its right to judgment as a matter of law.
However, at this point I diverge from Judge Staton. Simpson’s Food Fair, Inc. v. City of Evansville (1971), 149 Ind.App. 387 , 272 N.E.2d 871 and the other cited authorities recognize that where a special or private duty exists a governmental unit may be liable in damages. While I agree with that statement of the law, I am not certain that such duty arises if the police “should have known” retaliation was likely. Moreover, I doubt the statement as made meets the requirements of TR. 56(E). See Smith v. Young (1974), 160 Ind.App. 83 , 310 N.E.2d 84 .
Therefore, I concur in result.
Note —Reported at 383 N.E.2d 1081 .