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
DAVID M. MATTINGLY
MARY NOLD LARIMORE
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 ). )
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.
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 courts 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).
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 Districts claim of immunity from Kings 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. Dept 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 Simpsons 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 schools 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. Appellees 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 schools 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 units 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 Bentons 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 Simpsons Food Fair, the Districts 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) See footnote 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 See footnote 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 employees employment is not liable if a loss results from . . . [t]he act or omission of anyone other than the governmental entity or the governmental entitys 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 Commrs 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 Northeasts 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 Kings 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 Kings 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 employees 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).
Appellees 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). See footnote 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), See footnote but others have concluded Benton eliminated the test. See footnote 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 Quakenbushs 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 employees employment. I.C. § 34-13-3-3. Similarly, case law has held that the ITCA expresses a legislative policy to protect the States 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. Dept 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 Dept v. Swaggerty, 507 N.E.2d 649, 651-52 (Ind. Ct. App. 1987), trans. denied; Bd. of Commrs of Hendricks County v. King, 481 N.E.2d 1327, 1330 (Ind. Ct. App. 1985). An employees scope of employment consists of activities involving the pursuit of the governmental entitys 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 entitys 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. Dept 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. See footnote But preventing crime is not an activity schools are expected to carry out pursuant to a schools 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. Appellees 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 powersnot 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 Universitys failure to provide adequate security for the schools 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 Kings case. Purdue University, pursuant to statute, provided campus security for the safety of the general public. See footnote 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.
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 defendants 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 Kings 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. See footnote 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.
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. Appellees
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. Northeasts more general undertaking was to observe criminal activity in the parking lot. If the trier of fact concludes that Northeasts failure to observe Kings assault was due to its negligence and was a proximate cause of Kings 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 Kings 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 Northeasts 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.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.